To Speak or Not to Speak

Strossen and Kozinski

To Speak or Not to Speak

Strossen and Kozinski

To Speak or Not to Speak
An email conversation about the news of the day.
Sept. 25 1998 11:29 AM

Strossen and Kozinski

VIEW ALL ENTRIES

Good Morning, Nadine.

Advertisement

You raise an important point about the limits of judicial speech. As you note, judges have First Amendment rights, like everyone else, but there are certain limitations that are sensible and not terribly onerous. First, judges may not participate in political discourse. Thus, I am not allowed to make campaign speeches or endorse candidates for public office. Consistent with this rule, I believe I may not express a view on the merits of Ken Starr's report, nor on what sanctions, if any, Congress should impose on the president. I may, however, comment on other issues raised by the controversy--as I did on Wednesday when I discussed the significance of certain comments Mr. Clinton made during his grand jury testimony.

The second prohibition concerns speech about pending cases. Thus, if a case is pending in any court in the country, I may not comment on how I think it should come out. The case from the Second Circuit Court of Appeals we discussed yesterday is still pending because the parties may petition for rehearing or for certiorari in the Supreme Court. However, my only comment about the case concerned the fact that I had joined a dissent that took a contrary position. Since my views on this subject were already public by virtue of the dissent, I was free to comment to that extent only.

Contrary to popular belief, there is no general prohibition against judges discussing legal issues. To the contrary, the Code of Judicial Ethics imposes an affirmative obligation on judges to engage in educational activities in order to help the public gain a better understanding of our legal system. Many judges are nevertheless reluctant to do so, perhaps out of fear that they might inadvertently cross the line into impermissible speech. (As you are aware, this is what's known as a chilling effect.) I take a very different view. I believe that there are certain perspectives on the law and other matters that judges are particularly well qualified to discuss because of the unique function we serve in our legal process. It is largely for that reason that I occasionally write for Slate and other non-legal publications.

Turning to the news, I have some further thoughts on the story that has dominated the entire week, namely the fallout from the Starr report and the airing of the president's grand jury testimony. I am coming around to the view that we have entered an era of direct democracy where some of our most significant and divisive issues are decided not by our elected representatives but by direct vote of the people. It's happened twice before. The first was at the time of the Bork confirmation hearings. As I recall, there were a number of senators on the fence, until the congressional phone-lines started to buzz and the poll returns started to weigh in heavily against confirmation. It happened even more dramatically at the time of the Thomas confirmation. Going into the weekend before the vote, several senators were undecided--or at least unwilling to declare themselves. Then the weekend polls came out and showed that the majority of the people believed Thomas and not Hill. Soon afterwards enough senators declared for confirmation to put Thomas safely over the top. My intuition is that the current crisis will be decided by the polls as well. In that regard, this morning's news is favorable to the president: the New York Times/ABC poll shows that the president's approval rating has risen since release of the tapes, and that there may be a backlash against Republicans who voted to release the tape. USA Today carries a different poll showing similar trends.

While I agree that elected officials ought to be guided by the wishes of their constituents, I am nevertheless a bit uneasy about this transition to direct democracy. As polling gets more sophisticated, as it becomes easier to track and analyze an elected representative's voting record, the temptation will become ever greater for elected officials to hold a finger in the wind rather than exercise independent judgment. As we know from history, public passions ebb and flow quickly, and sometimes destructively. In the long run it may be healthier for us as a nation if our government officials were more willing to exercise the leadership for which we elected them.

Any thoughts on this?

Ciao. AK

Nadine Strossen is president of the American Civil Liberties Union and author of Defending Pornography. Alex Kozinski is a federal judge in California. He sits on the 9th U.S. Circuit Court of Appeals.