What may a judge say during an election campaign? Republican Party v White, 122 S.Ct. 2528 (2002), makes clear that judges in states where there are elections (or recalls) retain some degree of First Amendment Rights. Yet many judges are unclear about what they may say or retreat into a cocoon of claiming “the Rules prevent me from saying anything.” As an electoral strategy that approach may lead to the judges defeat and return to private practice.

The California Supreme Court announced that it will be seeking public comment on a proposed exception to the judicial ethics rules that would allow a judge to “comment publicly about a pending case that formed the basis of criticism of a judge during an election or recall campaign, provided the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding.” Currently, judges are not permitted to speak openly about pending cases under the California Judicial Code of Ethics. The proposed exception is “in response to increasing attacks on judicial independence in an age of widespread social media vitriol,” Courthouse News Service reports.