Today the Great Falls Tribune reported that the Chief Federal Judge, Richard Cebull, forwarded a racist email to six of “his ‘old buddies’ and acquaintances”. The email contained a racist joke aimed at President Obama. The email was sent to and from his work account. Judge Cebull officially apologized and noted that while the email was racist, he is not a racist and treats everyone fairly in his courtroom. He also stated that, “It was not intended by me in any way to become public…The only reason I can explain to you is I am not a fan of our president, but this goes beyond not being a fan. I didn’t send it as racist, although that’s what it is. I sent it out because it’s anti-Obama.” Is this speech appropriate for a federal judge? Is this speech actionable?
The Supreme Court has already weighed in on the ability of judicial candidates to speak to issues (see Republican Party of MN v. White 563 US 765 (2002)). Based on this case judges and judicial candidates receive First Amendment protections. In order to prevent or sanction a judicial candidate or judge there must be a compelling interest and the law must be narrowly tailored.
The announce clause at issue in this case was deemed unconstitutional because the law preventing judicial candidates from speaking to the issues was not narrowly tailored to serve Minnesota’s interests: i.e., judicial impartiality and the appearance of impartiality. Justice Scalia, writing for the Court, discussed several meanings of the term “impartiality” and noted that the Minnesota law failed because “it does not restrict speech for or against particular parties, but rather speech for or against particular issues.” This part of the opinion suggests that a lack of impartiality toward parties is a compelling issue that would allow the state to regulate speech. It also implies that this type of partiality is not appropriate in the judicial context.
The federal judicial code of conduct does not prohibit speech on issues openly. It does require judges to “avoid impropriety and the appearance of impropriety in all activities and specifies that judges should not hold memberships in any club or organization that discriminates,” in Canon 2. Canon 3 of the Code requires impartiality for all litigants and parties. While Judge Cebull may openly aver racism and point to his judicial record as evidence of his impartiality to legal parties, what about the second concern in White: the appearance of impartiality? Does this email compromise the impartiality of Cebull’s federal courtroom? Will minority litigants and counselors feel as welcome after this public admission and apology? Does this ‘outed’ email mean that Cebull has violated the federal Judicial Code of Conduct? If one consequence of this email’s public release was an impeachment trial, could the federal government claim a compelling interest and a narrowly tailored code exists for restricting the speech of federal judges?