Judicial Candidates' Right to Lie

45 Pages Posted: 23 Mar 2017

See all articles by Nat Stern

Nat Stern

Florida State University - College of Law

Date Written: March 23, 2017

Abstract

A large majority of state judges are chosen through some form of popular election. In Republican Party of Minnesota v. White, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together these two holdings, along with the Court’s wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states’ ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges’ responsibilities and still exists in many states. Given the provision’s vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source — judicial elections themselves

If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.

[A] State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.

Suggested Citation

Stern, Nat S., Judicial Candidates' Right to Lie (March 23, 2017). 77 Maryland Law Review (2018 Forthcoming); FSU College of Law, Public Law Research Paper No. 829. Available at SSRN: https://ssrn.com/abstract=2939829 or http://dx.doi.org/10.2139/ssrn.2939829

Nat S. Stern (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-1801 (Phone)

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