Mississippi Supreme Court Dismisses Attempt to Discipline Judge over Protected Speech

CCP amicus brief: voters, not government, evaluate appropriateness of candidate expression

Alexandria, VA – The Mississippi Supreme Court last week dismissed with prejudice an attempt to discipline a judge over constitutionally protected speech. The Center for Competitive Politics (CCP), represented by the UCLA Scott & Cyan Banister First Amendment Clinic, filed a brief in the case supporting robust First Amendment rights for judicial candidates.

“Elected judges have to have broad rights to speak to their constituents in their own voice, whether on Twitter, in a book, or otherwise. I was delighted to see that the Mississippi Supreme Court agreed that Judge Polk-Payton’s speech did not violate any rules,” said UCLA Law Professor Eugene Volokh, author of the brief and supervisor of the Clinic.

“If judges are to be elected, voters have a right to understand judicial candidates’ views and personalities. The Mississippi Supreme Court correctly chose not to allow a subjective view of ‘appropriateness’ to override that principle,” said CCP Legal Director Allen Dickerson.

The Mississippi Commission on Judicial Performance had argued that Forrest County Justice Court Judge Gay Polk-Payton had engaged in expression “undignified and demeaning” to the judicial office. Specifically, the Commission pointed to Judge Polk-Payton’s use of the Twitter handle “@JudgeCutie” and the cover photo on a book she authored, which features a photo of her in ordinary clothes with her judge’s robe partially on.

CCP’s brief noted that the Commission’s “undignified and demeaning” standard was “too subjective to justify content-based speech restrictions. The United States Supreme Court has recognized that subjective matters of ‘taste and style’ are not for the government to determine.”

The brief goes on to explain that Judge Polk-Payton is an elected official accountable to voters. “To be sure, there is an important constraint on undignified behavior by elected judges: the reaction of the judges’ constituents. They, not the Commission, are in the best position to determine whether a judge’s speech is “demeaning” under their community’s standards.”

The Mississippi Supreme Court summarily dismissed the case on June 15: “[N]o violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton, has been proven by clear and convincing evidence… these proceedings therefore should be, and they hereby are, dismissed with prejudice.”

The Center for Competitive Politics (CCP) is America’s largest nonprofit working solely to promote and defend First Amendment rights to free political speech, press, assembly, and petition. The Scott & Cyan Banister First Amendment Clinic is a UCLA School of Law course taught and supervised by Professor Eugene Volokh, which files amicus briefs in First Amendment cases.

The amicus brief can be read here.

The Center for Competitive Politics is now the Institute for Free Speech.