COVER ARTICLE

Shock waves
Will court’s new rules help Tennessee judicial candidates deal with aftershocks of ‘White’ decision?
By Brian S. Faughnan and Lucian T. Pera

On June 27, 1977, and June 27, 2002 —exactly 25 years apart —two First Amendment earthquakes rocked the legal world.

It was on that date in 1977 that the United States Supreme Court issued its decision in Bates v. State Bar of Arizona,[1] announcing for the first time that lawyers (of all people) had a First Amendment right to advertise their services. Today, more than a generation and many court decisions and rule changes later, the shockwaves continue to reverberate, and few can doubt that they have changed the legal profession forever.

Twenty-five years to the day after the Bates decision was issued, the U.S. Supreme Court issued another ground-shaker, Republican Party of Minnesota v. White,[2] and the epicenter this time was located in the arcane world of judicial ethics. In White, the court struck down, on First Amendment grounds, a not-uncommon judicial ethics restriction on what judges and judicial candidates were permitted to say when running for judicial office, recognizing clearly for the first time the First Amendment rights of judicial candidates.

Today, almost three years after the White decision, in the midst of Tennessee’s massive, once-every-eight-year judicial election cycle, the aftershocks have reached the Volunteer State. Years from now, few will doubt that this decision and its progeny will have changed forever what it means to be a judge.

But what does White mean in the here-and-now for Tennessee lawyers and judges?

Retrofitting the rules
Your authors practice just a few miles from the New Madrid fault zone, the source of that 1812 earthquake that legend says created Reelfoot Lake and rang church bells in Philadelphia. The U.S. Geological Survey posts “seismic hazard maps” that include our neighborhoods. And regular talk of “The Big One” around here makes us notice — and appreciate — the retrofitting of bridges and buildings intended to protect us when a quake does hit again.

Last fall, on Oct. 11, 2005, with no advance warning or comment period, the Tennessee Supreme Court issued an order amending the commentary to the central ethics rule governing speech by judicial candidates, Canon 5(A)(3)(d) of Tennessee’s Code of Judicial Conduct. (For the language of the new comment, and the rule it comments on, see the sidebar, "A revised judicial ethics standard.")

The new commentary definitely has its merits, especially in educating candidates for judicial office as to their obligations and rights, but some of the new language appears to conflict significantly with the black-letter language of the rule to which it relates. So, why, just a few months before the earliest campaign filing deadlines for elected judicial positions in Tennessee, would the Tennessee Supreme Court do this?

Your authors have no inside line to the Tennessee Supreme Court on its reasons, but close observers of the court quickly deduced what must be the court’s thinking: With hundreds of candidates set to begin dozens of judicial campaigns from Memphis to Mountain City, and with at least one turbulent electoral campaign in the Tennessee Supreme Court’s own recent history, the court must have felt that prompt, direct action — even if the action was imperfect — was essential to guide judicial candidates about what they ethically could and could not say when campaigning. Moreover, informed observers also concluded that the commentary amendment was an attempt to head off, or at least reduce the likelihood of success of, any First Amendment attack on Tennessee’s restrictions on judicial campaign activity based on the U.S. Supreme Court’s 5-4 White decision.

Whether the Tennessee Supreme Court’s retrofitting will succeed remains an open question, but judicial campaigns are now in full swing and the new commentary is providing some guidance to candidates and others. Let’s review how we got here.

The foreshocks
What happened in the White decision to set off this judicial speech earthquake?

In White, the U.S. Supreme Court struck down, as violative of the First Amendment to the United States Constitution, a provision in Minnesota’s judicial ethics code that had prohibited both incumbent judges and judicial candidates seeking election from, during their campaign, “announc[ing] his or her views on disputed legal or political issues.”[3] Prohibitions of this sort, based upon Canon 7(B) of the 1972 version of the ABA Model Code of Judicial Conduct, are often referred to as the “announce clause” and, prior to White, could be found in the judicial ethics codes of eight other states.[4]

The question of the constitutionality of Minnesota’s announce clause ended up before the U.S. Supreme Court in a federal lawsuit filed by Gregory Wersal, a Minnesota lawyer who was a candidate for a seat as an associate justice on the Minnesota Supreme Court. Wersal had previously campaigned in 1996 for the same position when, after distributing campaign materials that were critical of Minnesota Supreme Court decisions on hot-button issues including crime, welfare and abortion, he had a complaint filed against him with Minnesota’s lawyer disciplinary body that alleged that those campaign materials were in violation of Minnesota’s “announce clause.”[5] That complaint against Wersal was dismissed when Minnesota’s lawyer disciplinary body opined that it was uncertain that the “announce clause” could be constitutionally enforced. Wersal ultimately withdrew from his 1996 campaign effort for fear of other complaints against his law license.[6]

In 1998, Wersal decided to run again for a spot on the Minnesota Supreme Court and sought an advisory opinion from the lawyer disciplinary board concerning whether it would enforce the “announce clause.” The answer he got was equivocal. In response, Wersal filed a federal lawsuit, alleging that the existence of the “announce clause” and his fear of being disciplined for violating it prevented him from being able to announce his views and prevented him from answering certain questions asked of him during his campaign.[7] Wersal’s suit sought both a declaratory judgment that the “announce clause” was unconstitutional and an injunction against its enforcement.

Wersal’s lawsuit, which was joined by other plaintiffs including the Republican Party of Minnesota, was initially unsuccessful both at the district court level and before the U.S. Court of Appeals for the Eighth Circuit. But on June 27, 2002, Wersal got the relief he sought from the U.S. Supreme Court, mightily upsetting the world of judicial ethics.

The ‘big one’ shakes judicial speech
Justice Scalia, writing for the majority, briefly explained that the appropriate test in such a challenge involved application of “strict scrutiny” because Minnesota’s announce clause is a content-based restriction on speech that lies “‘at the core of our First Amendment freedoms’ — speech about the qualifications of candidates for public office.”[8] Under well-established precedent, this meant that, in order to pass constitutional muster, Minnesota would have to convince the court that the announce clause was both narrowly tailored[9] and served a compelling state interest.

The Eighth Circuit had concluded that there were two state interests advanced by Minnesota sufficiently compelling to justify the announce clause: (1) preserving the impartiality of its state judiciary; and (2) preserving the appearance of the impartiality of its state judiciary.[10] The initial problem, as explained by Justice Scalia, was that there was simply not sufficient clarity on what the crucial term “impartiality” actually meant.[11]

Cracks appear in the foundations of impartiality
Justice Scalia identified three potential meanings for the term “impartiality.”

The first would be the traditional definition of impartiality as to a judge — “the lack of bias against either party to a proceeding.”[12] The court explained that such a meaning is the meaning of the word as it is used in prior U.S. Supreme Court cases that stand for the proposition that an “impartial” judge is essential to due process. Although it would appear clear that “impartiality” in this sense would constitute a compelling state interest, the court never directly said as much, instead concluding that “the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense,”[13] because the announce clause does not seek to restrict speech for or against particular parties, but rather speech for or against particular issues. Thus, the existence of Minnesota’s announce clause could not be justified as fostering impartiality, or the appearance of impartiality, if impartiality means “the lack of bias against either party to a proceeding.”

The second conceivable meaning of impartiality set forth by the court, although characterized as not being a common usage, would be “a lack of preconception in favor of or against a particular legal view.”[14] Justice Scalia brushed aside this meaning of impartiality as a justification for the announce clause because such an interest clearly would not be a compelling state interest. The court explained that it would be impossible to achieve the level of legal education necessary to be qualified to be a judge, yet have no preconceived view about what the law is on an issue.[15] Thus, if this type of impartiality were what Minnesota sought to preserve, the state would be in the awkward position of seeking to make sure that judicial candidates were unqualified to be judges.[16] Having determined that impartiality in this sense was not a compelling state interest, it obviously followed that trying to preserve the appearance of such impartiality would not be a compelling state interest.

Justice Scalia then turned to a third potential meaning of impartiality — again one described as not common — openmindedness on the part of judges, or the notion that, despite having preconceptions on legal issues, a judge is “willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case.”[17] This type of impartiality would not guarantee that every litigant has an equal chance to win — a concept that Justice Scalia appeared to foreclose as impossible given that judges must be learned in the law — but that every litigant has “at least some chance” to win on the legal issues in a case.[18] The court decided it need not determine whether such impartiality would be desirable for the judiciary because it was clear to the court that Minnesota’s announce clause was not adopted to preserve impartiality or the appearance of impartiality in this sense.[19]

Justice Scalia explained that the restriction does not sufficiently foster the interest in open-mindedness, or in preserving the appearance that judges are open-minded, because the prohibition only prevents the announcement of positions on disputed issues during the campaign, while not prohibiting those same persons from making such public announcements either before they officially announce their candidacy or after they are elected to the bench.[20] “[S]tatements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible.”[21] Or, stated more strongly, “As a means of pursuing the objective of open-mindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous.”[22] This problem identified by the court is commonly referred to as “underbreadth.”

Sleeping outside until the aftershocks pass
The majority opinion takes pains to avoid deciding two important questions: (1) whether the First Amendment requires no greater regulation of speech in judicial campaigns than is permitted in legislative campaigns;[23] and (2) whether Minnesota’s separate “pledges and promises clause” (about which more later) is constitutional.[24] Nevertheless, there are some hints on how some members of the court view these unanswered questions.

On the first question, Justice Scalia wrote for the court, “What we do assert … is that even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fails strict scrutiny”[25] The implication is clear: There is a real possibility that the First Amendment simply does not allow greater regulation of judicial election campaigns. Moreover, Justice Scalia derided Justice Ginsburg’s dissenting opinion as “greatly exaggerat[ing] the difference between judicial and legislative elections,” stating that a description of the judiciary as completely separate from the enterprise of representative government “is not a true picture of the American system.”[26]

As to the second question, the separate concurring opinions filed by two members of the five-justice majority, Justice Kennedy and Justice O’Connor, are instructive. Justice Kennedy’s concurrence clearly reveals his opinion that a restriction on promises or pledges by judicial candidates would violate the First Amendment.[27] While Justice Kennedy’s concurring opinion casts a shadow over all content-based restrictions on the speech of judicial candidates, Justice O’Connor’s concurring opinion casts an even broader shadow over the very practice of electing judges. Her concurrence begins: “I join the opinion of the court but write separately to express my concerns about judicial elections generally … I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest [in an actual and perceived … impartial judiciary].”[28]

Having begun with an expression of concern, Justice O’Connor ended her concurrence with what can only be read as a warning:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so, the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.[29]

The views of the four dissenting justices are set forth in two separate dissenting opinions, one authored by Justice Stevens[30] and one by Justice Ginsburg.[31]

Ringing church bells in Tennessee
Although the October 2005 action of the Tennessee Supreme Court was expressly taken in response to the U.S. Supreme Court’s ruling in White, Tennessee’s judicial ethics rules, contained in its Code of Judicial Conduct contains no “announce clause,” as it was patterned after a different and later (1990) version of the ABA Model Code of Judicial Conduct than Minnesota’s.[32]

Tennessee’s judicial ethics rules do contain what is commonly known as a “commit clause,” which prohibits candidates for judicial office, including incumbent judges, from making “statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court.”[33] Although these types of “commit clauses” restrict less speech than do the “announce clauses” at issue in White, given the rationale used by the majority in White to strike down Minnesota’s “announce clause,” Tennessee’s “commit clause” clearly appears to suffer from the same constitutional failings found in Minnesota’s announce clause and thus to be clearly subject to constitutional attack under White. Or at least it appeared so before the October 2005 commentary amendment.[34]

The approach taken by the Tennessee Supreme Court to address this issue, however, was somewhat less than direct. Instead of deleting Canon 5(A)(3)(d)(ii) from the black letter of the Code or amending it somehow to bring it into compliance with constitutional standards (if that were possible), the court made no changes to the black-letter language of the rule, but instead deleted the existing commentary to that rule and replaced it with entirely new commentary.[35] The new Tennessee commentary consists of three parts: (1) an apparent disavowal of Canon 5(A)(3)(d)(ii); (2) a reaffirmance of the propriety of Tennessee’s ban on certain pledges and promises (albeit in a manner that actually appears to change the scope of Canon 5(A)(3)(d)(i); and (3) a reminder of the continued importance of recusal and disqualification requirements imposed upon judges under Tennessee law.[36]

The new commentary begins in its first paragraph as follows:

A judge’s obligation to avoid prejudgment is well established. Under the First Amendment and in light of the voters’ right to have information about an elective candidate’s views, judicial ethics rules may not prohibit judicial candidates from announcing their views on disputed legal and political issues. Canon 5(A)(3)(d) does not proscribe a candidate’s public expression of personal views on disputed issues. To ensure that voters understand a judge’s duty to uphold the Constitution and laws of Tennessee where the law differs from the candidate’s personal beliefs, however, candidates are encouraged to emphasize their duty to uphold the law regardless of personal views.[37]

This portion of the commentary clearly appears to have supplanted the black letter of the rule with respect to Canon 5(A)(3)(d)(ii), which bans “mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court.” It seems clear that a judicial candidate could, by making a public announcement of a personal view on a disputed issue make a statement that “appear[s] to commit” one “with respect to cases, controversies, or issues that are likely to come before the court.” Thus, the new commentary, apparently attempting to preserve the constitutionality of Canon 5(A)(3)(d) as a whole, seems to effectively eviscerate subsection (2).

Retrofitting pledges and promises
The second issue addressed in the new commentary is the continued viability of a restriction against pledges or promises by judicial candidates.

Tennessee’s Code of Judicial Conduct, like Minnesota’s and those of many other jurisdictions, also contains a “pledges or promises” clause. Tennessee’s Canon 5(A)(3)(d)(i) provides that a candidate may not “make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”[38] The Tennessee Supreme Court clearly has taken the position, as did Justice Ginsburg in her White dissent,[39] that a restriction on pledges and promises by judicial candidates continues to be Constitutional post-White, as the new commentary provides: “Some speech restrictions are indispensable to maintaining the integrity, impartiality, and independence of the judiciary. The state has a compelling interest in enforcing these restrictions.”[40]

Still, the new commentary language does appear to have significantly narrowed the range of prohibited pledges and promises so as to attempt to avoid running afoul of the First Amendment. The new commentary declares:

Thus, under Canon 5(A)(3)(d) it remains improper for a judicial candidate to make pledges, promises or commitments regarding pending or impending cases, specific classes of cases, specific litigants or classes of litigants, or specific positions of law, that would reasonably lead to the conclusion that the candidate has prejudged a decision or ruling in cases that would fall within the scope of the pledge, promise or commitment. To fall within the proscription of this rule the statement by the candidate must pertain to matters likely to come before the court on which the candidate would serve, if elected.[41]

This new description of prohibited promises or pledges is undoubtedly narrower than the black-letter prohibition in Canon 5(A)(3)(d)(i), which sweepingly prohibits a judicial candidate from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”[42] The black letter logically reads as permitting a judicial candidate to make one and only one promise or pledge during a campaign — a pledge or promise to faithfully and impartially perform the duties of the office.

To the extent that the new commentary can and does limit the reach of this rule, the only promises or pledges now prohibited by Canon 5(A)(3)(d)(i) are those pledges or promises that (1) are inconsistent with faithfully and impartially performing the duties of the office and (2) concern a matter likely to come before the court for which the candidate is running.

One area in which this prohibition has repeatedly come up in other states and in litigation spawned by White (about which more later) is the increasingly thorny problem of interest-group or media questionnaires sent to judicial candidates. First, consistent with the effective repeal of Canon 5(A)(3)(d)(ii) — Tennessee’s “commit clause” — the Tennessee Supreme Court explicitly states that Canon 5(A)(3)(d) “does not generally prohibit candidates from responding to” “questionnaires or requests for interviews from the media and from issue advocacy or other community organizations seeking to learn their views on disputed or controversial legal or political issues.”[43] The commentary nonetheless offers both a cautionary warning and some needed advice to candidates:

Depending on the wording of the questions and the format provided for answering, a candidate’s responses might constitute pledges, promises or commitments to perform the adjudicative duties of office other than in an impartial way … In order to avoid violating Canon 5(A)(3)(d), therefore, candidates who choose to respond should make clear their commitment to keeping an open mind while on the bench, regardless of their own personal views.[44]

Be prepared: remember recusal
The third important aspect of the new commentary is an explicit reminder that a judicial candidate can, by exercising her First Amendment rights during a judicial campaign, mandate her own later recusal from certain cases:

Additionally, judicial candidates must keep in mind that, in stating their position as to an issue, they may later be required to disqualify themselves pursuant to Canon 3(E)(1) should that issue subsequently arise in a proceeding before them and, because of the position taken by the judge while a candidate, the judge’s impartiality might reasonably be questioned.[45]

Be more prepared
In December 2005, the Judicial Ethics Committee of the Tennessee Judicial Conference issued Judicial Ethics Opinion 05-03 (Dec. 8, 2005), addressing White and the impact of the new commentary enacted by the Tennessee Supreme Court.[46] That opinion appears to confirm that the commentary has effectively supplanted the black-letter rule with respect to Canon 5(A)(3)(d)(i) and (ii). Importantly, the opinion addresses an issue not discussed by the Tennessee Supreme Court in the new commentary — the specific interest that Tennessee seeks to protect by its regulations on judicial campaign speech. The opinion explains that the ban on certain pledges or promises is believed to be needed to preserve the impartiality, and the appearance of impartiality, of Tennessee judges and explains that what is meant by impartiality is both the first and third meanings explained by Justice Scalia in White, i.e., lack of bias for or against either party to a proceeding and judicial openmindedness.[47] Does the new Judicial Ethics Opinion provide another support, or a sort of post hoc “legislative history,” buttressing the constitutionality of the Tennessee judicial speech restrictions? Not sure.

Known and unknown unknowns
If you’ve made it this far, you certainly deserve some clarity, and your authors wish they could give you some. This is, however, quite hard to do. What we can do is identify at least the “known unknowns” — the questions that we know are out there but to which we do not currently know the answers.[48]

First, like most conscientious participants in the Tennessee judicial system, we believe and hope that the educational effect of the new commentary language adopted by the Tennessee Supreme Court will be very positive, helping candidates (and, indirectly, voters) in what may be a difficult first full post-White election cycle. But the legal effect of the language is simply unknown.

Although we presume that the Tennessee Supreme Court currently believes that it is constitutional as written (or they certainly would not have adopted it), no one has challenged it, on a proper record and with briefing, whether on a facial or as-applied basis. It would not be hard to dream up factual circumstances in which the application of the rule and commentary as written might stray over First Amendment boundaries. Moreover, to the Tennessee Supreme Court’s very great credit, it has in its very recent history at least one example of a demonstrated willingness, upon a proper record and full briefing and argument, to strike down as unconstitutional under the First Amendment one of its own Supreme Court rules.[49] (Your authors think that even Justice Scalia would call that “impartial.”)

So, is all or part of the new Tennessee rule and its new commentary unconstitutional? We just don’t know.

Second, courts all over the country have been struggling with judicial speech issues under White. A few highlights:

• One federal appeals court has held unconstitutional state prohibitions on partisan activities and personal solicitation of financial donations by judicial candidates. In the White case itself, upon remand from the U.S. Supreme Court, the Eighth Circuit, sitting en banc, applied the White rationale and determined that two other portions of Minnesota’s code of judicial ethics must also be struck down as unconstitutional — Minnesota’s ban on certain partisan political activities, which prohibited judicial candidates from, for example, attending or speaking before gatherings of political organizations, and Minnesota’s ban on in-person solicitation of financial donations by judicial candidates.[50]
• One federal appeals court has held unconstitutional a state’s prohibition on the making of false and misleading statements by judicial candidates.[51]
• Three federal district courts have clearly indicated that state ethical restrictions on what judicial candidates can say will not survive a First Amendment challenge where those restrictions prevent judicial candidates from, for example, answering questions about controversial legal issues posed in questionnaires distributed by special-interest groups.[52] For a look at the questions contained in the candidate questionnaire that had been distributed by the plaintiff in one of those cases, see the sidebar, Many judges signing on to campaign code.
• At least two state supreme courts, however, have applied White in a manner that preserved their states’ “pledges or promises” clauses.[53]

The next ‘big one’
The earthquake that was White has probably not finished its reverberations across the landscape of judicial ethics, whether nationally or in Tennessee. And the changes it has wrought, and will in the days to come bring, to the landscape of judicial and judicial campaign speech are not yet fully visible.

Doubtless, many Tennessee judges and judicial candidates, conservative and risk-averse by temperament, will face this uncertain situation and simply be wary of talking about specific issues of any kind. For now, this appears to many judges and judicial candidates to be the safest course; nevertheless, it is quite clear that White, the new Tennessee commentary language, and perhaps even decisions decided since White, all permit judges and judicial candidates to speak much more freely about matters previously off-limits.

Will some judicial candidates — especially challengers to incumbents — make statements offering definitive positions on controversial issues? Will some interest groups intent on electing like-minded judicial candidates or defeating others take “No comment” for an answer to their questions? Or will they wave White in front of the public and the media to denounce reticent candidates, saying that the highest court in the land and the highest court in Tennessee have each said that they can ethically answer, and condemning them for their silence?

With greater First Amendment freedom comes greater judicial responsibility. Will judicial candidates who choose to speak more freely remember this when parties who later appear before them after they are elected ask them to recuse themselves based on positions taken in campaigns?

What will the public think of this new judicial speech regime? Will they understand the judicial system better if judges and judicial candidates explain themselves more freely? Or will the public see judges more as mere political figures, prone to, or maybe even intent upon, enacting their campaign positions as judgments?

And, finally, what will all this mean for judicial selection? Assuming that our courts do not throw out the baby with the bathwater and hold the very concept of judicial elections unconstitutional, will free-wheeling judicial campaigns — already the norm in many states — lead the citizens of Tennessee further toward appointment of judges?

TBA retrofit
Recently, the Board of Governors of the Tennessee Bar Association appointed a committee to study the issue of what the bar could do, in a post-White world, to help judicial candidates negotiate these dangerous waters and insure that Tennessee’s courts are filled with fair, independent, impartial judges. The conclusion of that committee was that the bar should develop, and make available for distribution to judicial candidates in Tennessee, a voluntary code of campaign conduct. A copy of the Tennessee Fair Judicial Campaign Code of Conduct can be found in the sidebar, A sample judicial candidate questionnaire.

Still waiting for the big one
Almost 30 years ago, the U.S. Supreme Court shook the legal profession to its foundations by opening the floodgates of lawyer advertising in Bates v. State Bar of Arizona.[54] Many lawyers, including our beloved late law partner, Walter P. Armstrong Jr., essentially believed that this decision did more than anything else to harm lawyer professionalism in our time. The point can certainly be argued; what cannot be argued is that, in one way or another, the effects of Bates have reached virtually all corners of the profession.

While the final aftershocks of White will not be felt for years, it is likewise clear that they will change not only the way that judges become judges, but that they may well change what it means to be a judge in Tennessee and this country for decades to come.

• • •

Notes

1. 433 U.S. 350 (1977).
2. 536 U.S. 765 (2002).
3. Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i).
4. 536 U.S. at 769. Those eight other states are: Arizona, Colorado, Iowa, Maryland, Mississippi, Missouri, New Mexico and Pennsylvania.
5. The Minnesota lawyer disciplinary authority was an appropriate place for such a complaint to be filed because Minnesota, as has Tennessee, adopted a lawyer ethics rule patterned after ABA Model Rule 8.2 that requires a lawyer who is a candidate for judicial office to comply with the judicial ethics code. See Minn. R. Prof. Cond. 8.2; Tenn. Sup. Ct. R. 8, RPC 8.2.
6. White, 536 U.S. at 769.
7. Id. at 769-70.
8. Id. at 774.
9. The court explained that to be “narrowly tailored,” the announce clause must be demonstrated not to “unnecessarily circumscribe[e] protected expression.” Id. at 775.
10. Id. (citing Republican Party of Minn. v. Kelley, 247 F.3d 854, 867 (8th Cir. 2001)).
11. The court noted that the term “impartiality” had not been defined anywhere in the Eighth Circuit’s opinion, the parties’ briefs, the Minnesota Code of Judicial Conduct, or the ABA Code of Judicial Conduct. Id.
12. Id. at 775-76.
13. Id. at 776.
14. Id. at 777 (emphasis in original).
15. Id. at 777-78.
16. The court noted that the Minnesota Constitution “positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law.” Id. at 778 (citing to Minn. Const. Art. VI, § 5).
17. Id.
18. Id.
19. Id.
20. Id. at 779-80.
21. Id. at 779.
22. Id. at 780.
23. “[W]e neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.” Id. at 783.
24. “[T]he Minnesota Code contains a so-called “pledges or promises” clause … a prohibition that is not challenged here and on which we express no view.” Id. at 770.
25. Id. at 783.
26. Id. at 784.
27. Id. at 793 (Kennedy, J., concurring) (“The political speech of candidates is at the heart of the First Amendment and direct restrictions on the content of candidate speech are simply beyond the power of government to impose.”); Id. at 795 (Kennedy, J., concurring) (“The State cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgment of speech.”).
28. Id. at 788 (O’Connor, J., concurring).
29. Id. at 792 (O’Connor, J., concurring).
30. Justice Stevens’ dissent was joined by Justices Breyer, Ginsburg and Souter.
31. Justice Ginsburg’s dissent was joined by Justices Breyer, Souter and Stevens.
32. “In 1990, in response to concerns that its 1972 Model Canon … violated the First Amendment … the ABA replaced that canon with a provision that prohibits a judicial candidate from making ‘statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.’” Id. at 773 n.5 (quoting ABA Model Code of Judicial Conduct, Canon 5(A)(3)(d)(ii) (2000)).
33. Tenn. Sup. Ct. R. 10, Canon 5(A)(3)(d)(ii).
34. In a footnote, the White majority brushed aside arguments that, as a result of certain actions taken by the Minnesota Supreme Court, Minnesota’s announce clause was no broader than the language in the 1990 version of the ABA Model Code of Judicial Conduct. In so doing, the White majority appeared to signal that such “commit” clauses are also unconstitutional: “We do not know whether the announce clause (as interpreted by state authorities) and the 1990 ABA canon are one and the same. No aspect of our constitutional analysis turns on this question.” White, 536 U.S. at 773 n.5.
35. Order, In re: Amendment to Rule 10, Rules of the Tennessee Supreme Court (Tenn. Oct. 11, 2005).
36. The first, second, third and fifth paragraphs of the new Tennessee commentary language are substantively identical to the June 2005 interim draft of revised Canon 5 of the ABA Model Code of Judicial Conduct, published for comment by the ABA committee working on redrafting the model code on which Tennessee’s and all the other states’ judicial ethics rules are based. The fourth paragraph of the new Tennessee commentary language is different and apparently unique to Tennessee. See Preliminary Report of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct, Canon 5, Rule 5.01, Commentary [14] - [17] (June 30, 2005), available at http://www.abanet.org/judicialethics/home.html.

    The ABA draft commentary was based on black-letter rule language different from Tennessee’s Rule. Interestingly, the ABA committee that published this language, from which the Tennessee language was apparently taken, has substantially backtracked on judicial speech issues and, in its latest draft, abandoned this language.

37. Tenn. Sup. Ct. R. 10, Canon 5(A)(3)(d), Commentary.
38. Tenn. Sup. Ct. R. 10, Canon 5(A)(3)(d)(i).
39. White, 536 U.S. at 818 (Ginsburg, J., dissenting) (“Prohibiting a judicial candidate from pledging or promising certain results if elected directly promotes the State’s interest in preserving public faith in the bench.”).
40. Tenn. Sup. Ct. R. 10, Canon 5(A)(3)(d), Commentary.
41. Id.
42. Tenn. Sup. Ct. R. 10, Canon 5(A)(3)(d)(i).
43. Tenn. Sup. Ct. R. 10, Canon 5(A)(3)(d), Commentary.
44. Id.
45. Id.
46. Tenn. Jud. Eth. Cmte., Adv. Op. 05-03 (Dec. 8, 2005).
47. Id.
48. The reference is to the performance poetry of the current U.S. Secretary of Defense, offered in a news briefing on the highly serious subject of American policy in Iraq:

    Q: Could I follow up, Mr. Secretary, on what you just said, please? In regard to Iraq weapons of mass destruction and terrorists, is there any evidence to indicate that Iraq has attempted to or is willing to supply terrorists with weapons of mass destruction? Because there are reports that there is no evidence of a direct link between Baghdad and some of these terrorist organizations.

    Rumsfeld: Reports that say that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.

    Transcript, News Briefing by U.S. Secretary of Defense Donald H. Rumsfeld and Gen. Richard Myers, Feb. 12, 2002 (emphasis added), available at http://www.defenselink.mil/transcripts/2002/t02122002_t212sdv2.html.

49. See Doe v. Doe, 127 S.W.3d 728 (Tenn. 2004).
50. Republican Party v. White (“White II”), 416 F.3d 878 (8th Cir. 2005), cert. denied sub nom. Dimick v. Republican Party, 126 S. Ct. 1165 (2006). The Tennessee Code of Judicial Conduct contains both a prohibition on personal solicitation of judicial campaign contributions by judicial candidates, Tenn. Sup. Ct. R. 10, Canon 5(C)(2)(a), and a restriction on certain partisan political activities, including leading or holding an office in a political organization or making speeches on behalf of a political organization, Id., Canon 5(A)(1)(a) and (c).
51. See Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002). In Weaver, the Eleventh Circuit also struck down Georgia’s ban on personal solicitation of campaign contributions by judicial candidates as unconstitutional.
52. See Alaska Right to Life Political Action Cmte. v. Feldman, 380 F. Supp. 2d 1080 (D. Ak. 2005); North Dakota Family Alliance Inc. v. Bader, 361 F. Supp. 2d 1021 (D.N.D. 2005); Family Trust Foundation v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004).
53. See In re Kinsey, 842 So. 2d 77 (Fla. 2003); In re Watson, 794 N.E.2d 1 (N.Y. 2003).
54. 433 U.S. 350 (1977).

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Brian S. Faughnan and Lucian T. Pera have recently joined Adams and Reese LLP to open its Memphis office, after having practiced for almost seven and 20 years, respectively, with the Memphis office of Armstrong Allen PLLC. Pera is a graduate of the Vanderbilt University School of Law and chair of the Tennessee Bar Association Standing Committee on Ethics and Professional Responsibility. Faughnan is a graduate of the University of Memphis Law School and is a member and reporter for the committee’s rules revision project. In addition to their civil trial and appellate practices, both practice in the area of ethics and professional responsibility, and media and First Amendment law. Neither of them is prepared for the day when The Big One hits the Bluff City.

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