Ethics Lesson: Judges Can’t Campaign Like Other Candidates

false-campaign-ad

The Supreme Court of Appeals of West Virginia suspended Judge Stephen Callaghan for two years and fined him $15,000 for a campaign flyer that it deemed dishonest. The court said that the flier  depicted the incumbent judge, Gary Johnson, as “partying” with President Obama. Johnson had visited the White House for a federally required conference on fighting child trafficking, but  he didn’t see Obama there, there was no party, and no function involving alcohol. The flier was mailed out five days before the May 2016 election, which Callaghan won.  Callaghan won the election by 220 votes.

The flier was “in every sense, materially false” according to the decision. You can see it above. Photos of Obama and Johnson are shown next to each other. Obama is shown holding a beer and streamers are in the background. The caption reads, “Barack Obama & Gary Johnson Party at the White House.” The opposite side of the flier read,

“While Nicholas County lost hundreds of jobs to Barack Obama’s coal policies, Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama’s legislative agenda. That same month, news outlets reported a 76% drop in coal mining employment. Can we trust Judge Gary Johnson to defend Nicholas County against job-killer Barack Obama?”

After Johnson objected to the flier ( and probably threatened to sic the Judicial Ethics Panel on him), Callaghan removed the flier from his Facebook pages and ran radio ads saying the flier’s “specific characterization of the White House visit may be inaccurate and misleading,” and “candidate Callaghan apologizes for any misunderstanding or inaccuracies.”

The case was heard by a retired supreme court justice and four circuit judges, after the entire court recused itself, having hired Johnson as Supreme Court administrator.

Callaghan has filed a federal lawsuit contending that the disciplinary case violated his First Amendment rights, arguing that the flier was obvious  hyperbole or parody, and was not intended to be taken literally.  I think Callaghan has a case. Would you call that flier convincing? Do you think it is meant to make anyone believe that Obama and that judge were really partying together? Or that Obama is really having a beer? How stupid does the court think voters are?

The West Virginia Supreme Court of Appeals has upheld bans on “knowing or reckless false statements” by judicial candidates, but I don’t see that there was any intent to deceive. All the flyer really says is that Johnson supported Obama. Is it really claiming that Obama and Johnson “partied” together?  Is it right and fair to fine Callaghan 15,000 bucks because of that amateurish graphic? Calling it photo-shopped is an insult to Photoshop.

This shows that judges get no leeway with facts or artistic license when it comes to campaigning, at least in West Virginia.

______________________

Pointer and Facts: ABA Journal

 

18 Comments

Filed under Government & Politics, Humor and Satire, Law & Law Enforcement, Marketing and Advertising, Professions, Rights

18 responses to “Ethics Lesson: Judges Can’t Campaign Like Other Candidates

  1. The ad was geared toward coal miners in WV. Not known for high membership in MENSA….or their love for Obama. I think it was fully intended to be deceptive. I think it is all the more egregious because it is directed at people who are not sophisticated or well educated and so are particularly vulnerable to manipulation.

    I work in the carpet cleaning industry and – while not as bad as coal mining – we have a good sized segment that are also poorly educated and during the presidential campaign filled my FB feed up sharing the worst of the worst fake news claiming the Clintons were secret satanists and controlled a huge child sex trafficking operation, that they murdered Scalia and any other conservative that crossed them and Obama was a muslim who wanted to impose sharia law on the nation…..and they totally believed it. Every word of it.

    • Other Bill

      No sure you really want to say carpet cleaners are dumb and coal miners are dumber, do you Lisa? I know a window cleaner who’s very bright. Certainly smart enough to know he can make a really decent living working for himself cleaning windows. Makes his own hours. Is his own boss. Sure he’s opinionated and wasn’t crazy about Obama, but he wasn’t alone in that regard.

    • Neil Dorr

      The Supreme Court would beg to differ. Gullibility isn’t a defense. Case in point:

      (Hustler Magazine v. Falwell, 1988)

    • Chris Marschner

      Do you always denigrate a population when making a point. Whether some miners are eligible for Mensa is unknown. Would you make the same attribution toward inner city blacks? Intelligence can be measured in many ways.

      • I know, Chris, and certainly there are some very well-educated and sophisticated members of both fields, however, as a demographic they tend to be poorly educated, as are many who end up in careers requiring body punishing labor, exposure to toxins and low wages. I can speak from experience in my industry and I, myself, did not graduate high school. The state of WV is the least educated state in the nation.
        http://247wallst.com/special-report/2014/09/23/americas-most-and-least-educated-states/

        I’m not trying to denigrate people from WV, coal miners or carpet cleaners. I am saying they are a population that is vulnerable to such manipulation and I think the judge knew full well what he was doing and was taking advantage of the vulnerability and the heavy conservative bias.

  2. Other Bill

    And then again there’s always the question of whether it’s a good idea to have judges elected through political campaigning rather than appointed.

  3. Chase Davidson

    I’m not 100% sure that judges should be elected at all, but I do think that they should avoid campaigning like politicians. My problem, ethically speaking, with the campaign ad here is not that it was such a bad, stupid, hyperbolic falsehood (these are allowed), as the fact that it is a partisan smear intended to tie his opponent to the Democratic Party. I think judges have a duty to maintain at least the appearance of impartiality, and a judge-candidate directly attacking his opponent for alleged party affiliations endangers that (because the obvious message here is that anyone who is in obama’s presence must be an untrustworthy liberal rather than a real american).

  4. Anonymous Coward

    > I think Callaghan has a case. Would you call that flier convincing? Do you think it is meant to make anyone believe that Obama and that judge were really partying together? Or that Obama is really having a beer? How stupid does the court think voters are?

    This feels like misdirection: the picture on the front is dumb, but the words on the back are what is damning

    >Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama’s legislative agenda

    When what actually happened was
    > Johnson had visited the White House for a federally required conference on fighting child trafficking, but he didn’t see Obama there

    Going to a required conference on fighting child trafficking now equals “supporting Obamas legislative agenda/I hate coal workers”.

    Now, I do not know if he does or not, but if he did you could do a damn better job pointing it out if it’s true.

    If a news outlet tried to claim this equivalency we’d (rightly) decry it as fake news.

    I have other, more extremist views on coal in today’s world, but I will hold them back (perhaps posting them as a separate commend, as to avoid them taking over any discussion on this one)

  5. Rick

    “How stupid does the court think voters are?” I don’t necessarily think these voters are stupid but there sure are alot of distractions out there (and some voters are the low information type aka: lazy). The photo itself is designed to sum up and frame a certain circumstance. That circumstance is based on falsehood. I’m hopeful that the court actually saw through this vile trash.

  6. wyogranny

    It is meant to deceive and I think it did deceive.
    Not everyone is media savvy whether they have a decent IQ or not. Some people are social media naive enough to believe that what is on media is true.
    My mother is not stupid by any means but at 89 she is also not living in the computer world. She might well believe a sign like that. Especially if it confirms her bias. It’s too close to call as not intentional deceit. It’s as just likely to be deceptive as it isn’t.

  7. Glenn Logan

    Okay, this took me a while. Jack, your First Amendment point is valid, I think. This is clearly hyperbole that nobody, not even a MENSA-challenged West Virginia coal miner (to shamelessly borrow Lisa’s construction) would believe the picture represents an actual meeting between the Obama and the judge.

    However, the text looks deceptive to me. To wit:

    …Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama’s legislative agenda.

    This, to be blunt, did not happen. Your article describes the visit to the White house as a ” … federally required conference on fighting child trafficking…”, and thus in no sense was it supportive of Obama’s agenda, except to the extent that his agenda supported fighting child trafficking. Surely, no rational person is willing to accept this as substantially similar to the objectionable parts of his legislative agenda as it relates to jobs, the main point of the communication. I think we can all agree that fighting child trafficking is a worthy bullet point for any president of whatever political stripe.

    There is therefore no rational way in which this event could be described by the words in the statement. It is deliberately and unambiguously deceptive in that sense, and doubtless intentionally so. It is also hyperbolic, and perhaps even parody, but those facts don’t cure it’s deficiencies from a judicial ethics standpoint.

    Was the flier “in every sense materially false?” I don’t think so, but I do think it was “knowing[ly] or reckless[ly] false” in the sense of the disciplinary case in at least one significant particular, and in overall tone.

    As to the First Amendment survivability of the suspension, I suspect it will be a close call.

    • I quoted the description of the conference right out of the ABA report, but I cannot seem to find what is “federally required” about it. Who ever heard of a “federally required” conference? The Feds can’t make anyone hold or attend a conference, and certainly not at the White House. If it was held at the White House, it isn’t unreasonable that the Administration was seeking good publicity; if the judge attended, then he was bolstering the President’s agenda in a broad sense—or at least, it is not perse dishonest for someone to think of it that way or describe it that way. Bias makes candidates stupid.

      • Glenn Logan

        If it was held at the White House, it isn’t unreasonable that the Administration was seeking good publicity; if the judge attended, then he was bolstering the President’s agenda in a broad sense—or at least, it is not perse dishonest for someone to think of it that way or describe it that way. Bias makes candidates stupid.

        Fair point. Still, required or not and even political or not, it’s pretty clear that the depiction in the text was misleading, especially considering the point he was trying to make, which was economic.

        The conference had nothing to do with economics at all, or at least not to a discernible level from the reporting. Conflating two unrelated things as related looks deliberately deceptive to me. It wants us to conclude the conference was an Obama meet-and-greet for people who support him. Unless the article reporting it was itself deceptive or inaccurate, that doesn’t appear to be remotely close to true, except in a very broad sense that can’t rationally be tied to the point of the communication.

        Oh, sure, anyone can say that any support of president Obama, even the acceptance of an invitation for a conference on child trafficking is tantamount to support for each and every bullet point of his agenda, even unrelated economic matters. Unfortunately, I think this is just a bridge too far for a reasonable person in this case.

        • Oh, it’s the kind of deceitful campaign garbage that pollutes the process. My problem is that the deception was hardly material. By campaign standards, it was mild. So Johnson supported Obama, that’s all it says, substantively. Is that a lie? An opinion? For that he gets fined 5 figures and loses his job for two years, and the election gets over-turned? I sure smells like a partisan hit by the judges who wrote the opinion.

          • Phlinn

            On thing that was bothering me, would something like the eggshell skull rule be fairly extended to cover this? If some people ARE deceived, it doesn’t matter if that was your intent or not. They would then have to prove that some people were fooled.

            • But judicial discipline is based on how seriously the judge’s conduct breached judicial standards and implicated his honesty, dignity and fitness as judge. That’s an objective standard.

          • Glenn Logan

            I find myself completely in agreement with your point about the sanction. In fact, that may be the bigger reason why it eventually gets overturned or modified. I really hadn’t considered that in my comment, I was only addressing the question of whether or not the communication was deliberately false.

            But I can’t see why, even if it was false, it deserved such a harsh sanction considering the context. So I think we are in agreement there.

            Also, I agree with you that it was comparatively tame by campaign standards, but I also suspect that judges running for office simply aren’t allowed the leeway that regular politicians are when it comes to ethics breaches, since they have professional oversight. Having said that, I can’t believe I didn’t comment on the penalty, which, as you say, looks more like a partisan hit-job than a reasoned judicial sanction.

            But I still believe that there were grounds for action because of the way the piece was done, and more importantly, who was doing it. Perhaps that’s wrong, and we should simply allow judges the full latitude politicians are allowed when it comes to campaign commentary, ethics rules be damned.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s