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