Assaults on the judiciary.

In late summer 1963, the United States Supreme Court convened in San Francisco to honor Chief Justice Earl Warren, just as I finished my first month of teaching law at Berkeley. The capstone event was a tribute at the Masonic Auditorium on Nob Hill.

As the dignitaries approached the side door, a protestor bearing an anti-Warren placard thrust into the hands of a startled chief justice a leaflet that urged his immediate impeachment. The ever genial Warren regained his composure, smiled graciously, and accepted the flier with aplomb. For me, having just begun to teach constitutional law, this was a momentous experience. That image has remained vivid ever since.

That encounter between Earl Warren and the demonstrator reminds us these concerns are hardly new to the 1990s. Judges and their opinions have been targets of attack, often intemperate, since the earliest days of the republic. John Marshall probably took as much grief in the press of his time as has any successor chief justice--criticism from several presidents, as well as from editors and columnists.

Much later, President Theodore Roosevelt said of the great Justice Oliver Wendell Holmes--who, he felt, had betrayed him in an antitrust case--that he "could carve out of a banana a judge with more backbone than that." Roosevelt then declared that Holmes would never again set foot in the White House.(1)

Nearly a century ago, Harvard Law School Dean Roscoe Pound warned that a major cause of public distrust of the legal system was "public ignorance of the real workings of courts due to ignorant and sensational reports in the press."(2) So the issue of assaults on the judiciary is not new, however much the targets of current attacks may feel like pioneers.

Nonetheless, the intense judicial criticism of the late 1990s is not simply business as usual. In several ways, the current attacks on the bench seem more troubling than those of any time in the past. For one, the sheer speed with which such corrosive messages travel and the vast impact they acquire through modern communications technologies distinguish the current situation not only from colonial times but also from the age of Earl Warren.

Those same information technologies have also brought the courts and their business into the living rooms and the daily lives of a far larger portion of the public than ever before. Even as a champion of cameras in the courtroom, and of openness in government, I recognize the degree to which such intense media coverage has made a fragile institution more visible and thus more vulnerable than it ever was before.

A second difference lies in the source of these attacks. Bench-bashing seems to have moved from the fringe, where it once was largely confined, to the mainstream. Instead of the little old lady in tennis shoes who thrust the impeachment flier into Earl Warren's hand, today's critics are to a distressing degree prominent members of Congress and of the bar. Attacking judges, once seen as the perverse province of extremists, has become an eminently reputable activity for the political and legal establishment.

Let me note other ways in which the equation has altered. On one hand, the critics--even highly intemperate critics--seem now to enjoy a measure of legal license they did not always have. While lawyers are still constrained to a greater degree than others, even the antijudicial speech of attorneys has been progressively unshackled.

This trend is, on the whole, one that we champions of free expression applaud. Nonetheless, it is potentially worrisome in the current climate. Meanwhile, freedom of speech for judges has not fared so well. The capacity for judicial response, even to highly intemperate criticism, is constrained by canons and norms of judicial ethics--though there have been several encouraging developments, which I will address later.

Finally, there is the deeply troubling and ever tighter nexus between attacks on judges and political strategies and outcomes. The last presidential campaign focused to an unprecedented degree on the selection of federal judges and came as close as at any time I can recall to offering a pledge by one candidate to reshape the views of the federal bench on specific issues of obvious concern to anxious voters.

While the outcome of the election may moot the immediate threat, the prospect persists in ominous form at the state level, as well as in Congress. Stephen Bright, a close observer of these phenomena, wrote late last year:

Politicians have long blamed judges for forcing

them to take unpopular actions... but

many of those politicians had enough respect

for the courts that they were careful not to take

their criticism too far. Today, however, politicians

criticize judges for the purpose of intimidating

them and getting specific results.(3)

So in all these ways, the current attack on the judiciary evokes a greater measure of alarm than anything we have witnessed before.

The purpose of this article is to address three issues: First, to what degree may judges respond to attacks upon them and their decisions? Second, to what extent are attacks upon the judiciary--even irresponsible and damaging attacks--protected by the First Amendment? Third, what may be done within constitutional limits to enhance the civility and rationality of such discourse?

How may judges respond?

Let us start with the judge's comer--the degree to which verbal attacks on the judiciary may be countered or corrected. The conventional wisdom is that which New York Court of Appeals Chief Judge Judith Kaye has expounded:

[T]o secure an impartial forum, even for their

most vocal critics, and to assure the dignity of

the judicial process, judges by and large must

stay out of the fray. They do not duel with public

officials about the correctness of their decisions;

they do not conduct press conferences

about cases; and they have no call-in radio and

television programs to explain their rulings.

They rely on their decisions, whether written

or oral, to speak for themselves.(4)

Stephen Bright adds the practical caveat that "judges do not command the media attention of a presidential candidate [and] do not start media `feeding frenzies.'"(5)

These constraints have been embodied in the Model Code of Judicial Conduct and comparable state canons of judicial ethics and responsibility. Such constraints, as Chief Judge Kaye noted, "bar judges from making statements that detract from the dignity of office, commenting publicly on the merits of a pending or impending action, or making any statements that cast doubt on their impartiality."(6)

The cases are legion in which judges have been taken to task for what would seem to most laypeople, and even to many experts, wholly innocuous public statements.(7) To cite but one case, in which our Thomas Jefferson Center for the Protection of Free Expression filed a Supreme Court brief last year, New Jersey trial judge Evan Broadbelt was barred from even appearing as a commentator on Court TV because of the network's commercial sponsorship.(8) This occurred even though he scrupulously avoided any comment on cases pending in New Jersey or likely ever to come before his court. In myriad situations where other citizens holding any other position would be completely free to speak, judges are held to appreciably higher standards, reflecting the values Chief Judge Kaye outlined.

Judges have not always been so severely constrained. Chief Justice John Marshall, albeit under a pseudonym, answered his critics through a series of letters to a newspaper editor, defending both the Court over which he presided and the merits of particular decisions.(9)

Former ABA President Talbot "Sandy" D'Alemberte noted that "the level of tolerance shown judicial speech since the birth of the United States has fluctuated depending upon the passion of the speech, the popularity of the speaker, and the power of those against whom the speech was directed."(10) Yet the conventional wisdom these days is, as Chief Judge Kaye recently observed, that judges are expected to suffer in silence, no matter how inflammatory or inaccurate the attack may be.

Even in these circumspect times, one would be naive to insist that judges must always be seen but not heard, save for technical rulings from the bench and innocuous graduation speeches or after-dinner tributes. The best rationale I have found for a broader view of judicial speech comes from an article written several years ago by Professor Erwin Chemerinsky:

There are many reasons why a judge decides

to talk to the press. Perhaps the judge wishes

to criticize an aspect of the legal system and

call for reform. Perhaps the judge wants to

clarify a matter about which there is confusion.

Perhaps the judge sees a unique opportunity

to educate the public. Perhaps, at times,

it is simply a matter of ego and the judge enjoying

the media attention.(11)

Professor Chemerinsky concluded, fully aware that his tolerance is not universally shared: "Hopefully speech by judges will enlighten and educate the public or, at the very least, allow the public to see judges in a more human light."(12)

Several cases provide evidence of an emerging and more sympathetic view of judicial expression. Recall, for a moment, the unique plight of Los Angeles Superior Court Judge Roosevelt Dorn. The only African American on the court, Dorn had been tapped to preside over the trial of those who beat truck driver Reginald Denny in the aftermath of the Rodney King Roscoe Pound Foundation champions the civil justice system verdict. But prosecutor Ira Reiner used his one peremptory bench challenge to bar Dorn from the case.

When confronted by the press, Reiner initially cited supposed problems with Judge Dorn's calendar and concerns about security in his courtroom--though Dorn had cleared his calendar with his chief judge, who praised him as one of his most productive colleagues. Reiner soon recanted, conceding that neither the calendar nor the security issue was his true rationale. He now claimed that Dorn lacked a "judicial temperament," adding that "he has had a severe difficulty with a good many people who appear in his court."(13)

Judge Dorn was understandably indignant. He took the unusual step of calling a press conference to, as he put it, "set the record straight." The calendar pretext he termed "an out and out lie."(14) Such a claim was worse than simply false; there were racial overtones, noted the judge, to have it "going throughout the country that the black judge was not effectively able to handle the calendar."(15) Dorn now insisted that both the calendar and temperament claims were "just another attempt to cover up whatever [Reiner's] real reason is for taking this actions."(16)

Later, when Reiner sought reelection, Judge Dorn entered the political fray, telling parishioners at a black church that "the issue is how African Americans are being treated by elected officials in this community."(17) It is not known whether this comment affected the outcome, but Reiner lost the election.

Judge Dorn, meanwhile, returned to his criminal docket. No one (not even Reiner) suggested that Dorn should be chastised, much less disciplined, for his outspoken defense--even though California judges are probably held to stricter standards in regard to out-of-court comment than those of most other states.

The Dorn case offers a compelling example, in which constraints that would normally deter or inhibit a besieged trial judge were implicitly relaxed, even without benefit of formal language or advisory opinion. Several factors support so tolerant a view, despite the pointed nature of the judge's statements and the novelty of the medium through which they were expressed (recall Chief Judge Kaye's comment that "judges do not conduct press conferences about [pending] cases").

The allegations against Dorn were not only false but personally insulting and (in effect if not intent) racially derogatory as well. To have allowed such claims to go unanswered would almost certainly have undermined citizen confidence in the judicial process--at least in the African American community.

Moreover, revealing the truth entailed no reference to the facts of the pending case--Dorn never mentioned the merits of the Denny prosecution--but only to such issues as whether his calendar was clear and his courtroom secure. Those matters could be and were discussed very publicly without tainting the fairness of the eventual trial of Denny's assailants before another judge.

Finally, the person best equipped to "set the record straight" was obviously Judge Dorn himself. Forcing reliance on the words of a chief judge, or of a nameless "court spokesperson," would have missed the point. This, almost uniquely, was a case in which the judge ought to have been able to defend himself in ways that only he could effectively do.

Thus, while the canons might well condemn what Judge Dorn did, it seems inconceivable that any violation would have been charged. If such charges had been brought, a California appellate court would almost certainly have exonerated him.

Another case, on which the ink is barely dry, seems consistent and potentially helpful, though it is undeniably controversial. Justice Richard Sanders was elected to the Washington Supreme Court in the fall of 1995. Immediately after taking his oath the following January, Sanders addressed a rally of his supporters, convened by an anti-abortion group.

In his brief remarks, Justice Sanders declared that "nothing is, nor should be, more fundamental in our legal system than the preservation and protection of innocent human life." Noting that "I owe my election to many of the people who are here today," Sanders thanked his supporters and added that "our mutual pursuit of justice requires a lifetime of dedication and courage."(18)

The Washington Commission on Judicial Conduct undertook a formal inquiry of the propriety of Justice Sanders's statement. Commission Counsel Don Marmaduke expressed the concern this way: "Justice Sanders stepped over the line and broke the rules. [His] conduct undermines public confidence because his participation and speech effectively made him, in his judicial capacity, an advocate for the pro-life movement."(19)

The commission agreed, and found that Sanders had indeed breached several of the norms of judicial propriety. He was formally reprimanded and required to complete a course in judicial ethics.(20)

Sanders sought the aid of the Washington State Civil Liberties Union, which believed his free speech had been abridged. He appealed, and in late April of this year, the Washington Supreme Court---actually court of appeal judges sitting pro tempore as the supreme court--exonerated Sanders and dramatically reshaped the applicable legal standards. The key to this ruling, said the high court, was that "judges do not forfeit the right to freedom of speech when they assume office."(21)

The court found the powerful state interest in judicial impartiality to be outweighed by free expression. The test to be applied in such a case was that of strict scrutiny--the highest level for First Amendment review of government curbs on citizen speech.

A judge's speech could therefore be penalized only on the basis of "clear and convincing evidence of speech or conduct that casts doubt on a judge's integrity, independence, or impartiality"(22) or "clear and convincing evidence of conduct that threatened or compromised the integrity or appearance of impartiality."(23)

Such primacy of expressive interests reflected a judge's right to speak freely. No less compelling to the court were the interests of Washington's citizens and voters-the "need for the free expression of those views in a system wherein members of the judiciary are elected to office by the vote of the people."(24)

Applying such precepts to the facts, the court found nothing in Sanders's remarks that expressed or implied either a promise or a refusal to "decide particular issues in a particular way, or as an indication that he would be unwilling or unable to be impartial and follow the law if faced with a case in which abortion issues were presented."(25)

Justice Sanders and his supporters were ecstatic, feeling fully vindicated by this welcome judgment of peers. Media reaction has been predictably mixed.

It is too early to offer full analysis of the Sanders ruling. The court did not, of course, invalidate any part of the Washing ton Judicial Code. Nor did it overrule or even qualify prior rulings on the propriety of judicial statements or conduct--indeed, given the ad hoc/pro tempore nature of the tribunal, it is not even clear that such action could have been taken.

What the Sanders court did say was two things of profound importance to the status of judicial expression, whatever one's view of the merits of the justice's remarks: First, that judges enjoy so substantial a measure of free speech that constraints upon them must be tested by the strictest scrutiny that protects political speech of private citizens. Second, that despite Sanders's not-so-veiled espousal of pro-life views, nothing he said amounted either to a promise or to disclosure of disqualifying bias.

Surprisingly few commentators have wrestled with these constitutional issues. One person who has done so is Professor Chemerinsky. In a 1995 article, he anticipated many of these questions, albeit in the context of judicial comments about pending cases.

On the precise constitutional issue raised in Sanders--the proper First Amendment standard for gauging curbs on judicial speech--he suggested that the choice among the conventional options may matter less here than elsewhere. He did argue that two recent West Coast cases were wrongly decided under whatever may be the proper test, and that Judge Lance Ito's celebrated interview with KCBS after completion of the O.J. Simpson criminal trial for murder was clearly First Amendment protected.(26)

Had such issues arisen in the Washington state system, at least post-Sanders, there would be little doubt about the outcome. The crucial issue now is how many other states are likely to follow Sanders.

The state of Washington has a long history of being different--sometimes a pioneer or bellwether for the rest of the nation, at other times a lonely sentinel. It remains to be seen which way this issue will devolve.

How irresponsibly can critics attack?

Those who attack courts and judges are clearly engaged in political speech. Yet, it is a kind of speech that government may well seek to constrain. As Stephen Bright noted, "irresponsible criticism which brings about the removal of judges from office or influences their decisions is incompatible with judicial independence and the rule of law."(27)

The tension is endemic and of long standing. Chief Judge Kaye observes that "for as long as there have been judges, there have been lawyers critical of their decisions, often very vocally."(28)

Speaking ill of judges and their judgments was once risky business. In 1907, Justice Oliver Wendell Holmes, writing for a nearly unanimous Supreme Court, sustained the contempt conviction of a Denver publisher who dared run editorials and cartoons that were critical of Colorado's supreme court.

The commentary on which the charge was based suggested (with substantial basis in fact) that a partisan Colorado bench had become captives of partisan corporate interests and had betrayed the voters on issues of utmost importance. Justice Holmes saw the case as an easy one--partly because the First Amendment did not yet extend to the states, while nothing in the general language of due process precluded such an exercise of the contempt power.(29) Thus, even a court that was clearly out to protect its own image from hostile media might send a publisher or editor to jail for disrespectful commentary.

There matters remained until, in 1941, the Supreme Court in the Bridges case adopted a dramatically different view. The issue was whether a labor leader and a newspaper could be punished for their public and critical views about a pending case, contained respectively in a telegram and an editorial. The state courts had imposed such contempt, finding ample evidence that comments of this nature could threaten the fair and orderly administration of justice. A sharply divided Supreme Court reversed both sanctions.(30)

Nothing less than a "clear and present danger" to the fairness of the judicial process would warrant restraining the media or a private citizen from expressing critical views. Though many state courts had upheld contempts under such conditions, the majority rejected that view and insisted that this most rigorous of free speech standards applied as fully "to out-of-court publications pertaining to a pending case" as it did in other contexts. While both the telegram and the Los Angeles Times editorial could be read as posing a threat--of a strike in one case and of future press criticism in the other--neither met the clear and present danger standard.

The four dissenters viewed the case quite differently. They insisted that "a trial is not a `free trade in ideas'" to which full First Amendment protection applies, and warned that "a court is a forum with strictly defined limits for discussion."(31)

"Freedom of expression," they cautioned, "can hardly carry implications that nullify the guarantees of impartial trials."(32) Extending the concept of "clear and present danger" to such statements seemed to the dissenters especially pernicious.

Had one member of the Bridges majority shared these views, the whole course of our constitutional history would have been quite different. But a bare majority in 1941 set the Supreme Court on a course from which it has never really wavered--a course that treats commentary on pending judicial proceedings as fully protected speech, punishable only if a clear and present danger is posed to a pending trial.

The Bridges doctrine has been applied in myriad subsequent cases, several at the highest level--to reverse contempts, for example, imposed on an outspoken Georgia sheriff,(33) and in the celebrated case involving caustic comments by New Orleans District Attorney Jim Garrison.(34) The Garrison decision not only reaffirmed the Bridges principle, but extended to judicial commentary the New York Times privilege of fair comment on public officials and public figures, thus encompassing statements that were not only critical but also potentially defamatory.

The speech of lawyers has, of course, always posed a special challenge. New York's Chief Judge Kaye observed that "from earliest times lawyers have had, in addition to special privileges, special responsibilities to the courts."(35)

Although those obligations have been substantially codified in the canons of professional ethics and state codes of professional responsibility, Judge Kaye noted a surprising "paucity of published decisions"(36)--a lacuna that leaves the scope of the formal constraints curiously imprecise. Moreover, the difficult issue of how different lawyer speech is for First Amendment purposes from judicial attacks by nonlawyers remains surprisingly unsettled. Judge Kaye cited several state cases that limit lawyers' statements "implicitly, if not explicitly, [on the ground] that, as members of a regulated profession and officers of the court, lawyers surrender some of their First Amendment rights."(37)

The Supreme Court has addressed the limits of lawyer speech on many occasions, most often in the context of advertising. The patchwork that has emerged from those rulings seems the least satisfactory facet of commercial speech.

The few cases that shed light on the issue before us are somewhat more satisfying. In the late 1950s, the Court recognized that attorneys owed a special duty--and were thus properly held to a higher standard than others--in comments on pending proceedings.(38) That view persisted, with little controversy, through the ensuing three decades.

By the early 1990s, the time had come to revisit the issue in a substantially changed constitutional environment. The Court decision in Gentile v. State Bar of Nevada sustained against First Amendment challenge a standard somewhat lower than "clear and present danger" for curbing attorney speech on pending cases.(39)

The majority noted that, in striking down restraints on media coverage of judicial proceedings, even Justice William Brennan had recognized that "as officers of the Court... attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice."(40)

The Court adopted as the operative limit on attorney speech the one most states had embraced, pursuant to the ABA Model Rules of Professional Conduct--speech that poses "substantial likelihood of materially prejudicing an adjudicative proceeding."(41) On the facts, the lawyer sanction was reversed, since the timing, content, and probable impact of the statement in issue seemed unlikely to create such "material prejudice."(42)

The Gentile case leaves unresolved several difficult issues: How far beyond attorneys--for example, to other officers of the court and ordinary citizens--does the lesser standard apply? What difference does it make whether or not the statement targets a judge? Most important for our current focus, how far does the lower standard apply, if at all, to hostile or critical attorney speech that does not address a specific pending case? Gentile simply does not resolve these issues, and the Supreme Court has not subsequently addressed them.

Perhaps, therefore, we should not be surprised by the division among lower courts on the scope of protection for what might be called judge-bashing in the abstract, criticism that is not aimed at pending cases. The law is clearly in flux. An intriguing split seems to be emerging among federal courts of appeal.

The Ninth Circuit, often the source of novel notions, has embarked on a different course in this area as well. The case involved a Southern California attorney named Yagman, who had called a particular trial judge (among other less than endearing terms) "dishonest," "buffoon," and "drunk."(43) Yagman had also charged the judge with acts of anti-Semitism, specifically of singling out Jewish lawyers for harsher treatment in his courtroom. Yagman was disbarred for two years for violating a local federal district court rule that forbade attorney conduct which "degrades or impugns the integrity of the court."(44)

Yagman's appeal, however, found a sympathetic Ninth Circuit panel. Relying mainly on defamation cases, the court ruled that even so contumacious a lawyer could be disciplined only if his statements were demonstrably false--an issue on which the complainant or disciplinary body bore the burden of proof. Moreover, such charges could bring sanctions only if they "imply a false assertion of fact" and not simply an expression of opinion.(45)

Under so rigorous a standard, the scope of protection for attorney speech (including attacks on judges) becomes, in the view of one commentator, effectively coterminous with the "free speech rights... of the ordinary citizen engaged in political debate."(46) Since the statements for which Yagman had been cited contained far more opinion than fact, and since the burden of proof had not been met, even with respect to the fact-based claims, the disbarment was rescinded.

While the Yagman ruling seems not to have been followed elsewhere, it substantially enhances the scope of protection for critical lawyer speech in the most litigious part of the country. By applying so strict a First Amendment standard to highly damaging charges by lawyer against judge, the Ninth Circuit seems to have condoned a level of attorney incivility that would have been abhorrent in earlier times.

Yet, the premise of the decision--that lawyers do not forfeit their First Amendment freedoms unless their comments could jeopardize a pending case--is consistent with evolving precepts of free expression in other settings. The problem is that such a ruling could not have come at a worse time for the already frayed relationship between bench and bar.

Is there a kinder, gentler alternative?

Finally, what might be done to enhance civility and rationality in this vital dialogue? Chief Judge Kaye, once again, offered a most helpful framework:

Through the ages, legal luminaries have

wrung their hands over the proper balance between

the fundamental value of respect for

the law and the fundamental right of citizens

--even lawyer-citizens--to have their go at

courts and judges. By the same token, we have

long struggled with the question of the appropriate

response for judges who find themselves

the targets of such criticism.(47)

There has been no shortage of thoughtful solutions. Judge Kaye herself would expand public education and understanding--carrying on essentially where Roscoe Pound left off nearly a century ago. The ABA has responded by issuing strongly supportive statements and by creating at the highest level a Special Committee on Judicial Independence.(48)

State bar groups have also supported judges who are under fire and chastised critics who have lit such fire.(49) The American Judicature Society has intensified supportive efforts, raising the profile of its new Center for Judicial Independence.(50)

There are those who believe the only real solution lies in major structural change to the way in which judges are chosen and reaffirmed. Discussions of such proposals are clearly beyond the scope of this article.

Other observers argue that tighter reins must be imposed on critical comments, especially by attorneys. This spring, for example, a panel of federal judges in the Southern District of California proposed a rule that would disbar, suspend, or fine lawyers for making comments that "impugn the character or integrity of any judicial officer." As Chief Judge Terry Hatter explained, such a standard would at the least ensure that "reckless kinds of statements do not interfere with the administration of justice."(51)

Apart from how one might square such language with the Yagman decision on First Amendment grounds--this is the very district court, after all, where Yagman arose--so restrictive a rule would raise serious policy concerns. Ronald Talmo, a former law school dean, now an active Southern California practitioner, called the proposal "crazy," adding: "Judges should know better. To pass a regulation to protect themselves from criticism is disgusting. This is a good example of why people hate government."(52)

One need not embrace Talmo's rhetoric to reject the proposal. Curbing the critics is not the answer for a variety of reasons--save as may be necessary and constitutionally acceptable to ensure the fairness and impartiality of particular trials.

More promising is to revisit the other side of the equation. If critics may not be suppressed, can judges be empowered?

Any such hope would, of course, not rely upon the law of defamation; judges have repeatedly lost libel suits, since they are public officials, and usually public figures as well. Very recently, the Ninth Circuit, in just such a case, reminded fellow jurists that "wise judges, even when wounded by unfair assaults, have learned that the best policy is ordinarily to dismiss the attacks as part of the baggage of their jobs. Abusive criticism simply goes with the territory."(53)

Yet, the Ninth Circuit added, offering small solace, "that is not to say that the bench is helpless."(54) This comment, albeit in a slightly different context, reflects the approach I would stress. The instances I cited earlier--notably the cases of Judge Dom and Justice Sanders--suggest a quite different view of judicial speech.

Let me return by way of conclusion to the case of Judge Evan Broadbelt. Though he had a substantial television following, and many viewers found his insights helpful, he was told he must cease broadcasting on Court TV because his appearance on a commercial network could be seen as "lending the prestige of [his] office to advance the private interests of others" in violation of one of New Jersey's canons of judicial ethics.(55)

Broadbelt challenged the ruling, without success, through the New Jersey courts, and sought U.S. Supreme Court review. At each stage, he insisted the canon had been read too strictly--not only depriving viewers of valuable information and insight, but abridging a judge's freedom to speak in ways that could not possibly compromise the impartiality or objectivity of New Jersey's legal system.

Though I admit to a bias through our center's direct (if volunteer) role in the Broadbelt case, it seems to me the courts missed an invaluable opportunity here. One commentator has written eloquently of the potential value of judicial commentary, warning that public confidence in and support for the bench "will only decline unless the public understands some details of the constraints under which judges must adjudicate"--adding that "judges must take the forefront in actions to educate the alienated."(56)

Of course, a judge could be barred from appearing on a program that was actually sponsored by a bail-bonding firm, or by a court stenographic service, or perhaps by a private detective agency. If, however, mere commercial sponsorship categorically forecloses judicial participation, the appearance of impartiality comes at too high a price.

My closing suggestion, therefore, would be to encourage, rather than discourage, general judicial commentary of the type that Judge Broadbelt had been providing until he was silenced by his peers. There are, and should continue to be, special limits on judicial expression--restraints that are necessary to preserve both the fact and the appearance of objectivity in our courts. Yet, such vital interests do not require that the people who are most expert about, and often best able to demystify, the workings of our courts, need be kept silent.

My modest hope is that inflammatory criticism of judges would diminish--or would at least assume less venal potential-if the general public had more exposure to judges in their role as commentators on that which they know best.

Notes

(1.) See Michael Daly Hawkins, Judges on Judging: Dining with the Dogs: Reflections on the Criticism of Judges, 57 OHIO ST. L.J. 1353, 1360 (1996) (citing LIVA BAKER, THE JUSTICE FROM BEACON HILL: THE LIFE AND TIMES OF OLIVER WENDELL HOLMES 405 (1991)).

(2.) Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, Address Before the Convention of the American Bar Association (Aug. 26,1906), in 35 F.R.D. 273, 289 (1964).

(3.) Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions? 72 N.Y.U. L. REV. 308, 310 (1997).

(4.) Judith S. Kaye, Judicial Independence and Lawyer Criticism of Courts, 25 HOFSTRA L. REV. 703, 711-12 (1997).

(5.) Bright, supra note 3, at 327.

(6.) Kaye, supra note 4, at 712-13.

(7.) See generally Gregory C. O'Brien, Speech May Be Free, and Talk Cheap, but Judges Can Pay a Heavy Price for Unguarded Expression, 28 LOY. LA. L. REV. 815 (1995).

(8.) In re Inquiry of Broadbelt, 683 A.2d 543 (N.J. 1996) (per curiam), cert. denied, 117 S. Ct. 1251 (1997).

(9.) Hawkins, supra note 1, at 1356-57.

(10.) Talbot D'Alemberte, Searching for the Limits of Judicial-Free Speech, 61 TUL. L. REV. 611,620 (1987).

(11.) Erwin Chemerinsky, Is It the Siren's Call? Judges and Free Speech While Cases Are Pending, 28 LOY. LA. L. REV. 831,848-49 (1995).

(12.) Id. at 849.

(13.) See Jim Nelson, Judge Attacks Reiner over Removal from Denny Case, L.A. TIMES, Aug. 27, 1992, at A1.

(14.) George de Lamz, Prosecutor, Black Judge Trade Charges in LA. Riot Beating Case, CHI. TRIB., Aug. 27, 1992, at C26.

(15.) Black Judge Hits Back over Being Dismissed from Riots Case, Reuters, Aug. 26, 1992.

(16.) Nelson, supra note 13.

(17.) Eric Malnie, Feud Escalates as Jurist Calls for Reiner's Defeat, L.A. TIMES, Sept. 4, 1992, at B4.

(18.) See Todd Woody, How Free Should a Judge's Speech Be? THE RECORDER, Apr. 11, 1997, at 1.

(19.) Id.

(20.) In re Sanders, No. 96-2173-F-63, 1997 WL 259202 (Wash. Comm'n on Judicial Conduct May 12, 1997).

(21.) In re Sanders, 955 P.2d 369, 370 (Wash. 1998) (en banc).

(22.) Id.

(23.) Id. at 376.

(24.) Id. at 374.

(25.) Id. at 376.

(26.) See Chemerinsky, supra note 11, at 843-44.

(27.) Bright, supra note 3, at 308.

(28.) Kaye, supra note 4, at 705.

(29.) Patterson v. Colorado, 205 U.S. 454 (1907).

(30.) Bridges v. California, 314 U.S. 252 (1941).

(31.) Id. at 283 (Frankfurter, J., dissenting).

(32.) Id. at 284 (Frankfurter, J., dissenting).

(33.) Wood v. Georgia, 370 U.S. 375 (1962).

(34.) Garrison v. Louisiana, 379 U.S. 64 (1964).

(35.) Kaye, supra note 4, at 716.

(36.) Id. at 718.

(37.) Id. at 719.

(38.) In re Sawyer, 360 U.S. 622 (1959).

(39.) 501 U.S. 1030 (1991).

(40.) Id. at 1074.

(41.) Id. at 1042.

(42.) Id. at 1037.

(43.) Standing Comm. on Discipline v. Yagman, 856 E Supp. 1384, 1386 (C.D. Cal. 1994) (per curiam), rev'd, 55 E3d 1430 (9th Cir. 1995).

(44.) Id. at 1388.

(45.) Yagman, 55 E3d 1430, 1438.

(46.) Caprice L. Roberts, Note, Standing Committee on Discipline v. Yagman: Missing the Point of Ethical Restrictions on Attorney Criticism of the Judiciary?, 54 WASH. & LEE L. REV. 817, 842-43 (1997).

(47.) Kaye, supra note 4, at 705-06.

(48.) See, e.g., Jerome J. Shestack, The Risks to Judicial-Independence, A.B.A.J., June 1998, at 8; MA. Stapleton, ABA Comes to Defense of Judiciary, CHI. DAILY L. BULL., Nov. 12,1997, at 1.

(49.) E.g., Dana Coleman, NJSBA Counters Judge-Bashing, N.J. LAW., Dec. 2, 1996, at 3; 2 Panels to Review Criticism of Judges, N.Y.L.J., Sept. 30, 1996, at2.

(50.) AM. JUDICATURE SOC'Y REP., Spring 1998, at 2.

(51.) Davan Maharaj, California and the West, L.A. TIMES, Apr. 20,1998, at A3.

(52.) Id.

(53.) Dodds v. American Broad. Co., No. 96-56300, 1998 U.S. App. LEXIS 10459, at *12 (9th Cir. May 27, 1998).

(54.) Id. at*13.

(55.) Broadbelt, 683 A.2d 543, 548.

(56.) Chemerinsky, supra note 11, at 845. See also Mark Scott Bagula & Robert C. Coates, Trustees of the Justice System: Quasi-Judicial Activity and the Failure of the 1990 ABA Model Code of Judicial Conduct, 31 SAN DIEGO L. REV. 617, 637 (1994); Robert F. Copple, From the Cloister to the Street: Judicial Ethics and Public Expression, 64 DENV. U.L. REV. 549, 578 (1988).

RELATED ARTICLE: Roscoe Pound Foundations champions the civil justice system

The Roscoe Pound Foundation is the trial bar's think tank and emissary to the judiciary and law professors. The foundation honors Roscoe Pound--dean of Harvard Law School from 1916 to 1936 and one of the giants of American law--through its programs for lawyers, scholars, and judges.

The foundation reaches out to the judiciary with its annual Forum for State Court Judges. At this year's forum, held during ATLA's annual convention in Washington, D.C., Professor Robert O'Neil of the University of Virginia School of Law spoke about assaults on the judiciary. The paper he presented begins on page 54 of this issue.

After each forum, the foundation publishes a report that includes the papers presented and the comments of the participants. The following reports are currently available for $38 each:

* Scientific Evidence in the Courts: Concepts and Controversies reviews the current controversy surrounding scientific evidence in the courts. The report discusses the question of whether courts should require proof that an expert's opinion is generally accepted in the scientific community as articulated in Frye v. United States (293 F. 1013 (1923)) and examines the developments following the (LS. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 (1993)). (Publication date: 1997)

* Preserving Access to Justice: The Effect on State Courts' of the Proposed Long Range Plan for Federal Courts analyzes the constitutionality of the federal courts' plan to shift caseloads to state courts without adequate funding support, as well as the plan's impact on the public's access to justice. (Publication date: 1995)

* Preserving the Independence of the Judiciary covers the independence of judicial selection processes and resources available to the judiciary. (Publication date: 1993)

* Protecting Individual Rights: The Role of State Constitutionalism discusses the renewal of state constitutionalism on the issues of privacy, search and seizure, and speech, among others. The report also includes a discussion on the role of the trial bar and academics in this renewal. (Publication date: 1992)

For more information about the foundation or to obtain a report, contact the foundation at 1050 31st Street, N.W., Washington, DC 20007, [phone], fax [phone].

Robert M. O'Neil is the director of the Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Virginia, and a professor of law at the University of Virginia. Professor O'Neil delivered this paper to the Roscoe Pound Foundation Forum for State Court Judges in Washington, D.C., in July.