Two Kentucky judicial candidates likely showed that the Kentucky Judicial Conduct Commission violated their First Amendment rights with vague allegations of rule violations made by campaign statements.  A divided panel of the 6th U.S. Circuit Court of Appeals granted the two candidates emergency injunctive relief. 

On Sept. 27, 2022, the Kentucky Judicial Conduct Commission sent letters to Joseph Fischer and Robert Winter, who are running for the Kentucky Supreme Court and Kentucky Court of Appeals, respectively.  The letters said several individuals had filed complaints that Fischer and Winter had engaged in political or campaign activity inconsistent with the Kentucky Code of Judicial Conduct. 

Two complaints asserted that Fischer had identified himself as the nominee of the Republican Party and had made pledges and promises on controversies likely to come before the court. A complaint against Winter made similar allegations.

The commission asked the two candidates to file a written response and to attend an informal session. Fischer and Winters sued in federal court, contending that several rules of the Judicial Code of Conduct violated the First Amendment both on their face and as applied to the candidates. 

The plaintiffs sought a ruling from the federal district court to preliminarily enjoin enforcement of the rules. The district court denied the plaintiffs’ request for injunctive relief. The plaintiffs then filed an emergency motion for an injunction pending appeal.

Hearing this motion, a divided three-judge panel of the 6th Circuit reversed the lower court in its Oct. 28, 2022, decision in Fischer v. Thomas. The majority opinion — a per curiam opinion from Judges Amul Thapar and Eric E. Murphy — first found that the plaintiffs had standing to challenge the rules. Then the majority turned to the merits of the case. They criticized the commission’s allegations as vague and noted that several of the rules presented First Amendment problems.

For example, the court examined the rule that prohibits judicial candidates from publicly identifying themselves as nominees of a political party. Fischer’s campaign materials read, “Joe Fischer for Kentucky Supreme Court, The Conservative Republican.”

The majority noted that Fischer never claimed to be the Republican nominee, just that he was a Republican and that he was conservative. Candidates have a First Amendment right to identify themselves as members of a political party.

The majority then addressed the allegation that Fischer and Winter had made impermissible pledges or promises about the issue of abortion.  The Kentucky Rules of Judicial Conduct prohibit judicial candidates from making “pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”

The allegations come from the fact that Fischer and Winter had received endorsements from pro-life groups, such as Kentucky Right to Life and Northern Kentucky Right to Life.

“There’s nothing constitutionally problematic about those groups endorsing the candidates,” the majority opinion reads. “And just as with partisan endorsements, the candidates have no obligation to disavow endorsements they receive from advocacy groups either.”

The majority opinion added: “When a judicial commission sends vague and threatening letters to candidates on the eve of election, it puts the candidates to a choice between self-censorship and uncertain sanctions.  The First Amendment protects the candidates from having to make such a choice.”

Judge Richard Allen Griffin wrote a dissenting opinion. He reasoned that because the lower court found no credible threat of enforcement, he would “deny plaintiffs’ emergency motion for an injunction pending appeal.” He also concluded that the plaintiffs lacked standing.

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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).