FILED
FOR PUBLICATION FEB 02 2011
JUDICIAL COUNCIL MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
OF THE NINTH CIRCUIT
IN RE COMPLAINT OF No. 10-90016
JUDICIAL MISCONDUCT ORDER
KOZINSKI, Chief Judge:
A pro se litigant charges that a judge made public comments that violated
the Code of Conduct for United States Judges. She alleges that, after the
September 11, 2001 attacks, the judge gave a speech in which he stated he “had a
sickening feeling in [his] stomach about what might happen to race relations and
religious tolerance” and that the “[c]riminalization of immigration laws”
constituted “[i]nstitutionalized racism.” Complainant also alleges that, in another
speech, the judge “criticized [a senator’s] work in trying to investigate campaign
finance controversies involving [two individuals], both of whom eventually pled
guilty to felony campaign finance law violations.” (First two alterations in
original).
A judge does not check his First Amendment rights at the courthouse door,
to be reclaimed at the expiration of his judicial tenure. See generally Leonard E.
Gross, Judicial Speech: Discipline and the First Amendment, 36 Syracuse L. Rev.
1181 (1986). The Code of Conduct encourages judges to “speak, write, lecture,
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teach, and participate in other activities concerning the law, the legal system, and
the administration of justice.” Code of Conduct for United States Judges Canon 4.
Engaging in such law-related activities—including speeches that comment on
current events and legal developments—is permitted not only because judges are
citizens, but because they are particularly knowledgeable on such topics. Their
speech may thus enhance the public discourse and lead to a more informed
citizenry. Here, the complaint alleges that the judge expressed his thoughts on
racial and religious tolerance post-9/11, the direction of immigration law and a
campaign finance controversy. These comments fall squarely within the ambit of
protected speech and are precisely the kind of activity that the Code of Conduct
encourages. Because complainant has not alleged behavior that is “prejudicial to
the effective and expeditious administration of the business of the courts,” this
charge must be dismissed. 28 U.S.C. § 351(a); Judicial-Conduct Rule 11(c)(1)(A).
Complainant also alleges that the judge “made jokes about [a candidate for
high public office].” The mere fact that a statement takes the form of a joke does
not render it misconduct; humor is the pepper spray in the arsenal of persuasive
literary ordnance: It is often surprising, disarming and, when delivered with
precision, highly effective. See Hustler Magazine v. Falwell, 485 U.S. 46, 54–55
(1988) (“Despite [its] sometimes caustic nature, [humor] . . . ha[s] played a
prominent role in public and political debate[, and] . . . . our political discourse
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would have been considerably poorer without [it].”). Political humor is
ubiquitous, especially during campaigns when candidates for public office become
the subject of widespread discussion. A joke about someone running for office
does not necessarily connote endorsement of, or opposition to, a particular
candidate. See Code of Conduct for United States Judges Canon 5; cf. In re
Charges of Judicial Misconduct, 404 F.3d 688, 698 (2d Cir. Jud. Council 2005)
(noting that an “ethics expert had opined that federal judge’s public statement that
President Reagan was a racist probably didn’t violate judicial ethical canons”
(internal quotation mark omitted)). So far as can be discerned from the complaint,
the joke was not racist, sexist or otherwise invidious; it was not reported in the
press or the subject of any significant public comment. Compare id. at 696.
Without more, there’s no basis for concluding that the judge’s conduct resulted in
“a substantial and widespread lowering of public confidence in the courts.”
Judicial-Conduct Rule 3(h)(2); see also In re Charges of Judicial Misconduct, 404
F.3d at 697–98. Because there’s no evidence of misconduct, this claim must be
dismissed. See 28 U.S.C. § 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).
DISMISSED.