FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
IN RE COMPLAINT No. 10-90016
OF JUDICIAL MISCONDUCT
ORDER
Filed February 2, 2011
ORDER
KOZINSKI, Chief Judge:
A pro se litigant charges that a judge made public com-
ments 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 sicken-
ing 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 try-
ing to investigate campaign finance controversies involving
[two individuals], both of whom eventually pled guilty to fel-
ony 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 judi-
cial 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, 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
2255
2256 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
4. Engaging in such law-related activities—including
speeches that comment on current events and legal
developments—is permitted not only because judges are citi-
zens, 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 pre-
cisely the kind of activity that the Code of Conduct encour-
ages. 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 miscon-
duct; 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 Maga-
zine v. Falwell, 485 U.S. 46, 54-55 (1988) (“Despite [its]
sometimes caustic nature, [humor] . . . ha[s] played a promi-
nent role in public and political debate[, and] . . . . our politi-
cal discourse would have been considerably poorer without
[it].”). Political humor is ubiquitous, especially during cam-
paigns 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 oppo-
sition 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
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 2257
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 substan-
tial 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.