(concurring in part, dissenting in part) — I concur in the majority's result and in much of its analysis. I agree that Judge Kaiser violated CJC Canon 7(A)(2)'s prohibition on statements of party affiliations, and CJC Canon 7(B)(l)(c)'s prohibition on pledges or promises of partiality. I also agree with the majority's conclusion that Judge Kaiser violated CJC Canons 1, 2(A) and 7(B)(1)(a) by suggesting that certain attorneys were attempting to buy favorable treatment for their clients and by suggesting that Mr. Roarty, if elected, would not fairly and impartially apply the law to DWI defendants. I also agree with the conclusion that such statements are not constitutionally protected.
*292However, I strongly disagree with the conclusion that in order to find a violation of CJC Canon 7(B)(l)(d)'s prohibition on "false, misleading, or deceptive campaign advertising" a judicial candidate must have actual subjective knowledge of the falsity of his statements.
The majority opinion is confusing on the issue of whether it finds Judge Kaiser's statements regarding DWI attorneys-supporters to be false, but constitutionally protected, or not false at all. On page 283 the majority states:
Judge Kaiser's statements that the majority of his opponent's support came from "drunk" driving defense attorneys" violate the strict terms of Canon 7(B)(l)(d)'s prohibition on "false, misleading, or deceptive campaign advertising". However, because the statements fall within the bounds of constitutionally protected speech we find no violation.
On page 284 the majority states:
[T]he Commission concluded that the statements concerning Roarty's funding were false and therefore violated Canon 7(B)(1)(d), which prohibits "false, misleading, or deceptive campaign advertising." While we are inclined to agree with this conclusion, we must bear in mind that the Canons are subject to constitutional restraints. Before we can decide whether these false statements violate Canon 7, we must carefully determine the constitutional limits of the Canon's application.
These statements indicate the majority recognizes that these statements were indeed false. However, at page 291 the majority states:
Kaiser's statements regarding the contributions of DWI defense attorneys to his opponent were not false within the meaning of the Canons and are constitutionally protected in any event.
If in fact the majority recognizes that the statements were false, then Justice Andersen's concurrence should be dispositive of this entire controversy. If the statements are false, then they are unprotected and the constitutional discussion is entirely superfluous and improper. I agree with Justice Andersen that the statements were false. The *293majority endorsement of Judge Kaiser's "methodology" gives permission to candidates in future campaigns to engage in any kind of slight "investigation" in order to support untrue allegations against an opponent. However, if the majority's point is that Judge Kaiser must have been absolutely and subjectively aware of the falsity of his statements before his speech can be sanctioned, then the majority is requiring an "actual malice" standard be applied in a judicial discipline context.
Judge Kaiser issued a number of statements in campaign literature that stated, "Judge Kaiser's opponent, Will Roarty, receives the majority of his financial contributions from drunk driving defense attorneys." As the majority acknowledges, the methodology used to support this allegation consisted of phone calls to Roarty supporters who were asked "if they would represent a person who had received a DWI." If any attorney answered in the affirmative, Judge Kaiser labeled such an attorney a "drunk driving defense attorney". This kind of blatant construction of data cannot be countenanced in a judicial campaign. Surely any lawyer who might accept one dissolution case or one criminal case could not accurately be labeled a "divorce attorney" or a "criminal attorney". The majority criticizes the Commission's methodology for determining which attorneys can be labeled "DWI defense attorneys". The majority then states that an attorney who derived 1 percent of his income from DWI cases or whose law partners handled DWI cases "could reasonably be characterized as DWI attorneys." Majority opinion, at 286. I find the majority's conclusion that Judge Kaiser used an acceptable method for verifying his allegations to be unconvincing.
Judge Kaiser clearly implied that because Will Roarty was supported by attorneys who represented DWI clients, if elected, Roarty would not fairly and impartially adjudicate the law in DWI prosecutions. The labeling of a judicial candidate's supporters by referring to the particular type of clients they represent, and suggesting that such support indicates the candidate will be unfair in certain types of *294judicial cases, is deceptive and misleading advertising in violation of Canon 7(B)(1)(d). I would hold such advertising, with or without a statistical base, is not protected speech.
However, my most serious disagreement with the majority opinion is its conclusion that statements by judicial candidates are protected unless it can be proved the candidate had actual knowledge of their falsity at the time the statements were made. This is an even higher standard than the actual malice requirement of New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964). Such a standard should not be utilized in attorney or judicial discipline proceedings.
In the context of a judicial discipline case, this court has held that false statements are not entitled to constitutional protection. In re Donohoe, 90 Wn.2d 173, 580 P.2d 1093 (1978). The majority would limit In re Donohoe, supra, to the proposition that only statements which are actually known to be false can be the subject of judicial sanction. The majority states, at page 285, "Donohoe necessarily had actual knowledge of the falsity of her statements. Her statements lost their constitutional shield because of this knowledge." The majority is incorrectly limiting the holding of In re Donohoe, supra. In re Donohoe, supra, explained that " [ajppellant's false statements alone are enough to support her reprimand for her campaign conduct. Consequently, we need not decide whether statements made by her found to be simply misleading are constitutionally protected speech." (Italics mine.) In re Donohoe, supra at 182. Surely In re Donohoe, supra, did not require actual knowledge of falsity in order to discipline a judicial candidate for statements that violate the Canons. In re Donohoe, supra, in fact stated:
We feel that the minimum dignity appropriate to a judicial office is that the lawyer, judge or judicial candidate abide by the Code of Professional Responsibility.
We are dealing with a delicate balancing of rights involving the public, the incumbent judge, and the lawyer *295candidate for judicial office. On the one hand the courts, as an institution, are entitled to the respect due to the office because the acceptance of judicial decisions ultimately depends upon the citizens' belief in the integrity and impartiality of the courts. On the other hand, the members of the judiciary are subject to legitimate and accurate criticism and evaluation. A candidate for judicial office has a right to challenge an incumbent judge's ability, decisions and judicial conduct, but it must be done fairly, accurately and upon facts, not false representations. The voters are entitled to a fair statement and evaluation of the qualifications of the candidates.
(Some italics mine.) In re Donohoe, supra at 180. Judge Kaiser's criticism was neither legitimate nor accurate and this should have been obvious when the statements were made.
The "actual knowledge of falsity" requirement being imposed by the majority is in reality the first prong of the New York Times malice requirement. The New York Times malice requirement is an appropriate standard to be applied when we consciously choose to err on the side of allowing falsehoods to be uttered in the interest of freedom of the press. However, in the context of a judicial campaign, there are other competing societal concerns which override the need for unrestrained freedom of speech. The policy of leeway for untruthfulness or misrepresentation that has been allowed in the defamation context has little force in a disciplinary proceeding. The State has a compelling interest in maintaining the independence of the judiciary and in furthering public confidence in the honesty, impartiality, and integrity of judges. If the public ceases to believe that most judges are moral and fair minded, the entire system of justice flounders.
The argument that the malice standard used in libel cases should be applied to disciplinary cases was recently addressed by the Kansas Supreme Court in In re Johnson, 240 Kan. 334, 729 P.2d 1175 (1986). The Johnson court concluded, "[t]he New York Times standard of 'actual *296malice' in a civil action for libel is not appropriate in a proceeding to discipline an attorney". The court cited with approval two reasons why the malice argument is untenable:
First, the New York Times case and the supporting line of cases were clearly inapplicable to a disciplinary proceeding because those cases were defamatory actions dealing with the constitutional privilege afforded the press. Nelson, an individual, had no such constitutional right. Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952). Second, it is widely recognized that neither civil nor criminal liability is necessary to maintain an action in a disciplinary proceeding.
In re Johnson, 729 P.2d at 1181 (citing State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972)).
The fact that we have elected judges should not allow judicial candidates to engage in unethical conduct.
Misconduct by a Judge or judicial candidate cannot be shielded from scrutiny merely because it takes place in the political forum. The First Amendment implications, if any there be, are far outweighed by the State's interest in the integrity of its judiciary.
Nicholson v. State Comm'n on Judicial Conduct, 50 N.Y. 2d 597, 608, 409 N.E.2d 818, 431 N.Y.S.2d 340 (1980).
The majority cites to no authority to support the proposition that actual knowledge of the falsity of a statement is necessary before an attorney, a judge, or a judicial candidate can be subjected to disciplinary action. Neither free speech rights nor the right to engage in political activity should serve as a shield for activity which is destructive of the public trust in the judiciary. Freedom of speech is not without limitations. Other jurisdictions have recognized that, unlike a layman, a bar member's right to free speech may be regulated. In re Johnson, supra; State ex rel. Nebraska State Bar Ass'n v. Michaelis, 210 Neb. 545, 316 N.W.2d 46 (1982); In re Riley, 142 Ariz. 604, 691 P.2d 695 (1984); Nicholson v. State Comm'n on Judicial Conduct, supra; In re Woodward, 300 S.W.2d 385 (Mo. 1957).
*297A layman may, perhaps, pursue his theories of free speech or political activities until he runs afoul of the penalties of libel or slander, or into some infraction of our statutory law. A member of the bar can, and will, be stopped at the point where he infringes our Canon of Ethics; and if he wishes to remain a member of the bar he will conduct himself in accordance therewith.
In re Woodward, supra at 393-94.
Canon 7(B)(1)(d) of the Code of Judicial Conduct provides:
A candidate, including an incumbent judge, for a judicial office . . . should not permit false, misleading, or deceptive campaign advertising to be published or broadcast in behalf of his candidacy.
I would hold that Canon 7 has been violated if a judge or a judicial candidate knew, or with reasonable investigation should have known, of the falsity of a statement which impugns the honesty or integrity of another candidate. Free speech is of course not an absolute right, but one in which a balancing of rights is often necessary.
The interests of the legal system deserve priority over the ambitions of individual candidates. It is not unreasonable to require that an individual who is seeking to be made one of the guardians of the legal system act so as to protect that system in the means he or she employs in seeking election.
Comment, Ethical Conduct in a Judicial Campaign: Is Campaigning an Ethical Activity?, 57 Wash. L. Rev. 119, 137 (1981). In the context of a judicial campaign the public's rights both to learn the truth and to not be subjected to false accusations involving the honesty, integrity and independence of a judicial candidate must be balanced against a judicial candidate's right to free speech. I do not think it too great a burden on one seeking judicial office to have the duty not only to make a reasonable investigation into a charge to be made against another judicial candidate, but also to refrain from making deceptive statements about the candidate because of the candidate's or his supporter's clientele.
*298I agree with the majority that Judge Kaiser should be censured. But I would also serve notice that in future judicial contests political activity as was practiced here may very well warrant a more severe sanction.
Utter and Brachtenbach, JJ., concur with Pearson, C.J.