FAC Urges U.S. Supreme Court to Protect Core Political Speech

The First Amendment Coalition today filed a “friend of court” brief in the United States Supreme Court, urging that court to review and reverse a decision by the West Virginia Supreme Court of Appeals that punished a political candidate for speech that should have been protected under the First Amendment.

The West Virginia court imposed the draconian punishment of a two-year suspension on Judge-Elect Stephen O. Callaghan, ruling that a campaign flyer issued by Callaghan, then a candidate for a state-court judgeship, violated that state’s rules regulating speech by judges and judicial candidates.  In addition to the two-year suspension, the West Virginia court fined Callaghan $15,000.

The flyer at issue depicted a photo of Callaghan’s opponent, judge Gary Johnson, side by side with President Barack Obama, along with a statement that said, in part, “Gary Johnson & Barack Obama Party at the White House…While Nicholas County loses hundreds of jobs.”

The West Virginia court acknowledged that each of the statements in the flyer, when read in isolation, could be reasonably interpreted as being true–and would thus be protected under the First Amendment.  However, it held that the flyer as a whole was “substantially false,” and thus not protected.

As a result, the West Virginia court held, Callaghan could be punished — and harshly.  The Court levied a two-year suspension–in effect overturning the will of the electorate that chose Callaghan over his opponent.  Callaghan won the election by 227 votes, with 3,472 votes to Johnson’s 3,245.

“The West Virginia decision nullified the choice that state’s voters made,” said FAC executive director David Snyder.  “If upheld, this ruling could have a devastating impact on the ability of political candidates to engage in the sort of free-wheeling speech that the Supreme Court has time and again said is protected, and is essential to the health of our democracy.”

FAC’s brief shows that the U.S. Supreme Court has repeatedly held, over many decades, that speech about politics — and in particular speech by candidates for political office — is virtually sacrosanct, protected by the First Amendment from punishment by the government.   Yet courts in many states and federal circuits have come to widely different conclusions about what sorts of speech, and in particular speech by candidates for judicial office, is protected by the Constitution.

Accordingly, FAC’s brief argues, the West Virginia court’s decision presents an ideal opportunity for the high court to clarify that speech by judicial candidates in the context of a political campaign should be afforded the highest level of First Amendment protection.

Both the petition for review and FAC’s amicus brief in support of that petition can be read below.

Bruce P. Merenstein, Samuel W. Silver and Rachel A.H. Horton of the law firm Schnader Harrison Segal & Lewis prepared FAC’s amicus brief.

The case is Callaghan v. West Virginia Judicial Investigation Commission, Case No. 17-54.


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