Ninth Circuit Issues Split Decision on AZ Judicial Candidate Speech Code

Via Mike Sacks comes news of this new decision. Majority by Judge Paez; concurrence by Judge Berzon, and dissent by Judge Tallman.

The majority opinion begins:

A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech. The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process. Here we must decide whether several provisions in the Arizona Code of Judicial Conduct restricting judicial candidate speech run afoul of First Amendment protections. Because we are concerned with content-based restrictions on electioneering-related speech, those protections are at their apex. Arizona, like
every other state, has a compelling interest in the reality and appearance of an impartial judiciary, but speech restrictions must be narrowly tailored to serve that interest. We hold that several provisions of the Arizona Code of Judicial Conduct
unconstitutionally restrict the speech of non-judge candidates because the restrictions are not sufficiently narrowly tailored to survive strict scrutiny. Accordingly, we reverse the district court’s grant of summary judgment in favor of Defendants.

Mike asks the important question: “So…what happens when a sitting judge running for a judgeship complains his non-judge opponent has a campaign advantage?”

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