Judicial Candidates’ Right to Lie

Nat Stern

It is virtually axiomatic that political candidates can lie with legal impunity. At the same time, the scheme of separation of powers and intuitions about justice point to a higher standard for those seeking election to judicial office. Accordingly, laws in twenty-two states contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates. The Supreme Court’s decision in Republican Party of Minnesota v. White, however, casts doubt on whether states may regulate judicial candidates’ speech. While striking down only a single provision of Minnesota’s restrictions on judicial campaign speech, White evoked much speculation about the potential invalidation of a broader swathe of such codes. Notwithstanding this ominous outlook, though, the misrepresent clause was generally thought to be relatively secure from First Amendment challenge.

Contrary to such sanguine assessments, this Article argues that states’ attempts to bar falsehoods by judicial candidates stand on tenuous footing and are probably unconstitutional. Of course, this interpretation does not imply moral endorsement of the dishonesty that some who aspire to judicial office may practice. Indeed, it does not even assume the wisdom of selecting judges through popular vote; cogent arguments have been offered against this peculiarly American institution. Rather, the thesis presented here reflects the extent to which the Court has shielded false expression and imported stringent protection of political speech into the judicial setting.