The story began with a bold Virgin Island judge who refused. He refused to excuse a prosecutor for lying to him. Then he refused to acquiesce to a superior court who ordered him to do so.  Since retired. Judge Leon Kendall would not capitulate.

Judge Kendall, calling out the Supremes and Bethel both, recused himself, telling the dirty story in a  lengthy decision that concluded with his refusal to be party to the shame.  The Supreme Court did not find Judge Kendall’s refusal to obey their mandate at all humorous, and charged him with indirect criminal contempt.  A special master was appointed to try him on the charges, even though he had, by this time, retired from the bench.  The result was a recommendation by the special master that he was not guilty of contempt.

But the Virgin Island Supreme Court judges who granted mandamus disagreed with their special master, refused to recuse themselves as being accusers, judge and jury, and held Judge Kendall in criminal contempt anyway.

Kendall appealed to the Third Circuit Court of Appeals, which issued a remarkable decision.

What a judge says in an opinion is sufficiently expressive to trigger First Amendment review. The judge “inten[ds] to convey a particularized message” by explaining his legal analysis and conclusions, and there is a “great” likelihood that the opinion’s message would be understood by its audience—no less than if the judge had published the same analysis and commentary in a law review article.

Of the various concerns raised by Judge Kendall’s decision, which matters by dint of his holding office in the judicial branch of government and derives its value by this authority, his personal right to freedom of expression wasn’t high on the list.  In fact, it’s downright weird.  And yet, it’s the ledge to which the Court of Appeals clung.

[D]oes the government’s broader authority to discipline attorney speech about ongoing proceedings also permit the government to hold a judge in criminal contempt for his speech about ongoing proceedings? We answer that question with a resounding “No.” Criminal contempt is no mere disciplinary tool. It derives, like all crimes, from a government’s power as sovereign. Because the government’s use of the criminal-contempt power is the sine qua non of a sovereign act, the government has no greater authority to hold someone in criminal contempt for their speech about ongoing proceedings than it would to criminally punish any speech.

Had the issue before the circuit related to Judge Kendall’s extrajudicial speech, this would be the first place one would expect to go for solace.  After all, putting on robes is no more an abdication of First Amendment rights than putting on a pin-striped suit. Oh, wait. That analogy doesn’t work well at all. now does it. And indeed, judges have long been constrained from extrajudicial discussion of cases before them.  The one place they could safely speak their mind was in their judicial opinions.

And so they can, says the circuit, but not because of judicial immunity, discussed at some length in footnote 4 of the opinion which notes that immunity wasn’t raised (except by amicus ACLU) and even if it had been, it wouldn’t have prevailed as immunity is from civil liability, not for criminal.

While “a judge does not surrender First Amendment rights upon becoming a member of the judiciary,” the extension of this concept to judicial opinions strikes me as huge problem. Does this mean that a judge can engage in protected creative writing in his judicial opinions, such as expressing his hatred of defendants and indulging in rank speculation as to the character of an accused?  Not that Judge Kendall would do so, but he’s not the only judge in town.

The nature of a judicial opinion isn’t personal, but one predicated upon authority conferred upon a person by the sovereign.  The writing isn’t that of the individual, but of the official. The would seem to mean that a judge writes an opinion in his capacity as a member of the judiciary, and at least for the purpose of the decision, forsakes any personal freedom of speech right in his official capacity.

While judges have, on occasion, written decisions in verse or other creative format, proving conclusively why they became lawyers rather than poets, this isn’t about using a creative format, but conflating personal free speech rights with official writings.  As much as it saved a judge of conscience this time, it could just as well protect a pernicious judge next time. 

The Circuit went on to hold (internal citations omitted):

As a general matter, the First Amendment protects freedom of expression regardless of its content or viewpoint and “regardless of whether it is disruptive, offensive, vulgar or insulting.” Yet that rule is not absolute.

…And that means the speech must present a clear and present danger—not just a substantial likelihood—of obstructing the administration of justice. Consequently, the First Amendment protects a judge’s opinion from criminal punishment unless his speech poses a clear and present danger to the administration of justice.

What would constitute a clear and present danger to the administration of justice isn’t clear.  The court goes on to conclude that Kendall’s decision did not obstruct the administration of justice by interfering with the “pendency of some sort of judicial proceeding.”  But then, isn’t that a judge’s job, by definition, to oversee and control the judicial proceeding before him? 

When a judge adjourns a case, he “obstructs” the proceeding from the perspective of the party that wants to proceed.  When he refuses to adjourn, he “obstructs” from the perspective of the party seeking an adjournment.  That’s what judges do, decide things, and every decision impacts the pendency of some sort of judicial proceeding.

While the Third Circuit’s decision largely vindicates Judge Kendall, who is as deserving of the support as any judge around, the holding remains troubling, opening up the potential for some very disturbing creative mischief.  It just doesn’t make a whole lot of sense.  On the bright side, the positive outcome couldn’t have happened for a more deserving judge.