Note: Removing the Judicial Gag Rule: A Proposal for Changing Judicial Speech Regulations to Encourage Public Discussion of Active Cases

By Michael D. Schoepf. Full text here.

The judiciary may be the oft-forgotten third-branch of government, but judges still face ample criticism from the media and the public just like their colleagues in the legislative and executive branches. Unlike their colleagues however, judges cannot respond with glossy public relations campaigns because of judicial rules that severely restrict what judges can say about active cases. Hamstrung by the rules and unable to defend themselves in the media, judges have increasingly turned to a more familiar arena filing defamation suits against their critics. Although courtrooms should be open to everyone, when judges move from the bench to the plaintiff’s table it creates the appearance of bias and opens the door to further criticism of the judiciary.

This Note proposes that judges take a more active role in public affairs, especially public discussions about the judiciary and the cases over which it presides. To implement the change, rules governing judicial speech should be reworked with an eye toward encouraging all judicial speech that does not directly impact the fairness of court proceedings. Judges are uniquely situated to explain legal procedures and the reasoning behind legal decisions. This Note calls for judicial rules to be amended so that they are able to do so, not just in formal opinions, but also in less formal ways like in letters to the editor and community meetings.