Judicial Campaign Discipline Not Governed By Defamation Law Standard

The Ohio Supreme Court affirmed a public reprimand of a judicial candidate.

The court rejected application of the New York Times v. Sullivan standard

We disagree, however, with Falter’s assertion that Jud.Cond.R. 4.3(A) incorporates the subjective actual-malice definition employed in public-figure defamation cases. Although the language of Jud.Cond.R. 4.3(A) resembles the actual-malice standard established in New York Times Co. v. Sullivan, id. at 280 (defining “actual malice” as acting “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not”), there are important differences between the interests served by defamation law and those served by ethical rules for judges and judicial candidates. As the Supreme Court of Michigan concluded, the subjective actual-malice standard is inappropriate in this context and adopting it “ ‘would immunize accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth.’ ” In re Chmura, 461 Mich. 517, 543, 608 N.W.2d 31 (2000), quoting In re Holtzman, 78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d 30 (1991). Instead, the determination whether a judicial candidate recklessly disregarded the truth or falsity of campaign material is an objective one.

Reasoning

the limits on a judicial candidate’s speech are not necessarily coextensive with the limits of the First Amendment. The United States Supreme Court has recognized that “[s]tates may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 446, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015); see also Disciplinary Counsel v. Tamburrino, 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 17 (noting that First Amendment principles in other contexts do not apply “to disciplinary sanctions for knowingly false or recklessly false statements by judicial candidates”); O’Toole at ¶ 22-29.

Thus, Ohio’s interest in preserving public confidence in the integrity of its judiciary supports applying a standard in judicial-candidate discipline proceedings different from that applicable in defamation cases. And an objective standard for determining violations of Jud.Cond.R. 4.3(A) strikes a balance between a judicial candidate’s First Amendment rights and the state’s compelling interests. Falter’s argument in this case fails to account for the fact that “judicial elections fundamentally alter the constitutional calculus,” Platt v. Bd. of Commrs. on Grievances and Discipline of the Ohio Supreme Court, 894 F.3d 235, 267 (6th Cir.2018). Therefore, whether Falter subjectively had serious doubts about the truth of her allegations is not the sole determinative factor in analyzing whether she acted with the requisite mens rea. We accordingly overrule this objection.

As to falsity

Falter admitted that she had personally typed the February 2020 campaign letter stating that Hartman had “moved to Hamilton County 3 years ago to take a judicial appointment from Governor John Kasich in March, 2017.” (Underlining sic.) She also admitted that prior to sending the letter, she had not researched Hartman’s voting history or his property ownership. And she admitted that her statements about Hartman turned out to be untrue.

As her defense, Falter claimed that the information in her letter came from her campaign consultants and that she expected the consultants to ensure the accuracy of her campaign messages. But Falter also testified that she did not know how her consultants allegedly knew this information about Hartman and that she never specifically asked them to confirm the accuracy of the allegations or to research his voting history. And one of Falter’s campaign consultants testified that the letter was “technically one of [Falter’s] projects;” that at the time the letter was being prepared, he did not know when Hartman had moved to Hamilton County; that he did not know where some of the information in the letter came from; and that although there had been discussions about the validity of Hartman’s residency, there was “never really a specific time given nor did [the consultants] actually do the full research on it.” The campaign consultant also testified that he had reviewed Falter’s letter for “grammatical errors,” and he explained that “when a client does something on their own, I trust that they have good knowledge of what they’re putting in there,” especially when his consulting firm had no part in creating the campaign material.

Recklessness

the panel concluded that Falter “chose to believe what was essentially courthouse and party-insider gossip or rumors without making any effort to check the truthfulness of the allegation.” The panel also found that Falter’s contract with her consultants did not expressly require them to do “fact checking” of her campaign materials. Because Falter’s statements were the type that must be verified and because she failed to take any action to do so, the panel concluded that she acted with reckless disregard of whether or not the statements were false.

The panel’s proposed sanction

we commend Falter for issuing a retraction letter shortly after Hartman’s campaign notified her that the letter was inaccurate. But that fact does not mean that her public reprimand should be vacated. Nor has she established that the panel’s weighing of the other aggravating or mitigating factors should have any impact on her sanction.

And social media publicity does not supplant the need for sanction

Falter next argues that her disciplinary sanction should be vacated because she “has been sufficiently reprimanded in public.” She claims that although she quickly retracted her campaign letter, she received negative media attention, which culminated in her loss in the primary election. With her objections, Falter submitted screenshots of social-media posts criticizing her for the false campaign letter. She argues that in light of the damage to her reputation, the commission’s public reprimand was excessive.

…No exceptional circumstances exist here that would allow Falter to introduce evidence for the first time in her objections. Nor has she otherwise established why alleged critical comments in the media or on social media could somehow substitute for a public reprimand from this court.

Justice Stewart

The per curiam opinion’s insistence that “[n]egligently made false statements or negligent misstatements are not prohibited by” Jud.Cond.R. 4.3(A), majority opinion at ¶ 18, cannot therefore be reconciled with the fact that this court has adopted and applied an objective reasonableness test.

(Mike Frisch)