Frank LoMonte Comments on the Legality of Gag Order on Appointed State Judges
Frank LoMonte, University of Florida College of Journalism and Communications Brechner Center for Freedom of Information director, is quoted in “Magistrate Fired Over Comments to Times” published in the Alexandria (Virginia) Times on Oct. 21.
In the article, Magistrate Elizabeth Fuller, who filed a complaint that led to the bondsman in a homicide case losing his license, has been fired for comments she made to the newspaper. Fuller was terminated for violating Canon 3, Article B6, which states that “a magistrate shall abstain from public comment about a pending, impending or concluded proceeding in any court or magistrate’s office.”
According to LoMonte, “In the courtroom, there exists an ongoing debate of whether to interpret a law broadly or narrowly. This particular canon might work if interpreted narrowly.”
“If it’s interpreted to mean, ‘Don’t give away confidential information that you learn because you are judging a case,’ then it’s probably a perfectly legitimate use of the canon,” LoMonte said. “But to say that judges are forbidden from speaking to the media about anything they can learn in the course of their employment would be an overly broad interpretation. … If it is understood to include even proceedings that are concluded, then that seems indefensibly broad.”
LoMonte pointed out that the First Amendment clearly protects the rights of public employees to discuss their work, stressing that one does not inherently sign away all rights to talk about their work upon assuming a government position. He said that a literal interpretation of the canon “raises real constitutional red flags.”
“I think there’s a pretty strong argument that that canon would be unconstitutionally broad if it is understood to include comments made about cases you’re not assigned to,” he said. “I think they can probably enforce it as to a pending case a judge is presiding over … but I don’t think it can be broadly applied to anything and everything you learn in the course of your job without crossing the line of the First Amendment.”