Real Judges Shouldn't Have Blogs

It calls into question their impartiality.

That's the teaching of Stengle v. Office of Dispute Resolution, No. 06-cv-1913 (M.D. Pa. April 27, 2009), a case involving a blogger whose passionate writing about special education issues cost her her job as a hearing officer for disputes arising within Pennsylvania's special education system.

Turning back the plaintiff's First Amendment challenge to her firing, the court said that even if her blogging was not an administrative headache (state officials were dealing with real and threatened recusal motions that questioned the plaintiff's impartiality), and even if the plaintiff was in fact impartial regarding the special education issues she was called upon to decide, these facts would be irrelevant for First Amendment purposes.

The First Amendment permits the state to restrict the plaintiff's speech if it has "some potential" to affect the state's operations, the court said.

Similarly, the court said, even if the plaintiff was able to "firewall" her blogging so that it did not interfere with her duty to impartially decide special education disputes, "the public perception was that such a feat was impossible." This is a case in which the public perception about the plaintiff became reality, it said. "No matter how many reassurances she uttered, in the minds of the public and bar there arose a fundamental conflict between the Plaintiff's blogging activities and her duties as a hearing officer that could not be resolved."

In a footnote, the court said that same analysis would apply to blogging by higher-ranking members of the judiciary as well:

Consider if a Pennsylvania Supreme Court Justice created a blog to discuss important legal issues of the day, some of which were involved in cases before the Court. Problems similar to those in the case sub judice would arise in this instance. Lawyers practicing in front of the Supreme Court would be obligated to read the Justice’s blog and identify any biases that would materially affect his ability to remain impartial in a particular case. If one was located, the lawyer might properly move for recusal of that Justice. If such a sequence occurred with regularity, not only would the efficiency of the Pennsylvania Supreme Court be adversely effected, but the prudence of retaining the Justice would also be called into question.

Does this mean that lawyers practicing in the Seventh Circuit are obligated to read the Becker-Posner blog?

Comments

[Shii]

Does the "First Amendment" ban judges from writing books as well?