27 Just. Sys. J. 105 (2006)
Weighing Judicial Conduct against Free Speech: Mississippi Commission on Judicial Performance v. Wilkerson

handle is hein.journals/jusj27 and id is 131 raw text is: LEGAL NoTEs

Weighing Judicial Conduct Against Free Speech: Mississippi
Commission on Judicial Performance v. Wilkerson
n late March 2002, a Mississippi County justice named Connie Glen Wilkerson
wrote a letter to a local weekly newspaper, the George County Times, decrying
recent legislation in California that extended various legal protections to gay and les-
bian partners. In the letter, the judge wrote that based upon his Christian beliefs and
biblical principles not only was such legislation wrong, but also that homosexuals
belonged in mental institutions. The letter provided the judge's home address and
telephone number, but it was signed Bro. Connie G. Wilkerson and provided no
reference to his capacity as a judge.
A little more than a week later, a radio network reporter interviewed the judge
and asked him to discuss the letter. During the interview, the judge referred to homo-
sexuality as an illness and stated that he signed the letter as a red blooded
American, you know, Christian man. The Christian people need to take a stand as
well as anybody else, you know.
In response to the letter and interview, Lambda Legal, an organization that
works to establish and increase the rights of gays and lesbians, filed a complaint with
the Mississippi Commission on Judicial Performance alleging violations of the
Canons of Judicial Conduct. After a hearing, the commission charged the judge with
willful misconduct in office prejudicial to the administration of justice which brings
the office into disrepute, the breach of various canons because of the letter, and the
violations of these canons because of the interview.
The defense of Judge Wilkerson, and the sole issue before the Mississippi
Supreme Court, was whether the First Amendment protects the judge's letter and
statements. In a divided opinion, the court upheld the First Amendment right of
Judge Wilkerson to write such a letter and to make such statements. The court then
dismissed the complaint with prejudice. 876 So.2d 1006 (Miss., 2004).
The court noted that the Canons of Judicial Conduct are a necessary and criti-
cal part of the judicial system, but that these canons cannot infringe upon First
Amendment rights such as political speech and religious speech. The court acknowl-
edged the right of government to restrict speech, but there must be a very good rea-
son to do so, and depending upon the type of speech, the burden increases on the gov-
ernment to justify its restrictions.
The court then proceeded to analyze constitutionally permissible restrictions on
speech and the standards necessary to allow governmental restrictions, showing, for
example, that commercial speech restrictions require government to show a substan-
tial interest, which is less difficult to meet than the compelling state interest
required to justify restrictions on political/public-issue speech and on religious speech.
In the majority's own words, It is hardly debatable that the extension of certain

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