by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
Judges in North Carolina are prohibited by tradition and regulations from speaking on issues that are likely to come before the court or making statements disparaging the judicial system.
That may be about to change.
North Carolina Supreme Court Justice Anita Earls has filed a lawsuit in federal court, claiming that the state’s Judicial Standards Commission (JSC) is restricting her First Amendment right to free speech (paragraph 90):
The actions of the Commission as alleged above violate the freedom of speech clause of the First Amendment of the United Stated [sic] Constitution by purporting to regulate — through the investigative powers of the Commission and the sanctions against judges provided for in the Code — speech at the absolute core of the First Amendment, namely protected political speech[.]
The commission investigated Earls earlier this year on public statements she made that were allegedly on “matters being currently deliberated in conference by the Supreme Court” (paragraph 10). The commission panel in charge of investigating such matters voted to dismiss the complaint in May. During that process, commission counsel reminded Earls of the need to follow Canon 2(A) of the North Carolina Code of Judicial Conduct, which states (in part):
A judge should respect and comply with the law and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
The JSC reopened the investigation into Earls after an interview with her was published in the June 2023 issue of Law360 on the status of women and racial minorities in the court system. A JSC notice to Earls stated that she appeared to “allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision making” (paragraph 40). If true, it could be construed as a violation of Canon 2(A).
Earls made no claim of racial or sexual discrimination; her lawsuit is based purely on a free speech claim.
The case is before US District Judge William Osteen of the Middle District of North Carolina. Earls is seeking to have Osteen declare that JSC investigations into her public statements and interviews are unconstitutional, enjoin any further such investigations into her “statements on matters of public concern,” and force the JSC to cover her attorney’s fees.
Seeing headlines such as “Only Black woman on North Carolina’s Supreme Court gets support for race and gender comments,” “Republicans Can’t Stop Trying to Kick Black People Out of Elected Office,” and “‘Taking us back to Jim Crow’: Black lawyers say NC Supreme Court investigation motivated by racism,” you could be forgiven for believing that Earls’ lawsuit is at least partially about claims of racial or sexual discrimination against her.
It is about neither.
Earls made no claim of racial or sexual discrimination in the lawsuit. She noted her sex and race only once in the complaint, stating that she was the “only non-white female serving on the North Carolina Supreme Court.” The complaint also quoted Law360’s description of her as “a Black female Democrat on a state Supreme Court that is largely white, male and, after last year’s elections, Republican.” Both statements were used to establish context for the Law360 interview, not to support a claim of racial or sexual discrimination against the JSC.
Instead, the lawsuit is based purely on a free speech claim. Earls claimed that the investigations “chilled my free-speech rights” by causing her to turn down speaking and writing invitations for fear that her statements would lead to further investigations.
Earls is taking an approach similar to Pres. Donald Trump with regard to free speech related to the courts, seeking to maximize her First Amendment rights against rules designed to safeguard the judicial process. Just as U.S. District Judge Tanya Chutkan said Trump’s claim to free speech “is subject to the rules” of the court, there are things that judges cannot say without jeopardizing due process or otherwise damaging the integrity of the court.
For example, the state Supreme Court reprimanded Durham Judge James T. Hill in part for “exhibiting a failure to remain patient, dignified, and courteous to the parties appearing before him” after telling parents in a child custody case that they “act like such idiots.” The JSC similarly reprimanded District Court Judge Carlton Terry, Jr. for ex parte (with only one side in a case) communications in 2009.
I expect the JSC will fully resist Earls’ claim that her speech should not be restricted by judicial rules designed to promote public confidence in the judiciary.
Public opinion seems to be squarely on Earls’ side in this conflict.
While those on the left predictably support her (as seen above), she is also getting support from the right for her lawsuit. Those supporters include the former spokesman for Republican NC Senate leader Phil Berger, the executive director for American Majority, and my colleague Mitch Kokai at the John Locke Foundation.
Her case is not a complete slam dunk, however. Judges at all levels of government face restrictions on what they can do or say. For example, Canon 5 of the Code of Conduct for United States Judges prohibits federal judges from a host of activities that could be construed as political. That includes making “speeches for a political organization or candidate.” To remove any wiggle room, the canon further states that judges “should not engage in any other political activity.” Those restrictions, both in federal and North Carolina judicial canon, are in place to remove undue political influence on the bench or the appearance of such influence. They are crucial for justice and public confidence in the judicial system.
Another consideration, however, has surprisingly not been brought up, especially since Earls is an elected justice: the right of the people of North Carolina to hear her opinions on matters of public interest.
Although not explicitly stated in the First Amendment, the right to hear is implied by, and inexorably linked to, the right to speak. It is a linkage well-established in American jurisprudence. Justice Hugo Black wrote in Martin v. City of Struthers (1943), “This freedom [of speech] necessarily protects the right to receive it.” By 1969, Justice Thurgood Marshall stated in Stanley v. Georgia, “It is now well established that the Constitution protects the right to receive information and ideas.”
Members of the public should be able to hear Justice Earls’ views on the workings of the court, the status of racial minorities and women in the judicial system, or any other pertinent topic, aside from things such as current cases or sensitive information. Doing so will help us become better informed about our judiciary. That principle applies, obviously, to other justices and judges as well.
Just as importantly, allowing Earls to speak on matters of public concern gives members of the public information about her. It better enables them to understand her views and, when she is up for reelection in 2026, whether they want her to continue serving on the North Carolina Supreme Court.
(That need for more public information about judicial candidates is also why partisan judicial elections are good and why judges should not have to recuse themselves from cases because of their general statements on issues of public concern.)
The JSC adjusted the judicial speech code after the US Supreme Court struck down restrictions on judicial candidates in Republican Party of Minnesota v. White (2002). It should now further lift restrictions on what judges can say to the public, either voluntarily or under court order. If all else fails, a legislative solution may be needed.
One way or another, the people of North Carolina have a right to hear what Justice Earls has to say.