Two recent events focusing the nation's attention on the role of our national judiciary have resulted in raised concerns that political speech critical of judges may not enjoy the protection of the First Amendment for very much longer. These events were:

1) the April 7-8 conference in Washington DC, titled: "Confronting the judicial war on faith" and,

2) the coerced death of the handicapped Florida woman Terri Schiavo, which many conservatives have denounced as an act of judicial homicide.

Associate Supreme Court Justice Sandra Day O'Connor stated in a speech delivered on April 7 in response to conservative criticism of the judiciary in connection with the Schiavo case: "I don't think the harsh rhetoric helps. I think it energizes people who are a little off base to take actions that maybe they wouldn't otherwise take."

On or about April 14, US Senator Charles Schumer, D-NY, along with several of his liberal colleagues, wrote an open letter to the President and several Republican leaders in Congress, echoing the sentiments of Justice O'Connor: "Many of these remarks [that are critical of judges made at the above-mentioned conference and in connection with the Terri Schaivo case], some by sitting members of Congress others by conservative leaders, might be misused to provide unstable individuals some justification for using violence against judges who don't rule in their favor."

Further, editorial headlines have appeared in recent weeks that bemoan political speech which is critical of judges as undermining the rule of law or endangering our national tradition of an independent judiciary.

Perhaps the most important question we can ask in connection with the statements of Justice O'Connor, Senator Schumer, and those with similar perspectives, is whether these statements forebode a growing intolerance of political speech as expressed by those who are not amicable to the manner in which federal judges perform their jobs?

As it turns out, not all members of the Supreme Court seem to be sympathetic to viewpoints that they don't share themselves. The following is from the 1992 Supreme Court decision in the case of Planned Parenthood v. Casey: "The Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," i.e., once the court has made its decision, the time for national debate has come to an end.

Some conservative commentators likewise have suggested that the Supreme Court's ruling upholding the McCain-Feingold Act is ominous being that the act serves to restrict political speech made in connection with election campaigns. Mark R. Levin in his Men in Black, writes: "The McCain-Feingold Act is obviously unconstitutional. The First Amendment specifically protects the right of the people to influence their representatives. . . . If this isn't clear enough, the Supreme Court ruled in 1976 in Buckley v. Valeo that giving money to support political campaigns was protected by the First Amendment." If the Supreme Court was willing to allow Congress to restrict political speech by upholding McCain-Feingold, who is to say that the court is going to stop there.

Is it possible that Sandra Day O'Connor's statement, quoted above, could serve as a basis for a future Supreme Court decision? I think that it is certainly possible, and here is a scenario that might fit such a circumstance:

A federal judge receives a threatening letter from someone who has read some inflammatory statements about judges posted at an online message board. The identity of the letter's author is determined, and he is soon arrested and eventually convicted. A subsequent investigation reveals the identities of some of the various individuals who had posted to that message board, and they are likewise arrested and convicted for inciting violence. The lawyer of one of the message posters sends an application for a writ of certiorari to the U.S. Supreme Court, and in response, the court agrees to hear the appeal. After hearing the case they rule as follows:

"Although the United States has long enjoyed a tradition of free speech, the right to free speech is not unlimited. There are cases where the exercise of unfettered political speech can have the result of inciting the base passions of violence-prone individuals with the possibility that injury or death can result. The present case is an excellent example of the dangers that federal judges can face when articles appear in the press pertaining to 'activist judges' or 'judicial activism.' Further, speech critical of judges encourages a disrespect for the rule of law and endangers America's long-standing tradition of an independent judiciary. Accordingly, it is with reluctance that this court rules that political speech that is denunciatory of federal judges individually, the federal judiciary generally, the federal court system, or the outcomes of cases ruled upon in federal courts, constitutes contempt of court, and that those who make such statements may be held accountable through contempt of court proceedings."

If the Supreme Court were to make a ruling similar to the hypothetical ruling presented above, what could Congress do to prevent critics of the judiciary from being arrested and imprisoned?

The solution would be to amend the laws governing contempt of court proceedings to prevent judges from using contempt of court powers for purposes other than upholding the integrity of the trial and discovery processes as they pertain to specific cases being tried before them.

Copyright by Andrew W. Pollock III

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