The First Amendment provides a sweeping command: “Congress shall make no law … abridging the freedom of speech.” On its face, the protection seems simple. In practice, it is anything but.
Over time, the United States Supreme Court has developed a series of “tests” to determine when government restrictions on speech are constitutional. Any lawyer—or law student who has taken Constitutional Law—knows these frameworks can be convoluted and varied. But as a shorthand, they can be understood this way: the more important the speech, the harder the government must work to justify restricting it.
When a speaker addresses a matter of public concern and the government seeks to burden that speech, courts typically apply heightened—or even strict—scrutiny. Under that level of review, government restrictions are more likely to fail. By contrast, when a court applies a more deferential standard, restrictions are far more likely to be upheld.
Courts have long wrestled with how these principles apply to judicial candidates. The Supreme Court has made clear that when judges are running for office, restrictions on campaign speech receive the most exacting review. But one question had remained largely unanswered: what constitutional test applies when the speech comes not from a candidate but from a sitting judge—one bound by the Code of Judicial Conduct and no longer engaged in an election?
That question implicates a competing governmental interest. The judiciary depends on public confidence—confidence not only in its actual impartiality, but in the appearance of impartiality. Judges are not legislators or advocates. Their authority rests on impartiality, independence, and public trust that they do not operate like political actors do.
That tension came to a head when former Philadelphia Judge Mark B. Cohen, a former state legislator, repeatedly posted overtly partisan political commentary on his publicly accessible Facebook page while serving on the bench. When the Code of Judicial Conduct was enforced against him, the constitutional question became unavoidable: were the sanctioning effects stemming from the Code compatible with the First Amendment?
In In re Cohen, the Pennsylvania Supreme Court stepped in to supply the answer.
Candidate Speech Is Different From Judicial Speech
The Court began by drawing a critical line. When judges are candidates for office, their speech sits at the core of First Amendment protection. Voters are entitled to hear a candidate’s views, and restrictions on that speech are subject to strict scrutiny, meaning the regulation of judicial candidate speech is likely to be unconstitutional.
Judge Cohen, however, was not a candidate. He was a sitting judge, not running for office and not even eligible for retention. That distinction proved important.
While judges do not surrender all free-speech rights upon taking the bench, the Court emphasized that they do accept meaningful limitations as part of the role. Judges are not politicians, even though they arrive at the bench through elections. Their legitimacy depends on public confidence that cases will be decided based on the law—not ideology or partisan allegiance.
The Standard the Court Adopted
Rejecting a strict-scrutiny test, the Court adopted a balancing test for restrictions on the speech of sitting judges outside the context of an election. Under this framework, there are two questions
- Does the judge’s speech address a matter of public concern?
- If so, does the judge’s interest in speaking outweigh the Commonwealth’s interest in preserving the independence, integrity, and impartiality of the judiciary?
Here, there was no dispute that Judge Cohen’s posts addressed matters of public concern. The case turned on the second question.
Why the Sanctions Were Upheld
What troubled the Court was not a single political comment, or even political views in isolation. It was the volume, tone, and one-sided nature of Judge Cohen’s posts combined with the fact that he spoke publicly while identifying himself as a judge.
Viewed as a whole, the Court concluded that a reasonable observer could see Judge Cohen not as a neutral jurist, but as a partisan. That perception, the Court explained, undermines the foundation on which judicial authority rests.
Courts do not command compliance through force or popularity. They rely on trust—trust that disputes will be resolved fairly and without political favoritism. When a sitting judge publicly aligns himself with a political party, that trust erodes.
Balancing those interests, the Court held that the Commonwealth’s obligation to protect the integrity and reputation of the judiciary outweighed Judge Cohen’s interest in continuing partisan political speech while on the bench.
Why This Case Matters
This decision resolves an important and open constitutional question in Pennsylvania. It clarifies that while judicial candidates receive the highest First Amendment protection, sitting judges are subject to a more deferential standard because of the governmental interest in protecting the integrity, independence, and public confidence in the judiciary.
The case is a reminder that when it comes to free speech, context matters and the speaker’s role matters. And when it comes to judges, while they don’t shed their First Amendment rights upon assuming their office, they are limited, when it comes to politics, when they put on the black robe.