ACLU of Arkansas Supports Judge Facing Discipline for Criticizing Bush Administration

July 10, 2007 12:00 am

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ACLU Files Legal Statement on Behalf of Appellate Court Judge Wendell Griffen


LITTLE ROCK, AR The American Civil Liberties Union of Arkansas filed a letter today with the Arkansas Judicial Discipline and Disability Commission in support of State Appeals Court Judge Wendell Griffen, who is facing disciplinary action by the commission for making public statements that are critical of the Bush administration. The ACLU said that any discipline by the commission would violate the judge’s right to freedom of speech.

“The state cannot require judges to stand for election and then deprive them of the ability to comment on important issues of the day,” said Rita Sklar, Executive Director of the ACLU of Arkansas. “If a litigant thinks a judge’s views reveal a ground for recusal, then that is the way to handle questions of impartiality or the appearance of impartiality.But an electedjudge’s First Amendment rightsshould notbeextinguished. As a prominent African American and Baptist pastor in a small southern state, Judge Griffen is a community leader in a strong position to inform public debate on today’s social problems.”

The ACLU said that Judge Griffen’s speech is protected by the First Amendment because the judge’s comments were made on matters of great public concern or importance, which cuts to the core values of the First Amendment, and that these comments did not concern matters that are likely to come before him as a judge. Furthermore, the ACLU says in its letter that forbidding judges from speaking on matters of public concern would do nothing to ensure impartiality, but instead would conceal partiality that they might otherwise reveal in their remarks.

The ACLU cited the United States Supreme Court decision in Republican Party of Minnesota v. White, which held that Minnesota’s policy of barring judges from discussing political views was unconstitutional. That decision, written by Justice Antonin Scalia in 2002, identified two ways for handling real or perceived problems arising from judges speaking on public matters: disqualifying a judge from hearing a case because of a potential conflict of interest, or voting to remove a judge from office.

Judge Griffen faces discipline charges for the following incidents:

  • Criticizing President Bush’s nomination of John Roberts for Chief Justice of the United States Supreme Court in a September 8, 2005 speech at the National Baptist Convention USA in Atlanta (Judge Griffen is a pastor and spoke as an official of the convention);
  • Criticizing the Bush administration’s handling of Hurricane Katrina, Vice President Dick Cheney, the “Christian right,” Supreme Court Justice Clarence Thomas and the late President Ronald Reagan in a September 10, 2005 speech to the Arkansas Chapter of the NAACP;
  • Expressing “wholehearted support” for a minimum wage increase at a January 19, 2006 news conference on the steps of the Christ Episcopal Church in Little Rock as one of a group of state religious leaders;
  • Speaking out against the Iraq war and people who speak negatively of immigrants and gay and lesbian people in an October 19, 2006 speech at St. Paul’s Episcopal Church in Fayetteville, Arkansas;
  • Criticizing some of the Bush administration’s policies in an October 26, 2006 opinion piece in the Arkansas Times.

In its letter to the commission, the ACLU asks the commissioners to consider whether judges who have been supportive of governmental officials or their actions would be subject to the same discipline as Judge Griffen, who has been critical of government action. The ACLU also cites a 2004 Mississippi Supreme Court case, Mississippi Comm’n on Judicial Performance v. Wilkerson, holding that discipline of a Mississippi judge for public statements that “gays and lesbians should be put in some type of mental institute” violated the First Amendment rights of that judge.

The hearing before the commission, which the judge has asked to be open to the public, will be held on July 20, 2007.

The ACLU of Arkansas letter is online at:

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