Thursday, August 28, 2014

Is "dignity" a proper standard for judicial office campaigns?

The Legal Profession blog has a story here.  In short, the South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that a judicial candidate can advertise in a movie theater as long as it is done "with dignity," a reference that apparently would apply to both the ad and the movie itself.  I posted a comment to the story and got some replies.  Go here to check it out.

My comment is that I am always troubled by the use of "dignity" in any decision judging speech by attorneys. It seems to me the use of "dignity" as a standard goes against the principle that the First Amendment stands to protect speakers against the state imposing sanctions based on the fact that some might find the speech offensive.  Granted, that principle was significantly weakened by the US Supreme Court's decision in Florida Bar v. Went for it, but the other cases in the long line of attorney speech cases still stand, including Zauderer, where the court said that regulating the dignity of the illustration of the IUD was not a good enough state interest.