Justice Earls: Unjustly Silenced

By Caleb Karnes, Vol. 22 Staff Writer

On August 15, 2023, the North Carolina Judicial Standards Commission (JSC) reopened its investigation into North Carolina Supreme Court Justice, Anita Earls, following her interview with Law360. This investigation focused on whether her comments on racial bias in the justice system violated the Code of Judicial Conduct (the Code). It should be noted that Earls is the only person of color and one of only two Democrats on the Court.

On August 29, Earls filed a lawsuit in federal court against the JSC for free speech violations. She viewed the JSC’s investigation as “stifling or even chilling free speech.” This means that the JSC’s investigation prevented her from expressing herself freely as guaranteed by the First Amendment. Today, Earls dropped her lawsuit after the JSC ended its investigation. This outcome is welcome news for defenders of the First Amendment, but the investigation itself and the power the Commission holds over state judges is still a matter of First Amendment concern.

The JSC and its Rules

      Established in 1973, the JSC investigates state judges for possible ethics violations. The Commission is composed of fourteen members: six members are judges chosen by Republican Chief Justice Newby; four members are attorneys chosen by the State Bar Council; two members are citizens chosen by Democratic Governor Cooper; and two are citizens chosen by the legislature.

The JSC operates under the Rules of the Judicial Standards Commission. Procedurally, investigations are opened in response to written complaints or by the Commission’s own motion. However, regarding Justice Earls, the JSC reopened an investigation which it previously voted to close: a process not detailed in the Rules. We can only guess as to whether a formal complaint was issued or whether members of the JSC viewed this as an opportunity to punish where it failed to punish before. In any event, this investigation threatened the free speech of a prominent public figure.

The Code of Ethics and Earl’s Comments

Like the Rules, the Code that Earls was accused of violating was formulated by the North Carolina Supreme Court. Unlike the Rules, the Code is well detailed concerning judicial obligations. Earls was accused of violating Canon 2A of the Code which states, “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.” Yet, there are other canons which the JSC neglected to mention: Canon 1 stresses the importance of an independent judiciary; Canon 4 states that a judge may engage in activities concerning the administration of justice; and Canon 7 provides a safe harbor for judges to engage in political activity. Together, these canons provide substantial support for Earls’ comments and speak volumes about the dangers investigations such as this pose to an independent judiciary.

Earl’s comments were published in Law360, a journal targeted towards legal professionals. In this article, Earls offered her opinion on why there is a lack of racial diversity in the judiciary. She claimed that judges’ implicit racial bias leads to less minorities on the bench. Her comments were made in response to an article written in part by the North Carolina Solicitor General who studied the small number of minorities on the Supreme Court. Earls went on to make comments specifically about the Supreme Court, but these comments did not concern any legal matters before it. Rather, she spoke on the Court’s decisions to discontinue diversity committees and the conservative ideology that permeates most of the Court. Earls also spoke about the challenges she faced running for her seat as well as the financial barriers for those that wish to run for office.

Altogether, these comments do not appear to violate any Canon of the Code. Earls was speaking on issues of public concern that are not confidential. Had she offered comments on an ongoing case or claimed that her colleagues were racist, then she would be in violation. For a state judge to acknowledge that racial bias exists in the court system is not unethical, it is acknowledging the truth. What is unethical is for an agent of the state to use its authority to silence an elected woman of color because she wants to address this bias.

The First Amendment

      For there to be a First Amendment violation, there must be action taken by the state to suppress a person’s First Amendment rights. Here, the JSC is a body of people chosen by the state—their acts are state action. Members of the JSC are not democratically elected, but they exert immense power over the courts.

The JSC is an agent of the state: it is composed of members chosen by every branch of government. With the authority granted by the legislature, the JSC investigates state judges; and with the approval of the Supreme Court, judges may be reprimanded, suspended, or impeached. Additionally, the NC Senate has proposed changes to the Commission’s structure whereby the legislature—which is controlled by the GOP—would substitute four judges for the four attorneys currently appointed. In effect, the JSC stands to become a conservative agent that can censor liberal judges.

Already, we can see the chilling effect on speech that comes with partisan oversight. In response to this investigation, Justice Earls rejected opportunities to speak about current issues including the racial and gender composition of state courts as well as legal representation for low-income defendants. She opted out of opportunities to speak publicly on important issues or to contribute to legal publications because she feared that her public comments would be used as ammunition against her by the JSC.

Justice Earls did not forfeit her freedom of speech when she assumed the bench. She is entitled to the same First Amendment protections as other Americans. Her voice was silenced because she had a large platform which she used to illuminate public issues like prejudice. Fortunately, the JSC ended its investigation, but we must be honest and say that this process was anything but democratic or just. The JSC’s investigation was nothing more than one party using the power of the state to silence the opposition.

Conclusion

The preamble to the Code states, “An independent and honorable judiciary is indispensable to justice in our society.” This independence rests in part on the ability of judges like Earls to address public issues without fearing retribution. Silencing those who speak truth to power is nothing more than censorship.