Georgia Judge Asserting First Amendment Rights in Defending Allegation of Ethics Violations After Controversial Facebook Post
A judge in Cherokee County, Georgia, has been charged with ethics violations after posting support for the Cherokee County Sheriff’s Office spokesperson who made controversial comments about Robert Aaron Long, the man accused of killing eight people at three metro Atlanta spas.
During the March 17 press conference following the Atlanta spa shootings, Capt. Jay Baker reported that the shooter was “pretty much fed up and kind of at the end of his rope. Yesterday was a really bad day for him and this is what he did.” The comments were not received well by the public, to the extent that in the days and weeks following the shooting, Capt. Baker received many calls to resign from the community.
The following day, Superior Court Judge David Cannon posted to his Facebook in defense of Captain Baker, writing, “I believe he was summarizing what he was told by the investigators that interviewed the accused from the accused perspective. And Jay was not saying from Jay’s perspective that the accused had a bad day. Feel free to disagree, but read the transcript first!”
Three days after posting, the Judge appeared before the investigative panel of the Judicial Qualifications Commission. The Judicial Qualifications Commission alleges that the Judge committed six violations of the code of judicial conduct. According to the AJC, those charges include that the Judge failed to act in a manner that promoted public confidence in the independence, integrity and impartiality of the judiciary; that the Judge lent the prestige of his office to advance the private interests of others; and that he commented on a pending case in a court on which he serves.
Although the Georgia Judicial Qualifications Commission does not prohibit judges from posting comments on their personal social media accounts, the Georgia Code of Judicial Conduct requires that judges promote public confidence in the Judiciary. Comment 1 to Georgia Code of Judicial Conduct Rule 2.1 states that “[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct of judges. Judges must avoid all impropriety and appearance of impropriety. . . . [and] must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen, and they should do so freely and willingly.”
Judge Cannon asserts that the JQC is infringing upon the his free speech rights under the First Amendment. In his answer to the JQC’s complaint, Cannon explains that, when he commented on the case, he believed it had been assigned to a different Cherokee County Superior Court judge.
In support of his argument First Amendment argument, Judge Cannon cited to Republican Party of Minnesota v. White, a 2002 Supreme Court opinion that “held that judicial officers and judicial candidates do not lose the right to free speech by holding or seeking judicial office.”
The Answer further alleges that the JQC is exceeding and abusing its authority by “applying other provisions of the Code of Judicial Conduct in such a way as to suppress, impede, and chill respondent’s free speech rights.”
Unlike some other states, it does not appear that the Georgia JQC has issued a formal advisory opinion regarding judges’ social media statements; perhaps Judge Cannon’s case will be the catalyst for an advisory opinion like California’s Opinion 2021-42, which provides advice for judges commenting on law-related topics.
