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Can Judges Ethically Attend Rallies and Protests Supporting Racial Equality?

MIAMI, FLORIDA - JUNE 14: Demonstrators participate in a protest against police brutality on June 14, 2020 in Miami, Florida. Protests continue in cities throughout the country over the death of George Floyd, who died while in police custody in Minneapolis on May 25th.  (Photo by Joe Raedle/Getty Images)
By Joseph Fawbush, Esq. on July 24, 2020 7:19 AM

Judges have an important role in safeguarding the impartiality of the courts. Still, judges don't live in a vacuum. Many may feel obligated to support certain causes, particularly the current movement advocating for racial equality. So, can judges participate in peaceful rallies and protests supporting racial equality such as Black Lives Matter?

According to a recent California Supreme Court Ethics Committee advisory opinion, it isn't prohibited in all circumstances. But they must do so carefully to preserve the public's opinion of judicial impartiality. Focused less on when judges can attend, the formal opinion instead warns judges what qualifies as an ethical violation. According to the committee, there are several circumstances under which judges should not participate in protests:

  • If it would undermine confidence in judicial impartiality
  • If it involves an issue likely to come before the courts
  • If participation violates the law, such as by ignoring curfews
  • If the rally supports a political party, candidate, or organization

The opinion also warns that judges should be sure to note the protest's goals and statements to the extent possible and be prepared to leave if necessary. It also warns judges to expect press and recognition for attending.

So, Can Judges Attend Black Lives Matter Protests?

While not mentioned directly in the opinion, the obvious question is whether a judge could attend a march or protest organized by Black Lives Matter. The advisory opinion leaves the question unresolved but appears to advise judges to consider any participation carefully. As just one example of a potential complicating factor, cases involving police use of excessive force regularly come before the courts.

A Written Statement Seems Preferred

Instead of attending a rally, the Ethics Committee suggested writing a statement where the message could be fully controlled. They offered as an example California Chief Justice Tani G. Cantil-Sakauye's June 8 message supporting racial equality.

While the opinion provides a framework for judges in California to decide whether to attend rallies or events supporting racial justice, there are no hard and fast rules. Of course, good judgment, the ability to weigh competing priorities and values, and applying guidelines to unique facts and situations are all hallmarks of a good judge.

Related Resources

Sotomayor Brings #BlackLivesMatter to the Supreme Court Bench (FindLaw's U.S. Supreme Court)

What Do "Legal Observers" Do? (FindLaw's Greedy Associates)

Recent Fed Appellate Qualified Immunity Cases Alleging Excessive Force Against Minorities (FindLaw's Greedy Associates)

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