NC Supreme Court Justice Says Investigation Violates Her First Amendment Rights

North Carolina Democrats have held several press conferences defending NC Supreme Court Justice Anita Earls, including this one with Rep. Renée Price and other officials on Aug. 30. (AP Photo/Gary D. Robertson)

By Michael McElroy

September 18, 2023

Anita Earls, the only Black woman on the North Carolina Supreme Court, is being investigated by the state judicial watchdog for criticizing the court’s lack of diversity.

In June, the only Black woman on the North Carolina Supreme Court described the lack of diversity in the state court system and said she’d often felt “very uncomfortable” when her white male colleagues interrupted female advocates arguing before the court.

Speaking to a reporter for Law360, Justice Anita Earls also noted that the court’s new Republican majority had discontinued implicit bias training.

All of these statements are true. But in response, the state’s judicial ethics watchdog opened an investigation into whether Earls had violated the court’s code of conduct by discussing these issues publicly.  

Last month, Earls sued the Judicial Standards Commission (JSC), seeking a preliminary injunction against the inquiry. 

It is the second investigation the commission has opened against Earls since Republicans won majority control of the state Supreme Court in the 2022 elections. Though the first was dismissed and the second is being conducted outside the public eye, the investigations violate Earls’ First Amendment rights and reflect an intentional and unconstitutional “chilling effect,” against her speech, a lawyer for Earls said in an interview this month.

“The Judicial Standards Commission has little, if any, authority to try to investigate or regulate the speech of judges, particularly in the elected judiciary of North Carolina,” her lawyer, Press Millen, said. 

Per state statute, judges can’t do anything that undermines public faith in the judiciary, but simple expressions of free speech do not qualify, he said.

(North Carolina Administrative Office of the Courts via AP)

Earls’ comments, Millen said, “are the kind of thing you’d expect to hear at any conference of judges or lawyers, the kind of thing you might expect to hear in a seminar room at a law school.”

And they were in response to a direct question from the Law360 writer.

“Justice Earls gives some answers,” Millen said, “and those answers, apparently, are thought to be sufficient to trigger a formal investigation as to whether she’s undermining public confidence in the judiciary.”

It is, he continued, “unfathomable to me how this could constitute an appropriate subject of judicial discipline.”

Asked to comment on the investigation, Chris Mears, a spokesperson for the commission, sent an email to Cardinal & Pine repeating a statement sent to several other publications and attributed to Brittany Pinkham, the JSC’s executive director: 

“The North Carolina Judicial Standards Commission is a non-partisan investigative body comprised of members appointed by the Chief Justice, Governor, General Assembly, and State Bar Council. The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”

The Numbers Are Clear

The facts themselves are not in dispute.

The Law360 analysis at the center of the interview found that 93% of the state’s court of appeals judges are white, and that, of the lawyers who argue before the court, 90% are white and 70% are male. The state’s population overall is 70% white and 49% male.

And it’s not just the demographics of judges and lawyers that are unrepresentative of the state, Earls pointed out. 

“If you look at who is hired to serve as clerks to the justices for the term that just started in January, there were 14 or 15 law clerks serving in our court and no African Americans. One Latina,” she said.

The interviewer then asked Earls why these numbers persist.

“I really do think implicit bias is at play,” she said.

“We have so few people of color argue [in front of the court],” Earls said, and the court treats white males with more respect than it does lawyers of color, especially women.

Earls cited an instance in which a Black woman arguing before the court was “attacked unfairly, not allowed to answer the questions, interrupted.”

Junior colleagues frequently interrupted her, too, Earls told Law360.

It is, she said, the “culture of the court.”

If advocates who look like the majority, white male court are treated better, she said, then it likely influences “people’s calculations about who should argue and who’s likely to get the best reception and who can be the most persuasive.”

These things are not matters of “conscious, intentional, racial animus,” she noted, but rather the inherent reality that “we all have implicit bias.”

‘Incomprehensible’

The issue of judicial diversity is important and the public should be able to hear directly from judges on these issues, Amanda Martin, a First Amendment expert and professor at Duke University’s School of Law, said in an interview.

“If the facts as they exist make the judiciary look bad, that’s the judiciary’s fault, not justice Earls’,” Martin said. “She has not cast doubt on the integrity of the judiciary. The facts do. It is incomprehensible to me that a justice could be sanctioned for stating accurate facts.”

Though Earls also stated several opinions about the effects of the lack of diversity, Martin said, “who better to observe and have opinions about things of the court than someone who is there every single day?”

So, “to be consistent with the First Amendment,” Martin said, any restrictions on a judge’s speech “need to be as light as possible.”

This is the crux of Earls’ lawsuit.

“Judges are also citizens of the United States. They have a few more restrictions on things that they can and can’t say, but not many, and certainly none that would be implicated by what Justice Earls said here,” Millen said.

Though judges can’t comment about pending cases or leak deliberations among judges before a case is decided, “when you’re talking about core political speech, a judge’s rights are very similar to yours or mine,” Millen argued.

Even if no punishment or censure comes from the investigation, Millen said, its mere existence could create a “chilling effect” to deny Earls her right to speak.

“If a body established red lines of speech that can’t be crossed,” he said, “but the hue in practice is faded, vague and open to interpretation, then it can mean people are unsure of what can and can’t be said, or opens the possibility that the standards will be enforced randomly or inconsistently.”

The US Supreme Court has already ruled that speech restrictions that cause a chilling effect are often as unconstitutional as outright censorship, he said.

An Ongoing Dispute

Democrats and free speech advocates have come to Earls’ defense and criticized the Republican-majority court..

In a news conference last week, several Democrats including State Rep. Abe Jones, a former state superior court judge, claimed that Chief Justice Paul Newby filed the complaint against Earls.

Newby, a member of the far-right conservative legal group the Federalist Society, discontinued the implicit bias training for the state’s highest court after Republicans won a majority last November. 

It would not be Newby’s first public dispute with Earls. He criticized her in 2019, during his race for chief justice against Cheri Beasley, another Black woman. Though he did not mention Earls by name, Newby compared her to liberal Democrat Congresswoman Alexandria Ocasio-Cortez of New York. 

Little Precedent

There are few precedents for punishing judges over “pure speech,”  Millen said.

He found only two examples, he said: a Mississippi judge went on a racist tirade and a Texas judge who yelled racial slurs at a parking attendant. In both cases, the judges were found to have undermined public confidence in the judiciary. 

Investigations and punishment were appropriate in these cases, Millen said. Justice Earls, however, did not go on a racist tirade or verbally assault a member of the public.

Instead, Millen said, Earls had “a measured and nuanced discussion of the judiciary system, pointing out some things that could be considered imperfections, that could be considered things we ought to improve.”

Instead of harming the court’s integrity, he said, the conversation was intended to protect it.

“The public needs to hear from judges about what’s right and wrong in the judiciary, because judges know more than anyone about that subject,” he said.

Author

  • Michael McElroy

    Michael McElroy is Cardinal & Pine's political correspondent. He is an adjunct instructor at UNC-Chapel Hill's Hussman School of Journalism and Media, and a former editor at The New York Times.

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