SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX<\/a><\/p>\nThe case sets a new standard in the commonwealth for limits on judges\u2019 speech outside the context of their own political campaigns.\u00a0<\/p>\n
Judicial candidates generally have freedom to speak about their qualifications for office or in opposition to other candidates. The U.S. Supreme Court in 2002 established that to limit judicial candidates\u2019 speech, the government\u2019s restrictions must be narrowly tailored to serve a compelling interest, known as a \u201cstrict scrutiny\u201d test.<\/p>\n
Cohen\u2019s lawyer, Samuel Stretton of West Chester, said he argued that the test should be applied to Cohen\u2019s case. He noted Cohen served 42 years in the state House and is a member of a respected Philadelphia political family.<\/p>\n
\u201cIt\u2019s very important for a judge to have the right to be involved in issues that don\u2019t come before them or their colleagues,\u201d Stretton said, adding that Cohen is considering whether to seek an appeal before the U.S. Supreme Court.<\/p>\n
The state Judicial Conduct Board (JCB), which investigates and prosecutes allegations of ethical violations by judges, pursued the charges against Cohen. Attorneys on the case could not be reached for comment late Wednesday.<\/p>\n
According to Dougherty\u2019s opinion, Cohen created his Facebook page as a state representative in 2007 and continued posting after he was elected to the Philadelphia Court of Common Pleas in 2018.<\/p>\n
His posts came to the attention of the family court\u2019s then-Administrative Judge Margaret Murphy when she received a citizen\u2019s complaint claiming one of Cohen\u2019s posts was racist. That complaint proved unfounded, according to the opinion, but Murphy complained about some of Cohen\u2019s other posts, including a picture of himself wearing robes on the bench and a post boasting about his consistent \u201cF\u201d rating from the National Rifle Association as a lawmaker.<\/p>\n
After meeting with Murphy and then-President Judge Idee Fox, Cohen agreed to take down the photo as well as the post that triggered the initial complaint. But when Cohen continued to post regularly, Murphy reported the posts to the JCB.<\/p>\n
In his decision, Dougherty drew from a federal appeals court\u2019s decision in the case of a Wisconsin judge who challenged that state\u2019s Code of Judicial Conduct barring him from identifying himself as an \u201cactive member of the Democratic party\u201d and endorsing other partisan candidates for office.<\/p>\n
In that case, Dougherty wrote, the Seventh U.S. Circuit Court of Appeals drew a dividing line between speech about the judge\u2019s own campaign and his \u201centry into the political arena on behalf of his partisan comrades.\u201d<\/p>\n
It explained candidates\u2019 speech about their qualifications is \u201cat the core of our First Amendment freedoms.\u201d\u00a0<\/p>\n
\u201cAn endorsement, by contrast, \u2018is less a judge\u2019s communication about his qualifications and beliefs than an effort to affect a separate political campaign, or even more problematically, assume a role as political powerbroker,\u2019\u201d Dougherty wrote.<\/p>\n
The balancing test employed in the Wisconsin case and adopted by the Pennsylvania Supreme Court requires two determinations to determine whether a sitting judge\u2019s speech may be limited. The first is whether the speech addresses a matter of public concern. The second is the balance between the state\u2019s interest and the judge\u2019s.<\/p>\n
Dougherty wrote there was no question about the first determination. On the second, he outlined the CJD\u2019s concerns \u201cnot just that Judge Cohen publicly posted his personal, political views, but that he posted so regularly and one-sidedly that he appeared to be \u2018an advocate for the Democratic Party.\u2019\u201d\u00a0<\/p>\n
Cohen advocated for legislation \u201cbeing promoted by the Democratic Party, cheered on Democratic politicians, impliedly endorsed a candidate for congressional office, touted his own legislative achievements as a Democrat, and criticized the policies of predominately Republican legislatures,\u201d Dougherty said.\u00a0<\/p>\n
He noted the problem was compounded by Cohen\u2019s identification of himself as a judge in pictures and in text on the page \u201cerasing any chance readers would not connect the dots between his account and the judiciary.\u201d<\/p>\n
\u201cWhen viewed in that light, the question before us is an easy one to resolve. The Commonwealth\u2019s interest in protecting the efficiency of the administration of justice, including the independence, integrity, and impartiality of the judiciary, outweighed Judge Cohen\u2019s interest in continuing to act as a spokesperson for the Democratic Party after he took the bench,\u201d Dougherty wrote.<\/p>\n
Justice David Wecht filed a concurring opinion in which he argued a judge\u2019s recitation of accomplishments in another elected office is not, by itself, problematic. Justice Daniel McCaffery, who was also a Philadelphia judge, did not participate in the appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"The Pennsylvania Judicial Center in Harrisburg. (Pennsylvania Capital-Star file photo) Sitting Pennsylvania judges are limited in what they…\n","protected":false},"author":2,"featured_media":93556,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[46011,46014,5025,46009,46010,46012,69,46008,71,70,46013,5018],"class_list":["post-93555","post","type-post","status-publish","format-standard","has-post-thumbnail","category-philadelphia","tag-facebook-posts","tag-judge-cohen","tag-kevin-dougherty","tag-margaret-murphy","tag-mark-b-cohen","tag-national-political-issues","tag-philadelphia","tag-philadelphia-family-court","tag-philadelphia-headlines","tag-philadelphia-news","tag-samuel-stretton","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/93555","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/comments?post=93555"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/93555\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media\/93556"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media?parent=93555"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/categories?post=93555"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/tags?post=93555"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}