Criminal Contempt Punishment for Trial Judge’s “Inflammatory” Speech in Judicial Opinion?

I blogged about this case when such punishment was imposed, but yesterday the Third Circuit reversed (In re Kendall (3d Cir. Apr. 3, 2013)):

After the Virgin Islands Supreme Court issued a writ of mandamus in a criminal case presided over by former Superior Court Judge Leon A. Kendall, he published an opinion chastising the mandamus decision and recusing himself from the case due to alleged prosecutorial misconduct. The Justices cited Kendall for criminal contempt and eventually found him guilty because his opinion, in their view, obstructed the administration of justice and because his recusal was pretextual in that he sought to avoid complying with the writ of mandamus.

Kendall asks us to reverse his convictions. He argues that his judicial opinion is protected by freedom of speech and cannot therefore serve as a basis for criminal contempt. As to that novel question, we hold that the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing proceedings. Kendall’s opinion did not pose such a threat. We also agree with Kendall that there is insufficient evidence that his recusal was pretextual. Consequently, we will reverse the Virgin Islands Supreme Court’s judgment and vacate all of Kendall’s contempt convictions….

[D]oes the government’s broader authority to discipline attorney speech about ongoing proceedings also permit the government to hold a judge in criminal contempt for his speech about ongoing proceedings? We answer that question with a resounding “No.” Criminal contempt is no mere disciplinary tool. It derives, like all crimes, from a government’s power as sovereign. Because the government’s use of the criminal-contempt power is the sine qua non of a sovereign act, the government has no greater authority to hold someone in criminal contempt for their speech about ongoing proceedings than it would to criminally punish any speech. The government’s additional authority to discipline attorney speech is therefore inapposite. And that means the speech must present a clear and present danger — not just a substantial likelihood — of obstructing the administration of justice. Consequently, the First Amendment protects a judge’s opinion from criminal punishment unless his speech poses a clear and present danger to the administration of justice.

[Footnote: The Supreme Court has not yet been asked to resolve whether or how Garcetti's government-employer rationale extends to disciplinary restrictions on a judge's on-the-job speech. See White, 536 U.S. at 796 (Kennedy, J., concurring) (“Whether the rationale of [our public-employee-speech cases] could be extended to allow a general speech restriction on sitting judges-regardless of whether they are campaigning-in order to promote the efficient administration of justice, is not an issue raised here.”); see also In re Vincent, 172 P.3d at 608 (“[E]valuating the constitutionality of restrictions on the political speech of a judge does not fit neatly into the existing analytical framework for First Amendment analysis. Selecting the appropriate framework for analysis has become even more difficult since White.”) Since that question is not implicated here, we leave it for another day.]