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September 27th, 2010

A Double Standard?


On Wednesday, the Senate Judiciary Committee will hold hearings on President Obama’s nomination of James E. Graves, Jr. to the U.S. Court of Appeals for the Fifth Circuit.  Graves, a justice on the Mississippi Supreme Court since 2001, appears to have a troubling double standard when it comes to free speech.

In two cases that came before the state supreme court, Justice Graves voted in favor of disciplining lower court state judges who made unfavorable comments towards blacks and gays.  He had no problem, however, ruling that a judge could not be disciplined for prejudiced remarks made towards whites because those statements were constitutionally protected speech.

In 2004, 2008, and 2009, the Mississippi Supreme Court considered ethical complaints brought against state judges for making out-of-court statements that expressed bias for or against a particular group.  Canon 2(A) of the Mississippi Canon on Judicial Ethics provides that:  “A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The question before the state supreme court in each of the three cases is whether the First Amendment shielded the judge in question from discipline for the comments he or she made.  There are strong arguments on either side of the issue, but Justice Graves appears, without explanation, to alternate between them, giving the appearance that he only protects speech that he wants to protect.

For example, in Mississippi Commission on Judicial Performance v. Wilkerson (2004), Judge Wilkerson wrote a letter to the editor of his local paper in which he wrote, in part, “the California legislature enacted a law granting gay partners the same right to sue as spouses or family members…In my opinion, gays and lesbians should be put in some type of mental institute instead of having a law like this passed for them.”

The Mississippi Supreme Court ruled, in a 5-2 opinion, that Judge Wilkerson’s speech was constitutionally protected and that the disciplinary proceedings against him should be dismissed.  Justice Graves disagreed, joining a dissenting opinion which argued that the free speech rights of judges “must be exercised without raising in the minds of reasonable people the belief that judges entertain prejudices which will substantially impair their impartiality.”

In the 2008 case of Mississippi Commission on Judicial Performance v. Boland, Judge Boland threw a “tantrum” at a National Drug Court Institute training conference and stated, “you African-Americans—all you African-Americans can go to hell,” and “African-Americans in Hinds County [her county] can go to hell for all I care.”

A majority of the state supreme court held that this speech was not constitutionally protected because: (i) Boland was acting in her capacity as a judge seeking certification for a drug court for Hinds County; (ii) and the comments were bigoted rather than political as Judge Wilkerson’s were.

Though these may be valid distinctions between Boland’s case and that of Wilkerson’s, Justice Graves refused to sign on to the majority opinion.  Rather, he once again joined a concurring opinion that argued, in essence, that the distinctions are not valid because Wilkerson was wrongly decided in the first place.  In other words, while he agreed with the result reached by the court in Boland, he did not agree with their reasoning and felt that both Boland’s and Wilkerson’s speech was constitutionally unprotected.

At least so far he was consistent in his opinion that the First Amendment does not protect statements made by judges that show a bias towards or against particular individuals.  But that changed in Mississippi Commission on Judicial Performance v. Osborne (2009).

Judge Osborne “spoke before the Greenwood Voters League, a predominantly African-American political organization,” at which he declared that “White folks don’t praise you unless you’re a damn fool.  Unless they think they can use you.  If you have your own mind and know what you’re doing, they don’t want you around.”

A majority of the court held that, though the First Amendment generally protects the statements of judges, these statements fell outside the scope of that protection because they were not political speech but mere expressions of “personal animosity.”  In contrast to his consistent jurisprudence up to this point, Justice Graves joined a dissent which held that Judge Osborne’s statements were in fact constitutionally protected.

Unfortunately, Justice Graves did not explain why his position changed.  The only available conclusion is that he changed his position in 2009 because he agreed with Judge Osborne’s speech, while he disagreed with the 2004 and 2008 statements made by Judges Wilkerson and Boland respectively.

The Senate Judiciary Committee has an obligation to press Justice Graves for his legal reasoning, if any, and for its potential implication for cases involving: (i) discrimination by blacks and other minorities against whites; and (ii) the free speech rights of those who oppose the homosexuals agenda.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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