“Bigots in black robes”: Legal ethics and judicial hate speech

Instances of judges using, as opposed to merely mentioning, hate speech are relatively rare, but they are not unheard of. Nor are they confined to the distant past. What is more, like other forms of judicial misconduct, when judges use hate speech, this can bring the judiciary into disrepute. Judicial hate speech raises two pressing questions of legal ethics. Do, and should, existing judicial codes of con-duct incorporate rules that directly or indirectly disallow judicial hate speech? And, insofar as judges benefit from judicial privilege and immunity, should that immunity be disapplied in cases of judicial hate speech when that conduct would otherwise be unlawful under relevant civil rights laws or even criminal laws? This article defends two main policy proposals, namely a specific judicial code of conduct rule that disallows the manifestation or appearance of bias or prejudice including but not limited to in the form of judicial hate speech, and the continued disapplication (U.K.) and henceforth disapplication (U.S.) of judicial privilege and immunity to criminal laws and civil rights laws which directly or indirectly restrict the use of hate speech, provided those laws are not overbroad. The article also normatively justifies these policies. It argues there is a legitimate state interest in combating judicial hate speech because such speech: risks damaging public confidence in the judiciary and the administration of justice; undermines the assurance of civic dignity; harms or wrongs the individuals who are exposed to it; implicitly gives others permission to be bigots; and lends authority to ordinary hate speakers. Finally, the article defends First Amendment intermediate scrutiny for restrictions on judicial hate speech.