Supreme Court turns away Pennsylvania Judge suspended over partisan posts in free speech fight

WASHINGTON, DC: The Supreme Court on Monday, Oct 5, rejected a Pennsylvania Judge’s bid to restore his job after he was fired for posting partisan content on Facebook.

The case centers on free speech protections under the First Amendment and judicial ethics rules.

Pennsylvania’s judicial discipline Board brought charges against Cohen regarding 66 Facebook posts made on a public profile where he identified himself as a sitting judge.

The posts praised high-profile Democrats, including President Joe Biden and Pennsylvania Gov Josh Shapiro, and advocated for specific political policies, such as raising the minimum wage

Former state lawmaker spent decades as Democratic leader

Cohen spent more than four decades in the Pennsylvania Legislature before becoming a judge and was elected to the judgeship as a Democrat.

He argued that his Facebook posts were simply an extension of his views on issues of public concern. He also said the lower courts applied an improper standard in upholding his suspension.

“This Court’s guidance is sorely needed,” his attorneys wrote in his petition.

“If allowed to stand, the Cohen decision will have a chilling effect on judicial speech, invite political interference in the judicial branch, undermine the rule of law, and have the perverse effect of impugning the integrity of the judiciary.”

Court filings also show that Cohen lost his pension benefits as a result of his suspension.

The Pennsylvania Supreme Court applied a balancing test to determine whether the state’s interest in protecting the integrity and impartiality of the judiciary outweighed Cohen’s First Amendment interests. The court concluded that the state’s interest prevailed because of the volume and tone of his partisan political posts.

Cohen argued that judges are different because they are public officials who speak to the people they represent, rather than ordinary government employees.

 “This Court should grant the petition because it cleanly presents a question of importance concerning fundamental First Amendment protections for members of the judiciary,” his lawyers at DLA Piper wrote.

Court describes Cohen's posts as 'partisan cheerleading'

Pennsylvania’s Judicial Conduct Board called Cohen’s posts “partisan cheerleading” and argued that there was no basis for allowing a sitting judge to engage in such political activity under his First Amendment rights.

“There is no reason for this Court to review that straightforward application of familiar rules that judges around the country have followed for decades,” the board wrote in court filings.

The board is represented by Stanford Law School’s Supreme Court Litigation Clinic.