Global Freedom of Expression

In the Matter of The Hon. Stephen O. Judge-Elect Callaghan

Closed Contracts Expression

Key Details

  • Mode of Expression
    Pamphlets / Posters / Banners
  • Date of Decision
    February 9, 2017
  • Outcome
    Decision Outcome (Disposition/Ruling), Monetary Damages / Fines
  • Case Number
    No. 16-0670
  • Region & Country
    United States, North America
  • Judicial Body
    Appellate Court
  • Type of Law
    Constitutional Law
  • Themes
    Political Expression
  • Tags
    Elections, Members of the Judicial Branch

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Case Analysis

Case Summary and Outcome

The Supreme Court of Appeals of West Virginia upheld and increased sanctions recommended by the Judicial Disciplinary Board (“the Board”) on Judge-Elect Callaghan for making substantially false statements in a campaign flyer. Callaghan mailed a flyer emblazoned with photographs of his rival Judge Johnson and President Obama with the caption “Barack Obama & Gary Johnson Party at the White House . . . .”  and, in a mock-up of a Lay-Off Notice, stating that Judge Johnson was entertaining himself  at the White House while Nicholas County lost hundreds of jobs on account of Obama’s coal policies.The Court reasoned that while the First Amendment gave the highest level of protection to political speech, judges carried out a different role to politicians and were held apart from the typical hurly-burly of political life and partisanship. Applying the “substantial truth doctrine,” the court found that, taken as a whole, the flyer was substantially false and therefore not subject to the protections of the First Amendment. Accordingly, the Court held that the Rules in the Codes of Conduct banning knowing or reckless false statements were constitutional. Further, maintaining the impartiality and integrity of the judiciary was of the utmost importance.


Stephen Callaghan, Judge-Elect for the 28th judicial circuit was campaigning against the Honorable Gary Johnson when he mailed a direct-mail flyer with photo-shopped photographs of Judge Johnson and Obama, seemingly partying with an alcoholic drink in hand at the White House, with the caption “ Barack Obama & Gary Johnson party at the White House…” (p. 4) The opposite side of the flyer went on “…while Nicholas County loses hundreds of jobs” and included a fake lay-off notice.  

Judge Johnson had never been invited to the White House or “partied” with President Obama and, after the flyer was published, he objected to its contents. The Judicial Disciplinary Council agreed and ordered Callaghan to remove the flyer from his campaign and run radio ads over the next three days mitigating the posting of the flyers. Subsequently, Callaghan won the election. Formal charges were filed against him and this Opinion followed.

Decision Overview

Acting Chief Justice Thomas Mchugh delivered the Opinion of the Court.

Callaghan raised three arguments against disciplinary sanctions, namely, that the Disciplinary Counsel did not have jurisdiction to hear this case, the speech in the flyer was protected under the First Amendment, and the discipline recommended by the Board was excessive.

Firstly, the Court determined that the Judicial Disciplinary Counsel and the Board had jurisdiction over Callaghan as a judicial candidate and a member of the legal community. 

The Court then turned to Callaghan’s argument that the discipline recommended by the Board would violate his First Amendment rights to freedom of speech. The Court acknowledged that speech concerning public officials and campaigns is afforded the highest level of protection under the First Amendment, but pointed out that the role of judges differs from the role of politicians in that the former have no control over public funds and suchlike and are placed on a higher plateau. Accordingly, it said, the courts have held judges to a stricter standard than other elected officials but still, “[a] state may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest” (p. 22). The Court said that there was a compelling state interest here, namely, ensuring that the integrity and impartiality of the judiciary was visible to the public, and pointed out that this interest was reflected in public policy via the West Virginia State Code which made judicial elections non-partisan.

The Court then considered whether the speech was sufficiently narrowly tailored to meet that compelling interest.  It referred to U.S. Supreme Court jurisprudence holding that false statements contain no intrinsic First Amendment value, and that the fact that speech is political does not necessarily mean it is entitled to protection. Specifically, the liability for the defamation of a public official or figure requires proof that defamatory statements were made with knowledge or reckless disregard of their falsity. It said that the West Virginia Code of Judicial Conduct Rule and West Virginia Rule of Professional Conduct banned false statements made knowingly or recklessly and that they were sufficiently narrowly tailored to meet the compelling state interest. The Court further noted that, once made, it was impossible to cure a taint with a later retraction and, on the flip side, the target of the taint was unable to adequately rebut the slur without risking similar censure.  In all these circumstances the Court held that the Rules in the Codes of Conduct banning knowing or reckless false statements were constitutional.

The Court then considered Callaghan’s arguments that the Rules “as applied” to the speech in the flyer were unconstitutional inasmuch as the flyer was objectively true, substantially true and/or contained rhetorical hyperbole or parody. Having reviewed the text of the flyer the Court said it could be reasonably interpreted as stating actual facts, and was therefore neither parody nor rhetorical hyberbole. For example, Judge Johnson could have been invited to the White House by President Obama to what could be characterized as a “party” “in support of” the President’s “legislative agenda” as stated on the flyer. The Court went on to reject Callaghan’s approach in which he examined each particular phrase in isolation finding it either substantially or objectively true. For example, Callaghan argued that the flyer simply took two unrelated facts—Judge Johnson’s attendance at a federal seminar and coal job losses in Nicholas County—and juxtaposed them, allowing the public to draw any inferences it saw fit.  Instead, the Court said that the “substantial truth doctrine” must be applied and found that, taken as a whole, the flyer was substantially false and therefore not subject to the protections of the First Amendment.

Finally, the Court disagreed with Callaghan’s claim that the recommended sanctions were excessive. It noted the high standard to which the judiciary is held, the authority of the Board to discipline for improper conduct, Callaghan’s “dismissive and cavalier” attitude, and the inability to effectively mitigate. Accordingly the Court suspended Callaghan for two years without pay and fined him $15,000. 

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

This decision contracts expression by affirming that bans on knowing or reckless false statements made by judicial candidates are constitutional because they serve the state’s interest in preserving the integrity of the judiciary.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

This case binds all lower Courts in Virginia.

Official Case Documents

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