Article by Talbot D'Alemberte
U.S. District Court Judge Alcee Hastings says President Reagan is a ‘deceitful liar’ and ‘a racist in more senses than we can imagine.’
Alcee Hastings is an outspoken United States district court judge who has had a great deal to say about politics, about the judicial system and, when indicted, about his own case. Before his indictment by a federal grand jury on charges of judicial corruption, he publicly attacked the prosecution's investigation as ‘replete with instances of overzealousness, lies, innuendos, misquotes, inaccuracies, media leaks, snide remarks by investigators, unprofessional interrogation, mistakes and callousness.’ Upon Judge Hastings's indictment, he became extremely critical of the FBI investigators: ‘I have learned who the no-good-niks are . . . and I shall deal with them in court and for life.’
At trial, Judge Hastings aided in his own defense; on February 4, 1983, he was acquitted. In statements following the acquittal, he again criticized one of the FBI agents who participated in the case against him. In subsequent speeches, he attacked President Ronald Reagan, referred to Supreme Court Justice Sandra Day O'Connor as a ‘woman troglodyte,’ and urged support for presidential candidate Jesse Jackson.
One newspaper columnist suggested that Judge Hastings's remarks were ‘not the most appropriate’ for an ‘unelected and life-tenured member of the judiciary to make.’ Another newspaper columnist reported:
Hastings has been outspoken. In one recent speech, before a group of lawyers and judges, Hastings called President Reagan a racist. A Federal Bar Association ethics expert said such a public remark probably didn't violate judicial ethical canons prohibiting federal judges from engaging in politics—but said it was something most judges wouldn't do.
Hastings ‘is not your typical judge in that respect,’ Barry Russell, head of the Federal Bar's ethics committee, told the Miami News. ‘He's very outspoken. . . . Most judges you don't see in the newspaper speaking on public issues.’
Judge Hastings's statements have the obvious potential to offend other judges, lawyers, and members of the public. In fact, following Judge Hastings's acquittal, two federal judges complained about his behavior and his public statements criticizing the prosecution. Acting on this complaint, Chief Judge John C. Godbold of the Eleventh Circuit Court of Appeals appointed a committee to investigate Hastings.
Judge Hastings is a charismatic speaker and harsh critic of the executive. He provides a current example of a problem not solved by the law: defining the limits of speech for a judge. It is unclear whether a judge's duty to rule fairly and impartially—as well as to ‘conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary’—limits his Constitutional right to voice his opinions.
Judge Hastings's comments about this nation's highest political official, the Department of Justice, and the conduct of law enforcement officials constitutes robust political speech. Such robust speech is often characterized as at the very core of first amendment rights and therefore entitled to the greatest possible protection. But it is troubling, nonetheless, that the speaker is a United States district court judge. Does he have the right to say such things? If not, what are the limits of his speech and what sanctions should be applied when those limits are exceeded? If he does have the right to speak in this way, what happens to the ideal of a dispassionate judiciary? If he can be sanctioned for his statements of belief, what does this mean to the independent judiciary? What does it mean to individual freedoms?
The unique role of the judiciary, with its ability to invalidate executive and legislative decisions, makes it the most important agency of government in the preservation and enforcement of our civil liberties. To protect the free speech of others, courts have struck down ordinances and statutes, invalidated executive actions, and set aside court rules. Judges, however, have given little attention to the boundaries of free speech for themselves.
About the Author
Talbot D'Alemberte. Dean and Professor of Law, Florida State University School of Law; L.L.B. 1962, University of Florida; B.A. 1955, University of the South. As counsel for a judge in a Judicial Qualification proceeding which went to the Florida Supreme Court, the author argued that the judge should not be disciplined for speaking against the death penalty. In re Gridley, 417 So. 2d 950 (Fla. 1982).
Citation
61 Tul. L. Rev. 611 (1987)