Georgia judge tosses First Amendment suit over ex-congressman's abortion-related judiciary campaign ads

ATLANTA (CN) — A federal judge tossed a lawsuit Thursday from a candidate running for a spot on Georgia’s Supreme Court who sought to block a state judicial committee from investigating him for talking about abortion issues during his campaign.

U.S. District Judge Michael Brown dismissed the First Amendment complaint due to a lack of standing and denied the motion for a temporary restraining order and preliminary injunction as moot.

John Barrow, a former Democratic congressman, filed the lawsuit just hours before his deadline to reply to a complaint received by Georgia’s Judicial Qualifications Commission that his campaign statements and ads violated state judicial ethics rules.

During a hearing on Monday, Barrow argued he has standing because the commission’s special committee on judicial election campaign intervention could issue a public statement critical of him and its threat of prosecution chills his First Amendment rights.

“The problem for plaintiff is that — upon receipt of a confidential letter from the Director of the JQC setting forth allegations that many of his statements and advertisements violate various provisions of the code — he chose not to keep the allegations confidential but rather publicized them by filing this lawsuit and attaching the confidential letter,” Brown wrote in the order.

“He could have filed his complaint (and his motion seeking injunctive relief) under seal. But he decided not to do so. He chose to announce the allegations against him,” the judge added.

In the confidential letter, the commission’s director instructs Barrow to respond to complaints that he violated various code rules by promising to vote a certain way on issues likely to come before the Georgia Supreme Court; making misleading statements about the role of jurists and the current state of Georgia law; and acting in a manner that did not promote public confidence in the independence, integrity and impartiality of the judiciary.

The complaint from his opponent, Justice Andrew Pinson, focuses on several statements Barrow made in campaign commercials or elsewhere, essentially announcing his belief that the Georgia Constitution protects a woman’s right to an abortion and that he will protect that right if elected to the Georgia Supreme Court.

Barrow also argued that his First Amendment rights were being chilled by a threat of prosecution from the commission. But offered no evidence of self-censorship to support his claim, Brown wrote in his order.

“He has not claimed he intends to exercise his First Amendment rights, but is not doing so for fear of prosecution by the JQC. Indeed, the evidence shows just the opposite: that plaintiff is determined to continue saying the things he wants to say about his views on abortion rights and his commitment to defending those rights,” Brown wrote.

The judge added that Georgia has an important interest in regulating state judges’ conduct and that enjoining the enforcement of state judicial ethics canons would unduly interfere with legitimate state activities.

However, Brown noted that Barrow potentially could raise his First Amendment claims if the director of the commission decided to file formal charges.

Early voting is currently underway for the nonpartisan May 21 race between Barrow and Pinson, who was appointed to the state’s nine-justice court by Republican Governor Brian Kemp in 2022.

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