Sixth Circuit rules Kentucky judicial candidates’ campaign speech protected by First Amendment

The U.S. Court of Appeals for the Sixth Circuit has ruled that Kentucky judicial candidates may identify themselves as Republicans or conservatives during campaigns without violating the First Amendment, limiting the Kentucky Judicial Conduct Commission’s ability to discipline candidates for such speech.The decision Monday arose from the 2022 judicial campaigns of Joseph Fischer and Robert A. Winter Jr., each of whom challenged Kentucky judicial conduct rules after receiving warning letters from the commission shortly before the election.
Fischer’s campaign materials described him as “the Conservative Republican” and featured a generic elephant symbol associated with the Republican Party. Winter identified himself as a “conservative” and “Republican” in campaign messaging. Both candidates also received – but did not solicit – endorsements from local Republican organizations and pro-life groups, some of which appeared in campaign materials.
Complaints filed with the commission alleged the candidates violated Kentucky rules prohibiting judicial candidates from identifying as political party nominees, accepting political endorsements or making pledges and commitments on issues likely to come before the courts.
After the commission issued warning letters, Fischer and Winter sued in federal court seeking declaratory and injunctive relief. A prior Sixth Circuit panel granted a preliminary injunction, finding the candidates faced a credible threat of enforcement.
In Monday’s opinion, Judge Amul Thapar, joined by Judge John K. Bush Murphy, wrote that the candidates’ speech was protected by the First Amendment. Judge Richard Allen Griffin concurred in part and dissented in part.
The court held that describing oneself as a “conservative Republican” or using a generic elephant logo does not imply an official party nomination or endorsement. Instead, the panel said, such statements communicate ideological views that voters are entitled to hear.
The court also concluded that references to pro-life endorsements and “Choose Life” signs did not amount to prohibited pledges or commitments regarding future judicial decisions.
The ruling largely affirmed the district court’s injunction blocking enforcement of Kentucky’s “Nominee” and “Commitment” rules against the candidates’ campaign conduct. The Sixth Circuit additionally extended as-applied relief concerning the state’s “Endorsement” rule, while declining to invalidate the rules on their face.
The panel further determined the case was not moot, despite both candidates losing their races. The majority said the candidates retained standing because the complaints against them remain open, and the commission has not fully disavowed future enforcement action.
In his partial dissent, Judge Griffin argued the threat of enforcement was too speculative to support standing.
The decision adds to a line of cases recognizing broad First Amendment protections for judicial campaign speech, while highlighting the continuing tension between judicial impartiality rules and political expression in states that elect judges.
The injunction bars the commission from sanctioning Fischer and Winter for the campaign conduct at issue in the 2022 election cycle.
The commission has not publicly commented on the ruling or indicated whether it will seek further review.

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