Disciplinary Hearing Commission of the North Carolina State Bar No. 08 DHC 21.
McGEE, Judge.
Rachel Lea Hunter (Defendant) campaigned for election to the North Carolina Supreme Court in 2004 and 2006. She was not elected in either of those campaigns. Defendant indicated her intention to run for a seat on the North Carolina Court of Appeals in 2008, but she did not file a Notice of Candidacy. Defendant also indicated her intention to run for the North Carolina Supreme Court in the 2010 elections, but she did not file a Notice of Candidacy for that office.
Defendant has never been a member of the judiciary. However, Defendant began referring to herself as "Madame Justice" on her campaign website by at least March of 2006. For her 2006 Supreme Court campaign, Defendant sought to have herself listed as "Rachel Lea (Madame Justice) Hunter" on the official election ballot. The North Carolina State Board of Elections (BOE) rejected Defendant's request by letter dated 27 February 2006. The letter stated that, pursuant to N.C. Gen. Stat. § 163-165.5(3), "[n]o title, appendage, or appellation indicating rank, status, or position shall be printed on the official ballot in connection with the candidate's name. . . . Nicknames shall be permitted on an official ballot . . . [but only] in ways that do not mislead the voter or unduly advertise the candidacy[.]" The letter further stated that
The Disciplinary Hearing Commission found as fact that the use of "Madame Justice" on Defendant's website began as early as 10 March 2006. Defendant's own testimony and other evidence suggests this term first appeared on Defendant's website in 2004.
the use of the title "Madame Justice" clearly implies that you are currently a female Justice of a Supreme Court. The fact is that you are not. Your use of the term "Madame Justice" is misleading to voters.
. . . The restriction upon the use of titles on the ballot ensures that nothing on the ballot itself will have the possible effect of influencing a voter. Usually this prevents an incumbent from running with their official title next to their name, but this also prevents non-incumbents from assuming a nickname that contains a title that implies they hold the office for which they are a candidate.
However, Defendant continued to use the term "Madame Justice" on her campaign website, referred to herself as "Madame Justice," and included a question and answer section titled: "Ask Madame Justice." The Grievance Committee of the North Carolina State Bar sent Defendant a Letter of Warning dated 28 August 2006, stating:
You are a candidate for a seat on the North Carolina Supreme Court. You have a website, rachelforjustice.com, which has an "Ask Madame Justice" link. In the "Ask Madame Justice" link, you refer to yourself as "Madame Justice[.]" You also use the name "Madame Justice" in your campaign for judge on the North Carolina Supreme Court. You are not a member of the North Carolina Supreme Court or any other appellate court. Furthermore, you have never served on the North Carolina Supreme Court or any other appellate court. . . . The Grievance Committee also found that your use of the name Madame Justice is misleading to the public because it is a misrepresentation of your identity or qualifications (Canon 7(C)(3) of the Code of Judicial Conduct) in violation of Rule 8.2(b) of the Revised Rules of Professional Conduct.
Defendant was informed that she could accept the Letter of Warning, in which case the issue would remain confidential; however, the Letter of Warning could be used against Defendant in any formal disciplinary hearing within three years of its issuance. Rule .0113(j) of the Disciplinary Disability Rules of the North Carolina State Bar. Rejection of the Letter of Warning would result in the filing of a complaint against Defendant with the Disciplinary Hearing Commission (DHC) of the North Carolina State Bar. Id. Defendant initially refused to accept the Letter of Warning, but she later decided to accept the Letter of Warning by letter dated 3 October 2006.
The Office of Counsel for the North Carolina State Bar sent Defendant a letter dated 11 October 2006, in which it acknowledged receipt of Defendant's acceptance of the Letter of Warning. The 11 October 2006 letter stated: "As I am sure you can appreciate, any continued reference on your website, or elsewhere, to "Madame Justice" would be of concern to the State Bar and could be the basis of a future grievance."
Following her acceptance of the Letter of Warning, Defendant did not cease referring to herself as "Madame Justice" on her website, and another grievance was filed against her. Defendant challenged this grievance in a letter dated 6 September 2007, in which she stated of the 28 August 2006 Letter of Warning: "There is nothing new on the website referring to `Madame Justice.' . . . I interpreted the October 2006 letter as precluding new references, not exi[s]ting ones." Defendant further stated in her letter that her use of "Madame Justice" was protected speech under the First Amendment, by stating her belief that "the [B]ar's attempted regulation of the speech contents of my campaign website [is] violative of Republican Party of Minnesota v. White[, 536 U.S. 765, 153 L. Ed. 2d 694 (2002)]."
Plaintiff filed a complaint with the DHC on 24 November 2008. In its complaint, Plaintiff alleged that Defendant's conduct violated the Revised Rules of Professional Conduct by making a "false or misleading communication about herself in violation of Rule 7.1(a)[,]" and by making an "intentional and knowing misrepresentation of her identity or qualifications in violation of Canon 7(C)(3) of the Code of Judicial Conduct which is in violation of Rule 8.2(b)." This matter was heard before the DHC on 20 March 2009. The grievance based upon Rule 7.1(a) was dismissed with Plaintiff's consent. By order entered 13 April 2009, the DHC adjudicated Defendant in violation of Rule 8.2(b) due to a violation of Canon 7(C)(3). At the dispositional stage, the DHC concluded that issuing a reprimand to Defendant was an appropriate order of discipline. Defendant appeals. Additional relevant facts will be discussed in the body of the opinion.
I.
Defendant argues that the DHC erred in concluding that her use of the term "Madame Justice" constituted an intentional and knowing misrepresentation of Defendant's identity or qualifications because the evidence did not support that conclusion. Defendant also argues that her use of "Madame Justice" constituted protected political speech. We disagree.
Our Supreme Court stated the appropriate standard of review for appeals from the DHC in N.C. State Bar v. Talford, 356 N.C. 626, 632-33, 576 S.E.2d 305, 309-10 (2003) (internal citations omitted).
[A]ppeals [from the DHC] are conducted under the "whole record test," which requires the reviewing court to determine if the DHC's findings of fact are supported by substantial evidence in view of the whole record, and whether such findings of fact support its conclusions of law. Such supporting evidence is substantial if a reasonable person might accept it as adequate backing for a conclusion. The whole-record test also mandates that the reviewing court must take into account any contradictory evidence or evidence from which conflicting inferences may be drawn. Moreover, in order to satisfy the
evidentiary requirements of the whole-record test in an attorney disciplinary action, the evidence used by the DHC to support its findings and conclusions must rise to the standard of "clear[, cogent,] and convincing." Ultimately, the reviewing court must apply all the aforementioned factors in order to determine whether the decision of the lower body, e.g., the DHC, "has a rational basis in the evidence."
The Court further explained:
[T]he following steps are necessary as a means to decide if a lower body's decision has a "rational basis in the evidence": (1) Is there adequate evidence to support the order's expressed finding(s) of fact? (2) Do the order's expressed finding(s) of fact adequately support the order's subsequent conclusion(s) of law? and (3) Do the expressed findings and/or conclusions adequately support the lower body's ultimate decision? We note, too, that in cases such as the one at issue, e.g., those involving an "adjudicatory phase" (Did the defendant commit the offense or misconduct?), and a "dispositional phase" (What is the appropriate sanction for committing the offense or misconduct?), the whole-record test must be applied separately to each of the two phases.
Id. at 634,
576 S.E.2d at 311. The whole record test does not allow us to substitute our opinion for that of the tribunal below.
The "whole record" test does not allow the reviewing court to replace the Board's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it
de novo. On the other hand, the "whole record" rule requires the court, in determining the substantiality of evidence supporting the Board's decision, to take into account whatever in the record fairly detracts from the weight of the Board's evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board's result, without taking into account contradictory evidence or evidence from which conflicting inferences
could be drawn.
Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977) (internal citations omitted).
II.
Defendant first argues that there was insufficient evidence to support the DHC's conclusion that Defendant's use of the term "Madame Justice" was "an intentional misrepresentation." Rule 8.2(b) of the North Carolina Rules of Professional Conduct provides: "A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct." Canon 7(C)(3) of the North Carolina Code of Judicial Conduct states that: "A judge or a candidate should not . . . (3) intentionally and knowingly misrepresent his/her identity or qualifications."
Plaintiff and Defendant stipulated to the following relevant facts by a document filed on 20 March 2009:
2. Defendant . . . was at all times referred to herein . . . an attorney at law licensed to practice in North Carolina, subject to the rules, regulations and Rules of Professional Conduct of the North Carolina State Bar and the laws of the State of North Carolina.
. . . .
5. Beginning before December 2006 and as of the date of the filing of this complaint, Defendant maintains a website on the Internet located at www.rachelforjustice.com ("the website").
6. The website previously served, among other things, as an [I]nternet-based advertisement supporting Defendant's campaign to be elected as a Justice on
the Supreme Court of North Carolina in November 2006.
7. Presently and at all times relevant to this complaint, the website contained [D]efendant's political, personal, and legal opinions.
8. From as early as March 10, 2006, Defendant referred to herself as "Madame Justice" on the website.
9. From as early as March 10, 2006, the website also contained a forum for visitors to ask questions of Defendant entitled, "Ask Madame Justice."
10. On or about February 27, 2006, the North Carolina State Board of Elections informed Defendant that it would not list her as a candidate on the ballot for election to the Supreme Court of North Carolina under the nickname "Madame Justice," stating that to do so clearly implied that she was currently a female Justice of the Supreme Court.
11. Defendant was not a female Justice of the Supreme Court on or about February 27, 2006.
12. On or before September 11, 2006, the State Bar notified Defendant that the use of the term "Madame Justice" was misleading and constituted a violation of the Revised Rules of Professional Conduct.
13. Despite such notice, Defendant continued to use the term "Madame Justice" on her website in various ways between December 13, 2006 and June 10, 2008, including but not limited to as follows:
(a) The website contained a link to the section entitled "Ask Madame Justice."
(b) The website included references to "Madame Justice," and invited visitors to submit questions and stated "[q]uestions submitted by the
campaign will be answered candidly here by `Madame Justice'."
14. On or about July 24, 2007, the website contained a red circle with a line through it over the words "Ask Madame Justice" and contained the words "[d]eleted by the North Carolina Bar In A [sic] Effort to Suppress the First Amendment and Free Speech."
15. Defendant has never been a member of the judiciary.
In addition to the stipulated facts listed above, the DHC found in its 13 April 2009 order that the "[a]s of November 2008, the website also served as an internet-based advertisement supporting" Defendant's 2010 campaign for a seat on the North Carolina Supreme Court. The BOE "notified [D]efendant that it found [D]efendant's use of the term `Madame Justice' to be misleading to voters" since Defendant had never been a Justice, nor a member of the judiciary, and the term "Madame Justice" has been and still is "used to refer to a female member of the judiciary."
Based upon these and additional findings, the DHC concluded the following:
By referring to herself on the website as "Madame Justice" [D]efendant made an intentional and knowing misrepresentation of her identity and qualifications in violation of Canon 7(C)(3) of the Code of Judicial Conduct which is in violation of Rule 8.2(b) of the Rules of Professional Conduct.
Defendant does not argue that any of the above findings of fact are erroneous and, upon review of the whole record, we hold that these findings of fact are supported by clear, cogent and convincing evidence in the record. Defendant produced evidence at the hearing that, while in law school, Defendant was referred to as "Madame Justice" by fellow students. Defendant's own testimony, however, renders this evidence irrelevant. Defendant testified that she didn't "recall" if she had been referred to by the nickname "Madame Justice" while in law school. If Defendant had used the nickname "Madame Justice" while in law school, but could not recall having done so, then it could not have served as the genesis for her use of that term during her campaigns. According to Defendant's testimony, she received her "inspiration" to refer to herself as "Madame Justice" from a female justice on the Pennsylvania Supreme Court who signed her opinions "Madame Justice." Defendant recalled that at the time, she "just thought [that the use of the term `Madame Justice' by the female justice when signing her opinions] was totally improper[.]"
Defendant testified she first started using "Madame Justice" in 1998 as a name for a character she created for an Internet role-playing game set in ancient Rome. Defendant chose the nickname "Madame Justice" for herself. At the hearing, Defendant was asked: "To the extent that anybody uses [Madame Justice] to refer to you, it's because you've first introduced yourself as having that name. Isn't that fair to say?" Defendant responded, "Correct." Defendant further testified: "When I started to run, I had mentioned to [my husband] about my nickname. I reminded him of it, and we thought it would be a good way, and it did catch on with people. It was a way of connecting with voters[.]"
Defendant does not contest that, in 2006, she attempted to place her name on the ballot for Justice of the Supreme Court as "Rachel Lea (Madame Justice) Hunter." Nor does Defendant contest findings of the DHC that she received a letter from the BOE that denied her request to appear on the ballot using the term "Madame Justice," because "to do so clearly implied that she was then a female Justice of the Supreme Court[,]" and that the "use of the term `Madame Justice' [would] be misleading to voters" since Defendant had never been a Justice, nor a member of the judiciary, and the term "Madame Justice" had been and still was "used to refer to a female member of the judiciary." Defendant later received a letter from the North Carolina State Bar "informing [D]efendant that the use of the term `Madame Justice' was misleading and constituted a violation of the Rules of Professional Conduct."
There is no dispute that Defendant has never been a member of the judiciary. Defendant testified that she believed it was inappropriate for a sitting Justice of the Pennsylvania Supreme Court to use the term "Madame Justice" when "signing" her opinions. Defendant testified that she decided to start using the term "Madame Justice" in her judicial campaigns to garner more public recognition. Defendant received two separate letters informing her that use of "Madame Justice" would be misleading to the public, since Defendant had never been a Justice, or, in fact, a member of the judiciary at all. Even with these written warnings, Defendant continued to refer to herself as "Madame Justice" on her campaign website.
Defendant argues that on the "About Rachel" biography page of her website, there was no suggestion that she had ever been a member of the judiciary and, therefore, she could not have been intentionally misrepresenting her identity or qualifications. Defendant's argument might be persuasive if she believed that every person who heard her referred to as "Madame Justice" would visit her website and check her biography page. Defendant's own testimony shows that even some visitors to her website who took the time to submit a question on the "Ask Madame Justice" page believed Defendant was, or had been, a judge. Defendant testified that "even if people would make a mistake and call me that, I would say, no, no, I'm not a judge. I'm not a justice." Defendant's attempt to include the term "Madame Justice" on the 2006 ballot is proof that Defendant's use of the term was not intended to be limited to those who visited her website, or who wanted to ask for her legal opinion through the "Ask Madame Justice" page.
Defendant testified that she wanted her use of "Madame Justice" to spark greater recognition and interest among the public in her campaign to become a Supreme Court Justice. Defendant wanted to be known as "Madame Justice," and she did what she could to make that happen. Defendant testified:
I had never run for office in 2004. Nobody knew who the heck I was. It's very crucial, especially in judicial races. Most people do not know who is running for the court seats of anything. . . . And it was critical for me to build what's called "name I.D." If you talk
to political experts, I mean, they will tell you that.
This statement by Defendant evinces her belief that, in general, most voters were uninformed about the judicial candidates. A lack of knowledge on the part of voters would, of course, make it more likely that they would believe Defendant was, or had been, an actual judge if Defendant was successful in identifying herself in the minds of voters as "Madame Justice." Defendant testified that her use of the term "Madame Justice" did increase the interest in her campaigns and that
it connected in their mind, you know, me, "Madame Justice," you know, not that I was a judge or justice, but it was just a way of, "Oh, I know who that is." And so I thought when they saw it on the ballot they'd remember, "Oh, yeah, I saw her website."
Defendant stipulated that, after she agreed to accept the 3 October 2006 Letter of Warning, she continued to refer to herself as "Madame Justice" on her website. Defendant responded to correspondence dated 24 October 2006 wherein a visitor to Defendant's website stated, "[i]t was nice of them to put `Madame Justice' on the front page of the NO. Take all the publicity you can get, that[`]s how people remember your name[.]" Defendant responded: "You got it exactly right on the publicity issue. Give yourself a hand. Now people have identified me with the name `Madame Justice.'" Defendant argues that "both the letter from the [BOE] and the letter of warning from the Grievance Committee state the view that [Defendant's] use of `Madame Justice' was misleading, not that it was false." Therefore, according to Defendant, the letters did not put her on notice that continuing to refer to herself as "Madame Justice" would constitute intentional and knowing false statements, but presumably just intentional and knowing misleading statements. However, both letters stated that Defendant's use of "Madame Justice" was "misleading" because it constituted a misrepresentation of Defendant's identity or qualifications — i.e., a false statement. As the BOE stated in its letter, "the use of the title `Madame Justice' clearly implies that you are currently a female Justice of a Supreme Court. The fact is that you are not. Your use of the term `Madame Justice' is misleading to voters." Both the BOE and the North Carolina State Bar were clearly stating that Defendant's use of the term "Madame Justice" was misleading to voters because it was not true — it was a false statement.
Defendant was clearly attempting to make herself synonymous with the term "Madame Justice" in the minds of potential voters. The extent to which she was successful is not relevant. Defendant's intentional acts toward this end constitute an "intentional and knowing misrepresentation of her identity or qualifications" because there was clear and convincing evidence that Defendant knew her use of the term "Madame Justice" had misled potential voters; nonetheless, she continued to use it.
Defendant argues that referring to herself as "Madame Justice" did not constitute an intentional misrepresentation because other public figures have been referred to by official titles. This argument is devoid of merit. As examples, Defendant argues that Elvis Presley was known as "the King," and that Frank Sinatra was known as "the Chairman of the Board." First, the examples to which Defendant cites refer to nicknames given to celebrities by others, not, as in the case before us, a term specifically chosen by the person to whom it refers. Defendant could not be sanctioned for acts of others over which she had no control, but Canon 7(C)(3), along with Rule 8.2(b), did allow the DHC to sanction Defendant for her own conduct. Second, and more relevantly, Elvis Presley and Frank Sinatra were entertainers, and were not running for public office. Defendant is correct in stating that "the use of the nickname [the King] does not suggest that Mr. Presley was literally royalty." Defendant is incorrect, however, in arguing that her situation is analogous. Defendant was not a celebrity and, therefore, her biography was not well known to the general public. Defendant was actively attempting to become a Justice of the North Carolina Supreme Court. It is inevitable that at least some voters erroneously assumed Defendant was a current or former member of the judiciary because she referred to herself as "Madame Justice" during her campaign to become a Justice. As part of her First Amendment argument, discussed below, Defendant states: "In particular, speech concerning the qualifications of candidates for public office is `at the core of our First Amendment freedoms.' Republican Party of Minnesota v. White, 536 U.S. 765, 774 (2002)." It is incongruous for Defendant to argue that her use of "Madame Justice" was not a representation concerning her qualifications for judicial office while simultaneously arguing that her use of "Madame Justice" is specially protected speech because it concerns her "qualifications" as a candidate "for public office."
Defendant also argues that, because she used quotation marks around "Madame Justice," she could not be intentionally misleading anyone. First, on the home page of Defendant's website, the only permanent reference to "Madame Justice" was the tab on the left-hand side of the website that read: "Ask Madame Justice" and served as a link to that forum. There were no quotation marks used on that tab. The heading of her "Ask Madame Justice" page also included the title "Ask Madame Justice" without quotation marks. Therefore, Defendant's use of quotation marks with her use of the term "Madame Justice" was not universal, and anyone who visited only Defendant's home page would likely see only the term "Madame Justice" without quotation marks.
Second, by Defendant's own testimony and writings on her website, she wanted the term "Madame Justice" to become synonymous with her in her campaigns. She was attempting to become known as "Madame Justice." Defendant could not have expected that people referring to her in conversation as "Madame Justice" would somehow indicate the presence of quotation marks.
We hold there was clear and compelling evidence to support the DHC's findings and its conclusion that Defendant intentionally and knowingly misrepresented her identity and her qualifications. Talford, 356 N.C. at 634, 576 S.E.2d at 311.
III.
Defendant next argues that the DHC erred in concluding that she violated Canon 7(C)(3) and Rule 8.2(b) by her use of the term "Madame Justice," because DHC's application of Canon 7(C)(3) to Defendant's actions violated the First Amendment of the United States Constitution.
Specifically, Defendant argues that "[a]pplying Canon 7(C)(3) to speech that did not involve a specific intent to misrepresent one's identity and qualifications or to statements that are not false but merely misleading would raise serious constitutional issues, as it would render Canon 7(C)(3) unconstitutionally overbroad." Defendant does not challenge the constitutionality of Canon 7(C)(3) on its face, but only as it was applied to her conduct in the case before us.
We note that Defendant begins her First Amendment argument in her first argument on appeal, and continues it through her second argument.
In her brief, Defendant argues:
Under ordinary principles of constitutional and statutory interpretation, . . . statutes limiting political speech must be strictly and narrowly construed, in order to avoid a chilling effect on protected speech resulting from doubt as to the statute's scope or the limits on what it proscribes.
See Watts v. United States, 394 U.S. 705, 707 (1969) (". . . a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind.");
Virginia v. Black, 538 U.S. 343, 365 (2003) (in the absence of a narrow construction of statutory provision prohibiting certain expression, "the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute — and potentially convict — somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.")
Interpreting Canon 7(C)(3) to apply to statements made without a specific intent to misrepresent a candidate's qualifications or to statements that are not false but merely misleading would go contrary to these established principles.
In addition, both federal and North Carolina courts have long recognized "the venerable principle of statutory interpretation that if it is possible to reasonably construe a statute so as to avoid constitutional doubts, a court should adopt that construction. . . . Applying Canon 7(C)(3) to speech that did not involve a specific intent to misrepresent one's identity and qualifications or to statements that are not false but merely misleading would raise serious constitutional issues, as it would render Canon 7(C)(3) unconstitutionally overbroad.
Assuming arguendo that the standard set forth by Defendant above is correct, her argument still fails. We have already held that clear and convincing evidence supported DHC's findings and its conclusion that Defendant "made an intentional and knowing misrepresentation of her identity and qualifications[.]" DHC also concluded that Canon 7(C)(3)'s "prohibition of only intentional and knowing misrepresentation(s) of a judge's or candidate's identity or qualifications does not violate the First Amendment of the Constitution of the United States." Therefore, applying the standard Defendant sets forth in her brief, we hold that there was clear and convincing evidence to support DHC's findings of fact, and that those findings of fact support the conclusions that Defendant's "statement" was false, and that Defendant had the specific intent to misrepresent her identity and qualifications through her use of the term "Madame Justice." DHC's ruling had a rational basis in the evidence. See Talford, 356 N.C. at 634, 576 S.E.2d at 311.
However, in Defendant's second argument, she abandoned the standard she previously contended would keep Canon 7(C)(3) from running afoul of the First Amendment, and argues for a much broader standard. We are not convinced by Defendant's revised argument.
Defendant contends that the proper standard of review for regulation of political speech is strict scrutiny. We agree.
Under the strict-scrutiny test, [Plaintiff has] the burden to prove that the [relevant provision] is (1) narrowly tailored, to serve (2) a compelling state interest. In order for [Plaintiff] to show that the [relevant provision] is narrowly tailored, [Plaintiff] must demonstrate that it does not "unnecessarily circumscrib[e] protected expression."
White, 536 U.S. at 774-75, 153 L. Ed. 2d at 704 (internal citations omitted).
Defendant contends: "In a campaign setting, First Amendment protection extends not only to truthful speech, but also to speech that may be false or misleading. See New York Times [Co.] v. Sullivan, 376 U.S. 254, 271-72[,] [ 11 L. Ed. 2d 686, 701-02] (1964)[.]" Sullivan does not support Defendant's argument. In that opinion, Sullivan, a public official, sued the New York Times (the Times) for libel. The Times ran an advertisement containing false statements. Sullivan, though not named in the advertisement, contended that false statements in the advertisement were clearly directed toward him. Sullivan involved both freedom of speech, and freedom of the press. Sullivan did not involve any political campaign or speech made by any elected official or person seeking election. The Sullivan Court held that the Times was protected by the First Amendment from prosecution for false statements of fact made against a government official absent a finding that the Times had acted with "actual malice." Sullivan, 376 U.S. at 283, 11 L. Ed. 2d at 708. Sullivan does not support Defendant's sweeping contention that political speech made during a campaign may never be restricted without violating the First Amendment.
Defendant admits one exception, allowing that defamation may be constitutionally restricted political speech.
The United States Supreme Court has held "that a State has a compelling interest in protecting voters from confusion and undue influence." Burson v. Freeman, 504 U.S. 191, 199, 119 L. Ed. 2d 5, 14 (1992) (citation omitted).
The Court also has recognized that a State "indisputably has a compelling interest in preserving the integrity of its election process." The Court thus has "upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." In other words, it has recognized that a State has a compelling interest in ensuring that an individual's right to vote is not undermined by fraud in the election process.
Id. at 199,
119 L. Ed. 2d at 14-15 (internal citations omitted). "To survive strict scrutiny, however, a State must do more than assert a compelling state interest — it must demonstrate that its law is necessary to serve the asserted interest."
Id. at 199,
119 L. Ed. 2d at 15.
Specifically, concerning First Amendment implications involving limitations on the speech of judicial candidates, the United States Supreme Court has indicated that restrictions on said speech can be justified if there is a compelling government interest, Brown v. Hartlage, 456 U.S. 45, 53-54, 71 L. Ed. 2d 732, 741 (1982), and the offending speech is made with knowledge of its falsity, or with reckless disregard as to whether it was false or not. Id. at 61, 71 L. Ed. 2d at 746 (Finding a violation of the First Amendment where: "There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard [as to] whether it was false or not."). This is the same "actual malice" standard recognized in Sullivan. Furthermore: "A State may insist that candidates seeking the approval of the electorate work within the framework of our democratic institutions[.]" Brown, 456 U.S. at 58, 71 L. Ed. 2d at 744.
Defendant cites Weaver v. Bonner, 309 F.3d 1312 (11th Cir. Ga. 2002), in support of her argument that her use of the term "Madame Justice" was protected by the First Amendment. In Weaver, the Eleventh Circuit held a Georgia prohibition against certain kinds of speech unconstitutional, stating:
Canon 7(B)(1)(d) not only prohibits false statements knowingly or recklessly made, it also prohibits false statements negligently made and true statements that are misleading or deceptive or contain a material misrepresentation or omit a material fact or create an unjustified expectation about results. For fear of violating these broad prohibitions, candidates will too often remain silent even when they have a good faith belief that what they would otherwise say is truthful. This dramatic chilling effect
cannot be justified by Georgia's interest in maintaining judicial impartiality and electoral integrity. Negligent misstatements must be protected in order to give protected speech the "breathing space" it requires.
Id. at 1320. We find no support of Defendant's argument in
Weaver. Defendant referred to herself as "Madame Justice," when she clearly knew she was not a "Justice" or any other kind of member of the judiciary. Defendant's use of this term was not a "false statement negligently made," as Defendant knew she was not a Justice, nor was it a "true statement that was misleading or deceptive," as it was false.
When there is a compelling State interest involved, and the State demonstrates that its law is necessary to serve the asserted interest, political speech may be regulated, without violating the First Amendment, if the speech is made with actual malice. We hold that, as applied to the facts before us, Canon 7(C)(3) does not violate the First Amendment, and we affirm the ruling of the DHC. Canon 7(C)(3) is narrowly tailored to protect a compelling government interest — the integrity of judicial elections — by a prohibition against misrepresenting a judicial candidate's identity or qualifications for the office sought, and requires actual malice, a knowing and intentional misrepresentation of fact.
We have already held that Defendant's use of "Madame Justice" constituted an intentional and knowing misrepresentation of her identity or qualifications. This intentional misrepresentation would likely have created confusion in the minds of voters, leading some to believe Defendant was a former or current justice. This misrepresentation could well have induced voters to cast votes for Defendant based upon the false belief that Defendant had judicial experience and thus, based upon intentional false representations, could have influenced an election. Our holding is limited to a finding that the DHC did not violate the First Amendment by applying Canon 7(C)(3) to Defendant's conduct of intentionally putting herself forward as "Madame Justice" with the stated purpose of having herself identified in the minds of the voters by that term, when she was seeking election as a Justice of the North Carolina Supreme Court. While we restrict our holding to the facts of the present case, we note that misrepresentation of a candidate's qualifications or identity is different than political speech involving a candidate's statements concerning the candidate's political views, or the political views of an opponent.
We hold that there was clear and convincing evidence to support the DHC's findings of fact, and that those findings of fact support conclusions that Defendant's "statement" was false, and that Defendant had the specific intent to misrepresent her identity and qualifications through her use of the term "Madame Justice." The DHC's ruling had a rational basis in the evidence. There was adequate evidence to support the DHS's findings of fact, most of which were stipulated to. Those findings support the DHC's conclusions of law in all ways relevant to the holdings in this opinion, and those findings and conclusions support the ultimate decision of the DHC. Finally, Defendant does not contest the dispositional ruling of the DHC. See Talford, 356 N.C. at 634, 576 S.E.2d at 311. Defendant's arguments are without merit.
Affirmed.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).