There are codes of judicial conduct for both state and federal judges. In general, the code of judicial conduct requires a judge to uphold the integrity and independence of the judiciary, avoid impropriety or the appearance of impropriety in any activities, and perform duties impartially and diligently. Judges are also required to refrain from political activity and to conduct their extrajudicial activities (such as writing about or giving speeches on the law) in a way that reduces the risk of conflict with their judicial duties. A judge cannot be paid for extrajudicial activities.

District Judge is Disqualified for Public Comment on Pending Case and for Ex Parte Communications

In 2001, a federal court of appeals disqualified the federal district court judge who had been hearing the antitrust lawsuit filed by the United States against the software giant, Microsoft Corporation. Microsoft had argued that the district judge should be disqualified because he had committed ethical violations. The court of appeals found that while the case was pending, the district judge had been giving secret interviews to reporters in which he discussed the merits of the case. The judge had also stated his impressions of testimony given by various witnesses. The court of appeals ruled that the judge had violated the code of judicial conduct by publicly commenting on the merits of a pending case. The court of appeals also concluded that the judge's interviews with reporters were inappropriate ex parte communications on the merits of the case. The judge's behavior was found to violate the prohibition against the appearance of partiality.

District Judge is Disqualified for Ex Parte Communications and for an Appearance of Partiality

In another 2001 case, the parties on appeal claimed that there was an ex parte conversation between the district judge hearing the case and a reporter. The judge had told the reporter that the current proceeding was "more complex" than another case previously litigated. The court of appeals held it was an abuse of discretion for the judge not to recuse (remove) herself from the case based on an appearance of partiality. Although the court of appeals found no actual bias on the part of the judge, the code of judicial conduct states that a judge should avoid public comment on the merits of a pending action.

State Judge is Disqualified for Public Comment on Pending Case

In 2002, the Supreme Court of Nebraska held that the state's code of judicial ethics prohibited a judge from commenting on a case that was pending before another judge or that had been taken to an appellate court. The court stated that the rule was adopted to prevent undue influence on the judicial process, which might occur if a judge from one court criticized the rulings of a judge from another court. Such comments could affect the decision in the case and undermine public confidence in judicial decisions.

First Amendment Right to Free Speech

Every citizen has a right to free speech under the First Amendment. However, the First Amendment's protection does not extend to all speech, and judges do not have unlimited rights to free speech. The courts have held that there is a compelling interest in protecting public confidence in the judiciary's impartiality. A judge can be disciplined for making public comments about a pending case or for making any comments that call into question the judge's impartiality or objectivity.

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