Navigating judicial campaigns — what’s permissible in promoting websites?

Navigating judicial campaigns — what’s permissible in promoting websites?

A judicial candidate may distribute business cards and campaign literature that include the candidate’s campaign website address, where the website has an online option to make contributions to the candidate’s campaign, according to a split Judicial Ethics Advisory Committee opinion.

Acting May 14 in Opinion Number: 2024-06, nine committee members said that would be permissible while three concluded it would not.

In the same inquiry, the committee held a judicial candidate may not use a cover photo on the candidate’s personal Facebook page that includes the candidate’s campaign website address, where the website has an online option to make contributions to the candidate’s campaign. The committee concluded that by a vote of 8 to 4.

The advisory panel said the inquiry turns on Canon 7(C)(1), which provides “[a] candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.”

Although the language of this canon seems fairly straight-forward, applying it to the various ways election campaigns seek to communicate to potential voters can sometimes prove challenging, according to the ethics panel, noting “three views have emerged.”

One, according to four members: Yes, a candidate may distribute materials displaying a campaign website link; No, a candidate may not use a personal Facebook cover photo with a campaign website link.

Recently, in Fla. JEAC Op. 2023-12, the committee opined on a somewhat similar inquiry — whether a candidate may “wear a shirt, hat, or other apparel that shows the uniform resource locator (URL) to the website maintained by the candidate’s committee, which contains options to donate and to endorse the campaign.” As here, the Committee was divided, but a majority concluded that the candidate could permissibly wear such apparel.

Four members concluded that providing business cards and campaign materials that display campaign website links is sufficiently similar to wearing apparel showing campaign website links such that this activity does not violate Canon 7.

“These members point out that a candidate must assuredly be allowed to inform voters, in some way, that he or she has a committee; and that committee is expressly authorized to solicit contributions, whether in person, in writing, or through a committee-maintained website,” the Committee said. “However, these members are of the opinion that providing a campaign website link (where the campaign committee’s website includes a donation link) along with a Facebook cover photo on a candidate’s personal Facebook page is more akin to direct solicitation than simply handing out elections materials.”

Two, according to three members: No, a candidate may neither distribute materials displaying a campaign website link nor use a personal Facebook cover photo with a campaign website link.

In Fla. JEAC Op. 2004-07, the Committee opined that a circuit judge who was a candidate for office could not personally distribute campaign material to attorneys, which solicited financial or in-kind contributions, especially not if the materials contained an envelope for mailing a financial contribution to the campaign. In a recent case, the Florida Supreme Court accepted a stipulation and disciplined a lawyer who had solicited donations by handing out postcards and giving speeches that directed voters to her website that contained a “Donate Now” button.

As noted in Fla. JEAC Op. 2023-12, the common thread running through the Committee’s opinions, and the stipulation accepted in The Florida Bar v. Earley, is personal solicitation by a judicial candidate. Passing out campaign literature by the judicial candidate with the candidate’s website on it, which has an online option to make contributions to the candidate’s campaign, is a personal solicitation prohibited by Canon 7C(1).

As to the judicial candidate’s second inquiry, in Fla. JEAC Op. 2008-11, the committee opined that a judge could not use the judge’s personal website to solicit financial or other support to the judge’s campaign. The committee said that such a website must be maintained by the committee of responsible persons. Using a candidate’s personal Facebook page to direct viewers to a campaign website that includes a donation link would also, in effect, be a form of personal solicitation.

And three, according to four members: Yes, a candidate may distribute materials displaying a campaign website link and may also use a personal Facebook cover photo that includes a campaign website link.

Canon 7(C)(1) proscribes nothing more and nothing less than “personal” solicitation, those members said, holding passive advertisement — whether on a shirt, or on a business card, or on one’s personal Facebook page — of a campaign committee’s website URL is not personal solicitation.

“Of course, context is critical to this inquiry,” those four said. “If a candidate hands out a palm card that features their committee’s website address and says, ‘I’d appreciate it if you could donate to my campaign at the website listed on this card,’ then the candidate would, in effect, be personally soliciting a contribution. Likewise, if the candidate’s personal Facebook page explicitly encourages donations by referencing the committee’s website link, that, too, could be deemed a personal solicitation.”

But that does not appear to be what this inquiring candidate is contemplating.

“The querent simply wants to hand out campaign materials that include a reference to their campaign committee’s website (like countless judicial candidates have done in the past),” according to the opinion. “The inclusion of a campaign website’s URL within campaign materials is common practice in Florida judicial campaigns. And this committee has previously opined that Canon 7 should not be read so sweepingly as to prohibit any mention of one’s judicial campaign on one’s personal Facebook page.”

For those reasons, four members of the committee answered both questions in the affirmative.

The Judicial Ethics Advisory Committee is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates may cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.