T-Shirts And A Bare Majority

A recent opinion of the Florida Judicial Ethics Advisory Committee

Subject

A judicial 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, so long as the candidate does not personally solicit attorneys and others by directing them to the campaign website for the purpose of making donations and showing support.

Issue

Whether a judicial 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.

ANSWER:  Yes.

Facts

An attorney, who is a candidate for judicial office, has inquired .

Discussion

Although it is the stated policy of the Judicial Ethics Advisory Committee not to vet campaign literature, see Fla. JEAC Op. 94-35, we conclude that this Judge’s question is capable of recurring and that the answer to the question will be of interest to other candidates now and in future contests.  Accordingly, we offer the following guidance.

Canon 7C(1) of the Florida Code of Judicial Conduct forbids judicial candidates from personally soliciting funds or support.  Instead, such tasks can only be performed by whatever “committees of responsible persons” the candidate appoints for that purpose.  Therefore, in Fla. JEAC Op. 2008-11, the Committee opined that a judge could not use the judge’s personal website to facilitate the giving of financial or other support to the judge’s re-election effort. We opined that such a website must be maintained by the committee of responsible persons. 

In Fla. JEAC Op. 2004-07, the Committee opined that a circuit judge who was a candidate for office could not personally distribute to attorneys campaign material, which solicited financial or in-kind contributions, and especially not if the materials contain an envelope for mailing a financial contribution to the campaign.

The Florida Supreme Court recently disciplined a lawyer who stipulated that while campaigning for judicial office, she solicited donations by handing out postcards and giving speeches that directed voters to her website that contained a “Donate Now” button, in addition to posting invitations on her personal social media pages to her campaign fundraisers and asking voters to support her by donating to her campaign. See Stipulation as to Probable Cause, The Florida Bar v. Kaysia Monica Earley, 368 So.3d 409 (Fla. 2023).

The common thread running through our prior opinions, and the stipulation accepted in Florida Bar v. Early, is personal solicitation by a judicial candidate. The question presented by the instant inquiry is, therefore, whether merely displaying the campaign’s website amounts to personal solicitation by a judicial candidate. 

A bare majority of the Committee concludes that the sort of passive advertisement described by the inquiring judicial candidate does not run afoul of Canon 7C(1). These members do not read Canon 7 as prohibiting a judicial candidate from making any reference whatsoever to the campaign’s website merely because it contains a link for donation. Context is the key to finding the line between passive advertisement and personal solicitation. As our prior opinions have explained, a candidate must not personally solicit attorneys and others by directing them to the campaign website for the purpose of making donations and showing support.

A significant minority of the Committee disagrees. They conclude that a judicial candidate wearing apparel displaying the URL of a campaign website, which contains an option to donate or endorse the campaign, amounts to personally soliciting campaign funds or personally soliciting attorneys for publicly stated support contrary to Canon 7C(1).

(Mike Frisch)