Lower courts said that the judge’s posts were not protected by the U.S. Constitution and the Pennsylvania Constitution.
By Catholics for Catholics
On Monday, the Supreme Court rejected a former Pennsylvania judge’s challenge to his suspension for uploading partisan Facebook posts, a quarrel that stirs on themes of free speech and judicial ethics.
Then-Judge Mark Cohen, was suspended in 2024 by Pennsylvania’s judicial discipline board over dozens of posts lauding Democrats, including former President Biden and Gov. Josh Shapiro (D), and his activism for policies such as raising the minimum wage. In addition, Cohen criticized Republicans on social media.
The Supreme Court justices were mum about why they declined the appeal, or writ of certiorari, from Cohen’s lawyers, and it’s not clear whether any justices voted to hear the case, according to a story by the Epoch Times.
The U.S. Supreme Court rules indicate that at least four of the nine justices have to vote to accept such a petition, or it is denied.
A prior Democratic member of the Pennsylvania House of Representatives, Cohen became a Court of Common Pleas judge in Philadelphia County in 2018. As a judge, he posted positive Facebook posts about Democrats, including former President Joe Biden, and blasted several Republicans and conservative organizations, such as former Rep. Kevin McCarthy (R-Calif.) and the National Rifle Association.
A fellow judge reported Cohen, and the Judicial Conduct Board of Pennsylvania held a trial. The board concluded that the judge violated judicial rules, including undermining public confidence in the independence and impartiality of the judiciary, and the Court of Judicial Discipline of Pennsylvania backed that determination.
Cohen was suspended without pay.
Still, Cohen appealed, contending that his speech was protected by the U.S. Constitution’s First Amendment and the Pennsylvania Constitution. The Pennsylvania Supreme Court in January sided with the judicial board.
“Under the balancing test we adopt today, if a sitting judge speaks outside of his or her official duties on a matter of public concern, then courts must balance the Commonwealth’s interest in protecting the efficiency of the administration of justice, including the independence, integrity, and impartiality of the judiciary, against the judge’s interest in making the statement,” the court’s opinion said.
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