Racially charged comments Solomon Osborne made in 2006 to the Greenwood Voters League were protected free speech and he should not be punished for making them, according to three Mississippi Supreme Court justices.
The majority of the court, however, voted last week to have the former Leflore County judge publicly reprimanded for the comments.
“Osborne’s speech n offensive though it was n constitutes protected political speech and this court, in my view, is powerless to punish him for it,” Justice Jess Dickinson wrote in a dissenting opinion.
“I cannot agree that Judge Osborne may be punished for making a political speech,” he said.
Osborne, who is black, told the Voters League crowd in 2006, “White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.”
At the time, Osborne was a sitting judge seeking re-election to the position. His comments were made in response to then Greenwood Mayor Harry Smith’s appointment of two African-Americans to the city’s Election Commission. Smith is white.
The Mississippi Commission on Judicial Performance received 48 complaints after the comments appeared in the Greenwood Commonwealth. In March, after reviewing the incident, the judicial watchdog agency recommended that Osborne, who twice before had been disciplined by the state Supreme Court, be removed from the bench and banned from ever holding a judgeship again.
Osborne, 60, resigned from the bench in May while serving a 180-day suspension without pay for an unrelated incident. He could not be reached for comment.
Justice George Carlson, speaking for the court, wrote in his opinion, “Osborne’s actions constituted willful misconduct in office and … brought the judicial office into disrepute.”
The court said while Osborne’s comments addressed a political issue, they were not protected by his right to free speech because the comments “were disparaging insults and not matters of legitimate public concern” and “went well beyond the realm of protected campaign speech.”
In issuing Osborne a reprimand instead of the lifetime ban that the commission sought, the court said, “the harshest constitutional remedy n removal from office n would be appropriate; however … Osborne has resigned his judicial position.
“Therefore, we find that the appropriate available sanction is public reprimand.”
Dickinson, though, wrote that while the embattled judge’s comment were “malevolent, racist words” which “should be offensive to all rational, fair-minded people,” the court had no legal right to punish him.
Dickinson said the state Supreme Court has noted in the past “that political speech is a category of speech that is ‘at the core of our First Amendment freedoms.’”
Therefore, he said, “this court is constitutionally prohibited from punishing a candidate for judicial office for ‘announcing their views on disputed legal and political issues.’”
Justice Jim Kitchens, in a separate dissenting opinion, said, “Osborne’s comments were far beneath the dignity of a judge. But just as clearly, his comments addressed a political issue, and not just any political issue, but the seminal political issue of this state’s history: race.”
Kitchens said that while Osborne’s comments may be beneath judicial standards, “canons must yield to our constitution.”
“Unwavering fidelity to constitutional principles must always transcend and trump even the loftiest and most laudable goals and guidelines for our state judiciary,” Kitchens he said.
Justice James Grave concurred with Kitchens.
Greenwood resident John Pittman Hey was one of the 48 people who filed a complaint with the judicial watchdog agency after learning of Osborne’s comments.
While saying he believes in a citizen’s right to free speech, a judge “can’t perform his duties and freely express his opinions on things at the same time,” Hey said.
“Being a judge is something you volunteer for and when you do, you have an obligation not to be prejudiced toward one side or another.”
Hey compared Osborne’s comments to a doctor who discusses, in public, a patient’s medical history. “That’s against the Hippocratic oath a doctor makes, and it’s against the law.”
Osborne’s reprimand is to take place in open court on the first day of the next term of Leflore County Circuit Court. Court is scheduled to resume in March.
After his resignation, Osborne was replaced by Kevin Adams, a former chancery court administrator. The position comes up for election in 2010.
The state Supreme Court is still considering another recommendation, based on an unrelated case, that Osborne be banned for life from the bench. That case involves a then 17-year-old Greenwood female whom Osborne ordered detained n a move the commission claims was the result of “improper, illegal and inappropriate” acts.
