A Hillsborough County judge says officials should be blocked from using evidence and arguments that her “philosophical beliefs” and comments because they are protected by the First Amendment.
Judge Nancy L. Jacobs faces ethics charges from the Judicial Qualifications Commission Investigative Panel through special counsel. She filed a new motion November 5 after the panel amended its charges against her to narrow evidence for each count of misconduct against her.
Jacobs is accused of making improper remarks about her campaign opponent and promoting an endorsement by the Florida Planned Parenthood PAC as well as injecting partisan politics into a non-partisan judicial campaign, which the panel says violates the code of judicial conduct.
Jacobs filed a similar motion in March. She says the panel should rule to keep evidence being attributed to Jacobs, adding the evidence and comments made by Jacobs are protected by judicial cannon and the First Amendment.
She argues that the charges against her contain issues that are not proper bases for discipline.
“The Special Counsel should not be permitted to bring forward any matters that are related to Judge Jacobs' philosophical beliefs as it would cause prejudice to have the panel consider issues which do not provide a basis for discipline,” Jacobs’ motion in limine states. “Many of the allegations in this matter involve Judge Jacobs’ speech (or the speech of others that is being attributed to Judge Jacobs): that Judge Jacobs failed to appropriately monitor her campaign social media account, allowing inappropriate posts regarding Judge Jared Smith, her opponent, including accusations of anti-abortion views and associating him with Republican ideology; that Judge Jacobs promoted an endorsement from the Florida Planned Parenthood PAC, a non-partisan entity; that Judge Jacobs injected partisan politics into her judicial campaign by associating her opponent with Republican ideology; and that while serving as a Circuit Judge, Jacobs solicited a lawyer to run for election against another sitting judge.”
Jacobs maintains this speech does not violate judicial cannons and is protected by the First Amendment. In addition, she says case law says the proceedings should be limited to allegations Jacobs knowingly made misrepresentations of fact.
“Jacobs, like all judicial candidates, has a well-established constitutional right to ‘state (her) views on disputed legal issues outside the context of adjudication’ which makes it ‘imperative that (she) be allowed freely to express (herself) on matters of current public importance. … Further, ‘the First Amendment “has its fullest and most urgent application” to speech uttered during a campaign for political office.’
“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”
Jacobs says there is no allegation she knowingly made a misrepresentation of fact.
“Rather, she is being punished for stating her opinions and beliefs regarding her opponent, which is an impermissible content-based restriction not narrowly tailored to prevent the knowing misrepresentation of fact,” Jacobs states. “The conduct that Judge Jacobs is accused of is, at its heart, encouraging people to vote for her and discouraging people voting for her political opponent by stating her opinion on issues of public concern.
“This is core First Amendment-protected speech.”
One formal charge claims Jacobs allowed others to post the following statements on her social media accounts:
* “He (Smith) ordered her to have a forced birth.”
* “Send Smith back to private practice where his harsh antiabortion views can do less harm.”
* “This is the judge who denied a young woman an abortion”
* “Again, vote Nancy L. Jacobs for Judge. We need to get this scary man out … Beware Jared Smith.”
The motion says these statements were not made by Jacobs and that she did not monitor and remove these posts.
“In essence, the charge is that Judge Jacobs should have limited this speech of others and that, by not doing so, she endorsed this speech as her own,” the motion states. “However, every one of those statements is an opinion on a matter of importance and none are pledges to rule in a certain way on a matter that might come before Judge Jacobs.
The second formal charge claims Jacobs made inappropriate and disparaging remarks about Smith, including:
* A private text message stating that Judge Smith is “a bigot, an antisemite … not a good person…hates me and people like me.”
* Stating at a candidate forum that attorneys and courthouse personnel had negative feelings about Smith and would say negative things but were scared to come forward.
* Claiming Smith was discriminatory because she or her representative posted on Facebook that Smith is only fair if “litigants look like him or thinks (sic) like him, not if you are a minority.”
* Jacobs reposted a meme that stated “Vote as if: Your skin is not white, your parents are in need of medical care, your spouse is an immigrant … your child is transgender … your sister is a victim of gun violence, your brother is gay.”
Jacobs says none of these statements are misrepresentations that were knowingly made by her.
“They are largely opinions, not statements of fact, and where they are stating facts, there is no allegation that they were knowingly false,” the motion states. “During her campaign, Judge Jacobs tried to distinguish herself as a candidate who would strive not to show bias against anyone who appeared in her courtroom.
“This is something that should be encouraged, not punished, and is undeniably free speech protected by the First Amendment.”
The third formal charge claims Jacobs repeatedly promoted the Planned Parenthood endorsement. She says that doesn’t violate any rules and doesn’t represent a promise to rule inconsistent with the law.
The fourth formal charge says Jacobs injected partisan politics into the race, saying a representative of her campaign said Smith’s church is a “bastion of Republican ideology” and that Smith is a “Republican who believes there is no separation between church and state and apparently, he puts his religion above the rule of law.”
Jacobs says those statements were made by her and that they simply are beliefs and opinions of third parties.
In closing, Jacobs says the Florida Supreme Court and the U.S. Supreme Court have said the judicial code does not prohibit a candidate from discussing his or her philosophical beliefs.
“The Hearing Panel must prevent violations of these rights and therefore should rule, in limine, to prevent evidence or argument that speech by or being attributed to Judge Jacobs, which is protected by the Judicial Cannons or the First Amendment to the United States Constitution, violates the Florida Code of Judicial Conduct,” the motion states.
Jacobs is being represented by Ryan D. Barack and Michelle Erin Nadeau of Kwall Barack Nadeau in Clearwater.