In re Cohen, 2026 Pa. LEXIS 87 (January 21, 2026) Dougherty, J.
On October 7, 2024, the Court of Judicial Discipline (the “CJD”) suspended then-Judge Mark B. Cohen (“Judge Cohen”) for the remainder of his term of service as a result of his partisan political social media posts. In this appeal as of right under PA. CONST. art. V, §18(c)(1) (a judge “shall have the right to appeal a final adverse order of discipline of the court . . . to the Supreme Court”), Judge Cohen claims his posts were protected speech under the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. This claim raises an open question neither this Court nor the United States Supreme Court has directly addressed: what standard applies when reviewing constitutional challenges to restrictions on a sitting judge’s speech? Restrictions on a judicial candidate’s speech must satisfy strict scrutiny, as required by the United States Supreme Court’s decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). However, the CJD concluded that, outside the context of an election, governmental restrictions on a sitting judge’s speech must clear a lower hurdle: a balancing test. We agree. 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. Here, we hold the Commonwealth’s interests in preserving the judiciary’s reputation for impartiality outweighed Judge Cohen’s interests, as a sitting judge who was not a candidate for judicial office, in publicly advocating for the Democratic Party on Facebook and espousing his partisan political views. Therefore, we affirm the CJD’s order suspending him.
Judge Cohen was suspended for the rest of his term because of partisan political social media posts.
There is no first amendment right of a sitting judge to comment on politics.
This was speech outside context of an election and therefore, must clear a lower hurtle: a balancing test.
Under the balancing test adopted by the Pennsylvania Supreme Court, if a sitting judge speaks outside his or her officially duties on a matter of public concern, then courts must balance the commonwealth’s interest in protecting the efficiency of administration of justice against the judge’s interest in making the statement.
Here, the Commonwealth’s interest in preserving the Judiciary’s reputation for impartiality outweighed Justice Cohen’s interest as a sitting judge who was not a candidate for office, in publicly advocating Democratic Party.
