Supreme Court hears arguments in ‘Obama Flyer’ case

CHARLESTON, W.Va. — Five justices heard oral arguments in the case of Nicholas County Circuit Court Judge Stephen Callaghan, a recently elected Nicholas County judge who could face a year-long suspension from his elected office.

“This is a case where the respondent wanted a job so badly that he was willing to lie to get it,” Teresa Tarr, representing the Judicial Disciplinary Counsel, said Tuesday morning. “Not just once, not just twice, but in each of the flyers he sent to the voters in Nicholas County.”

Callaghan, a Summersville-based lawyer and newly elected circuit court judge, ousted long-time Nicholas County Circuit Judge Gary Johnson from his spot on the bench last year. Callaghan faces discipline as both a lawyer and a judge over a controversial election flyer that is creating a fight over what is and isn’t protected for judicial candidates under the First Amendment of the U.S. Constitution.

“If it’s negligently false, it’s protected by the First Amendment,” Charleston-based attorney Lonnie Simmons, representing Callaghan in court, said Tuesday. “You can’t sanction a judicial candidate for something that occurred as a result of negligence.”

The election flyer in question depicted Judge Johnson as a supporter of then-President Barack Obama’s coal and energy policies and claimed he was “partying” with the President while Nicholas County was losing jobs. Callaghan’s camp argued in front of the state Supreme Court of Appeals that the flyer represented parody, thus making it protected political speech.

“When you are looking at something, part of the analysis is, ‘What would a reasonable person think looking at that?'” Simmons. “I would argue that a reasonable person seeing the photo shopped Obama, the faked beer, Judge Gary Johnson, and these fake streamers and he’s partying with Obama. ‘Well that’s just a goof.'”

The Judicial Disciplinary Counsel disagreed. Tarr said the flyer constituted clear falsehoods.

“I think you can very clearly sever it out here,” Tarr said. “And you can find that [Callaghan] engaged in falsehoods in violation of the rule.”

“There is this very clear implication in the whole thing that somehow Judge Johnson was in alignment with President Obama’s policies as it relates to coal. And that is further from the truth.”

Lonnie Simmons argued that Callaghan’s campaign did not knowingly spread falsehoods about then-Judge Gary Johnson. Simmons also pointed repeatedly to the flyer’s “absurdity” as a means of defending his description of a parody.

“If the Court made a ruling that you could never ever Photoshop anything because Photo shopping is in fact, false,” he said. “It’s false.”

One of the sitting Justices chimed in during that portion.

“It’s false. There is no way you can say it’s true.”

The five justices were not the normal sitting justices on the West Virginia Supreme Court of Appeals. Earlier this month, all five justices recused themselves following a motion from Callaghan’s legal representation.

Justice Robin Davis recused herself following the appointment of Gary Johnson as interim administrative director for the High Court. The other four Justices recused themselves following a motion from Lonnie Simmons earlier this month.

Davis was replaced by retired Justice Tom McHugh. He appointed circuit judges Robert Waters, James Matish, Charles Carl III and Joanna Tabit to hear the case.

The justices must decide whether to uphold the ruling of the Judicial Disciplinary Counsel, which wants to fine Callaghan $15,000, suspend him from the bench for one year, and suspend him from practicing law for a year due to violation of the Professional Code of Conduct.

The hearing lasted a little more than an hour, as the two sides traded answers back and forth with the justices over the nature of the speech in question.





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