The Mississippi Supreme Court, in an opinion written by Judge Carlson who had dissented in the Wilkerson case, also found that this statement was not protected by the First Amendment. As in Boland’s case, Osbourne’s language did not concern a political or public policy issue. His “public inflammatory, derogatory statement” on whites and blacks “in his jurisdiction is not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity.”
But Justice Graves disagreed, joining a dissenting opinion that found that Osbourne’s insulting and racially derogatory remarks were constitutionally protected speech under the First Amendment, unlike the racial insults made by Judge Nicki Boland or the criticism of legal rights for homosexuals by Judge Wilkerson.
Whether or not one agrees with the Mississippi Supreme Court’s view of the First Amendment is irrelevant to the issue concerning Justice Graves’ nomination to a federal court. A majority of the Mississippi court, not including Justice Graves, acted consistently in these three cases, finding that personal insults and racially derogatory language by two state judges was not protected speech, but opinions about a public issue such as the legal rights of homosexuals by a third judge was protected speech, whether or not one agreed with the opinion.
The only difference between the three cases is that Judges Boland and Wilkerson, who Graves thought had no First Amendment rights, were white, whereas Judge Osbourne, whose racial insults Graves believed were protected speech, was black. Contrast Graves’ behavior with that of Justice Carlson, who consistently took the position in all three cases that the judges’ language was unacceptable, whether they were black or white.
Graves has since told the Senate Judiciary Committee that he voted differently because “Osborne was a candidate for judicial election” while Boland and Wilkerson were not. But the Supreme Court has never held that you have different levels of free speech rights, depending on whether you are running for office or just giving your opinion on a religious, political, or other public policy issue. In fact, the very idea that your rights should vary depending on such circumstances should be enough to alarm anyone who believes in the First Amendment.
Graves’ views are very troubling. But President Obama’s renomination of Graves is worse. It shows that the president also apparently sees nothing wrong with such a racial double standard. That attitude should concern Americans who believe in a color-blind society that protects all of its citizens equally under the law.