The decision leaves intact a Pennsylvania ruling that judges may face discipline for partisan political speech, but the U.S. Supreme Court did not rule on the underlying First Amendment question.
The U.S. Supreme Court has declined to hear a First Amendment challenge brought by former Pennsylvania Judge Mark B. Cohen, ending his effort to overturn disciplinary sanctions imposed over years of partisan political posts on Facebook.
In an Oct. 5 order, the court denied Cohen’s petition for a writ of certiorari in Cohen v. Judicial Conduct Board of Pennsylvania. The justices offered no explanation for the denial, as is customary. The action leaves intact a January ruling by the Pennsylvania Supreme Court upholding Cohen’s suspension, but it does not constitute a ruling by the U.S. Supreme Court that the state court’s constitutional analysis was correct.
The case presented a broader constitutional question about how much First Amendment protection sitting judges retain when speaking about politics outside the courtroom. Cohen argued that restrictions based on the content of a judge’s speech should be subjected to “strict scrutiny,” one of the most demanding standards courts use when reviewing government restrictions on speech.
Pennsylvania’s courts disagreed.
Cohen, a longtime Democratic state legislator before becoming a judge, was elected to the Philadelphia Court of Common Pleas and joined the bench in 2018. His publicly accessible Facebook account identified him as a judge, described his prior service as a Democratic legislator and Democratic National Convention delegate, and at one point included a photograph of him wearing judicial robes. The account had roughly 5,000 friends and 1,000 followers.
The disciplinary case began after a complaint in 2021 alleged that one of Cohen’s posts was racist. Judicial officials determined that allegation was unfounded, but their review of his Facebook activity raised separate concerns about extensive political commentary.
According to the Pennsylvania Supreme Court, Cohen continued posting political material even after court administrators raised concerns and after the Judicial Conduct Board opened an investigation. More than 60 posts were introduced during the disciplinary proceedings.
The posts included praise for Democratic President Joe Biden, Pennsylvania Gov. Josh Shapiro and Sen. John Fetterman, as well as support for Democratic-backed legislation including the Build Back Better proposal. Cohen also criticized Republican politicians and policies and commented favorably on Philadelphia District Attorney Larry Krasner during an impeachment dispute.
The record was somewhat more complicated than simply endorsing Democrats. The disciplinary court also found that Cohen effectively supported then-Rep. Liz Cheney, a Republican, while she was seeking reelection. The central concern was not that every post followed a single partisan line, but that the overall volume and tone of Cohen’s political activity made his account appear, in the state court’s words, like that of an advocate for the Democratic Party.
Pennsylvania’s Court of Judicial Discipline ruled in May 2024 that Cohen had violated multiple provisions of the state Code of Judicial Conduct, including rules intended to prevent judges from using the prestige of judicial office to advance political or personal interests and from creating an appearance of partiality.
At a later sanctions hearing, two attorneys testified that Cohen had a reputation for fairness and had not expressed political views from the bench, an important distinction between his judicial conduct and his social-media activity. The disciplinary court nevertheless concluded that his public political activity undermined the appearance of judicial impartiality.
In October 2024, the court suspended Cohen without pay for the remainder of his term, which expired Dec. 31 of that year when he reached Pennsylvania’s mandatory judicial retirement age of 75. The sanction therefore removed him from the bench for roughly the final three months of his term.
Cohen appealed, arguing that his Facebook posts concerned matters of public importance and were protected by the First Amendment. He maintained that judges should not lose the right to participate in public discussion simply because they hold judicial office.
The Pennsylvania Supreme Court acknowledged that Cohen’s posts addressed matters of public concern but rejected his argument that the state had to meet strict scrutiny when regulating the off-bench speech of a sitting judge who was not campaigning for judicial office.
Instead, the court adopted a balancing test weighing a judge’s speech rights against the state’s interest in maintaining an independent and impartial judiciary.
Under that test, the court concluded that Pennsylvania’s interest prevailed. It found that Cohen’s frequent political commentary, combined with a Facebook profile explicitly identifying him as a judge, created an appearance of partisan alignment incompatible with the standards imposed on sitting judges.
Justice David Wecht, in a concurring opinion, emphasized the distinction between ordinary citizens and judges, writing that judicial officers voluntarily accept restrictions on some forms of expression while they remain on the bench.
Cohen then asked the U.S. Supreme Court to intervene. His petition specifically asked whether restrictions on a sitting judge’s political speech should be subjected to strict scrutiny under the First Amendment.
By declining the case, the Supreme Court left the Pennsylvania decision in place without resolving that broader question nationally.
The practical consequences for Cohen are limited because his suspension was completed in 2024 and he was already required to retire because of his age. The more lasting significance of the case is Pennsylvania’s holding that sitting judges can be disciplined for sufficiently extensive partisan political activity even when the speech occurs away from the courtroom and concerns legitimate matters of public debate.
The Supreme Court’s denial means that holding remains binding in Pennsylvania, but it does not create a nationwide Supreme Court precedent on where the First Amendment line should be drawn for judges using social media.