'Advocate for the Democratic Party': Democrat judge loses free-speech appeal over partisan social media posts

Last week, the Pennsylvania Supreme Court issued an opinion on the free-speech parameters for sitting judges in the commonwealth in a major decision related to a 2024 case.

The case concerned former Judge Mark B. Cohen, a Democrat who was suspended from the Philadelphia County Court of Common Pleas by the Court of Judicial Discipline in October 2024 over his outspoken political posts on Facebook.

'When, as here, a sitting judge adopts the persona of a political party spokesperson and abuses the prestige of his office to advance that party’s interests, he detracts from the reputation of the entire judiciary.'

These posts, the Philly Voice reported, involved, for example, Cohen's views about former Rep. Liz Cheney (R-Wyo.), the hammer attack on California Democrat Rep. Nancy Pelosi's husband, and the election of Democrat Pennsylvania Governor Josh Shapiro, among other national and state political issues.

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Photo by MARTIN BUREAU/AFP via Getty Images

The opinion outlined some of the other issues that Cohen advocated for on Facebook, demonstrating his apparent partisanship.

"Judge Cohen advocated for legislation, such as the Build Back Better Bill that was then being promoted by the Democratic Party, cheered on Democratic politicians, impliedly endorsed a candidate for congressional office, touted his own legislative achievements as a Democrat, and criticized the policies of predominately Republican legislatures."

Cohen previously served as a Democrat Pennsylvania state representative from 1974 to 2016 prior to his election to the Court of Common Pleas in 2018, according to his biography on the Pennsylvania House of Representatives website.

Six of the seven justices on the Pennsylvania Supreme Court affirmed the opinion. However, Justice Wecht filed a concurring opinion in which he expressed his refusal to endorse "any suggestion that a jurist" who formerly served in a political branch of government "may not in some appropriate fashion refer to ... his or her record of actions taken or accomplishments achieved while serving."

The seventh, Justice McCaffery, did not participate in the decision or deliberation of the case.

While the court affirmed that judges are in fact uniquely qualified to share their professional opinions on some matters, the issue with Cohen's posts was consistently the "volume and tone" of the content he was sharing.

Justice Dougherty, who wrote the opinion of the court, said, "Thus, Judge Cohen did not put just his own reputation at risk. When, as here, a sitting judge adopts the persona of a political party spokesperson and abuses the prestige of his office to advance that party’s interests, he detracts from the reputation of the entire judiciary."

The opinion of the court upheld the CJD's concerns "not just that Judge Cohen publicly posted his personal, political views, but that he posted so regularly and one-sidedly that he appeared to be 'an advocate for the Democratic Party.'"

The Court concluded that "the Commonwealth's interest in protecting the efficiency of the administration of justice outweighed Judge Cohen's interest in posting partisan political content on Facebook where the volume and tone of his posts cast him as little more than a spokesperson for the Democratic Party."

Cohen's lawyer, Samuel Stretton, suggested that Cohen is considering an appeal before the U.S. Supreme Court.

"It's very important for a judge to have the right to be involved in issues that don't come before them or their colleagues," Stretton said.

According to prior court documents, Cohen, 77, was suspended without pay in October 2024 through December 31, 2024, at which point he was mandated to retire due to age. Based on available court documents, it is not clear whether his benefits would continue, though his legal counsel appealed the decision to suspend his medical benefits.

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