On Thursday, January 22, 2026, the Pennsylvania Capital-Star reported that the state Supreme Court upheld the suspension of a Philadelphia judge due to partisan Facebook posts. The ruling limits what Pennsylvania judges can express online regarding politics.

The decision affirmed the suspension of Philadelphia Family Court Judge Mark B. Cohen, initially imposed by the state Court of Judicial Discipline (CJD) in October 2024. The CJD’s action followed a trial determining that Cohen’s Facebook posts violated the state constitution and the established code of conduct for judges.

The posts in question contained Cohen’s opinions on various political matters, including his views on former U.S. Rep. Liz Cheney, the attack on former U.S. House Speaker Nancy Pelosi’s husband, Gov. Josh Shapiro’s election, and other national and state political issues.

Justice Kevin Dougherty, in his opinion, stated that the CJD correctly determined that a judge’s right to free speech, unless running for retention, must be balanced against the judiciary’s need to protect its independence, integrity, and impartiality. Dougherty emphasized that Judge Cohen’s actions, in adopting the persona of a political party spokesperson and leveraging his office’s prestige to promote partisan interests, undermined the reputation of the entire judiciary.

Six of the seven justices concurred with the decision. Justice Daniel McCaffery, a former Philadelphia judge himself, recused himself from the appeal.

The ruling establishes a new standard in the commonwealth for restricting judges’ speech outside the context of their own political campaigns. While judicial candidates generally have the freedom to discuss their qualifications or critique opponents, the U.S. Supreme Court established in 2002 that any restrictions on judicial candidates’ speech must be narrowly tailored to serve a compelling interest, a principle known as the “strict scrutiny” test.

Cohen’s lawyer, Samuel Stretton of West Chester, argued that this test should apply to Cohen’s case, highlighting Cohen’s 42 years of service in the state House and his standing within a respected Philadelphia political family. Stretton asserted the importance of judges having the right to engage in issues outside their direct cases or colleagues’ matters, adding that Cohen is considering appealing the decision to the U.S. Supreme Court.

The state Judicial Conduct Board (JCB), responsible for investigating and prosecuting ethical violations by judges, pursued the charges against Cohen.

Dougherty’s opinion noted that Cohen created his Facebook page as a state representative in 2007 and continued posting after being elected to the Philadelphia Court of Common Pleas in 2018. His posts drew the attention of the family court’s then-Administrative Judge Margaret Murphy after she received a citizen’s complaint alleging one of Cohen’s posts was racist. While the complaint was unfounded, Murphy raised concerns about other posts, including a picture of Cohen wearing robes on the bench and a post boasting about his consistent “F” rating from the National Rifle Association as a lawmaker.

After a meeting with Murphy and then-President Judge Idee Fox, Cohen removed the photo and the post that triggered the initial complaint. However, he continued to post regularly, leading Murphy to report the posts to the JCB.

Dougherty referenced a federal appeals court decision involving a Wisconsin judge who challenged the state’s Code of Judicial Conduct, which prohibited him from identifying as an “active member of the Democratic party” and endorsing partisan candidates. The Seventh U.S. Circuit Court of Appeals distinguished between speech about a judge’s own campaign and their “entry into the political arena on behalf of his partisan comrades.”

The Pennsylvania Supreme Court adopted the balancing test employed in the Wisconsin case, requiring two determinations to limit a sitting judge’s speech: whether the speech addresses a matter of public concern and the balance between the state’s interest and the judge’s rights.

Justice David Wecht filed a concurring opinion, arguing that a judge’s recitation of accomplishments in another elected office is not, by itself, problematic.

 

 

Source: Pennsylvania Capital-Star