Pa. Supreme Court upholds Philadelphia judge suspension over partisan Facebook posts

by Peter Hall, Pennsylvania Capital-Star
January 22, 2026

Sitting Pennsylvania judges are limited in what they can say or post online about politics, the state Supreme Court ruled. 

The justices’ decision Wednesday upholds a Philadelphia judge’s suspension for making partisan social media posts. 

The state Court of Judicial Discipline (CJD) suspended Philadelphia Family Court Judge Mark B. Cohen in October 2024 after a trial on whether his Facebook posts violated the state constitution and rules of conduct for judges.

The dozens of questioned posts included Cohen’s views about former U.S. Rep. Liz Cheney, the hammer attack on former U.S. House Speaker Nancy Pelosi’s husband, Gov. Josh Shapiro’s election and other state and national political issues.

Listen to Peter and Emily’s audio recap:

https://penncapital-star.com/wp-content/uploads/2026/01/21epphCOHEN.mp3

 

In an opinion Wednesday, Justice Kevin Dougherty wrote the CJD correctly found that unless a judge is running for retention, their right to free speech must be balanced against the interests of the courts in protecting the independence, integrity and impartiality of the judiciary.

“Judge Cohen did not put just his own reputation at risk,” Dougherty wrote. “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.”

Six of the seven justices joined in the decision. Justice Daniel McCaffery, who was also a Philadelphia judge before his election to the Supreme Court, did not participate in the appeal.

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The case sets a new standard in the commonwealth for limits on judges’ speech outside the context of their own political campaigns. 

Judicial candidates generally have freedom to speak about their qualifications for office or in opposition to other candidates. The U.S. Supreme Court in 2002 established that to limit judicial candidates’ speech, the government’s restrictions must be narrowly tailored to serve a compelling interest, known as a “strict scrutiny” test.

Cohen’s lawyer, Samuel Stretton of West Chester, said he argued that the test should be applied to Cohen’s case. He noted Cohen served 42 years in the state House and is a member of a respected Philadelphia political family.

“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, adding that Cohen is considering whether to seek an appeal before the U.S. Supreme Court.

The state Judicial Conduct Board (JCB), which investigates and prosecutes allegations of ethical violations by judges, pursued the charges against Cohen. Attorneys on the case could not be reached for comment late Wednesday.

According to Dougherty’s opinion, Cohen created his Facebook page as a state representative in 2007 and continued posting after he was elected to the Philadelphia Court of Common Pleas in 2018.

His posts came to the attention of the family court’s then-Administrative Judge Margaret Murphy when she received a citizen’s complaint claiming one of Cohen’s posts was racist. That complaint proved unfounded, according to the opinion, but Murphy complained about some of Cohen’s other posts, including a picture of himself wearing robes on the bench and a post boasting about his consistent “F” rating from the National Rifle Association as a lawmaker.

After meeting with Murphy and then-President Judge Idee Fox, Cohen agreed to take down the photo as well as the post that triggered the initial complaint. But when Cohen continued to post regularly, Murphy reported the posts to the JCB.

In his decision, Dougherty drew from a federal appeals court’s decision in the case of a Wisconsin judge who challenged that state’s Code of Judicial Conduct barring him from identifying himself as an “active member of the Democratic party” and endorsing other partisan candidates for office.

In that case, Dougherty wrote, the Seventh U.S. Circuit Court of Appeals drew a dividing line between speech about the judge’s own campaign and his “entry into the political arena on behalf of his partisan comrades.”

It explained candidates’ speech about their qualifications is “at the core of our First Amendment freedoms.” 

“An endorsement, by contrast, ‘is less a judge’s communication about his qualifications and beliefs than an effort to affect a separate political campaign, or even more problematically, assume a role as political powerbroker,’” Dougherty wrote.

The balancing test employed in the Wisconsin case and adopted by the Pennsylvania Supreme Court requires two determinations to determine whether a sitting judge’s speech may be limited. The first is whether the speech addresses a matter of public concern. The second is the balance between the state’s interest and the judge’s.

Dougherty wrote there was no question about the first determination. On the second, he outlined 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.’” 

Cohen advocated for legislation “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,” Dougherty said. 

He noted the problem was compounded by Cohen’s identification of himself as a judge in pictures and in text on the page “erasing any chance readers would not connect the dots between his account and the judiciary.”

“When viewed in that light, the question before us is an easy one to resolve. The Commonwealth’s interest in protecting the efficiency of the administration of justice, including the independence, integrity, and impartiality of the judiciary, outweighed Judge Cohen’s interest in continuing to act as a spokesperson for the Democratic Party after he took the bench,” Dougherty wrote.

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

(This article was updated Thursday, Jan. 22, 2026, to clarify that six of the Supreme Court’s seven justices joined in the decision.)

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Pennsylvania Capital-Star is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Tim Lambert for questions: info@penncapital-star.com.