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Judge Suspended for Badly Photoshopped Campaign Ad

By William Vogeler, Esq. on February 15, 2017 | Last updated on March 21, 2019

Photoshop has created many images that you just can't unsee: a giant shark leaping to bite helicopter; Oprah's head on Ann-Margret's body; Forrest Gump in the White House ...

Seriously, when it comes to photoshopped images, the line between fact and fiction is sometimes pretty blurry. It certainly got one West Virginia judge into big trouble.

Judge Stephen O. Callaghan of Nicholas County has been suspended for two years without pay and fined $15,000 because of his "materially false" campaign ad. It was so bad, the state Supreme Court attached it to its disciplinary opinion to make the point. One judge concurred and dissented because he wanted to suspend Callaghan from law practice as well.

Party at the White House

The flier shows photoshopped photos of then-president Barack Obama raising a glass of beer with Judge Gary Johnson and a headline saying, "Barack Obama and Gary Johnson Party at the White House." The headline continues on the flip side: "...While Nicholas County loses hundreds of jobs." The ad also says that Johnson was invited to the White House at the same time the news reported a 76% drop in local coal mining jobs.

"Can we trust Judge Gary Johnson to defend Nicholas County against job-killer Barack Obama?" the flier says.

Callaghan sent out the ad and posted it online five days before the election in May 2016, drawing a quick objection from the incumbent Johnson and the Judicial Disciplinary Counsel. To avoid a disciplinary complaint, Callaghan agreed to remove the ad from his online campaign and to run radio commercials with an apology for "any inaccuracies."

Voters apparently could not unsee the ad, however, and Callaghan beat Johnson by 220 votes out of more than 6,600. But if the election was a battle, Callaghan ultimately lost the war.

Would You Believe, "Beer Summit?"

The state Judicial Investigation Committee filed disciplinary charges against Callaghan, and the case proceeded to the state Supreme Court for a final disposition. The entire court recused itself because the judges had hired Johnson as a court administrator, so a temporary panel decided the case.

Callaghan argued that his ad was a parody and mere "rhetorical hyperbole," reaching back to compare it to the famous "beer summit," captured in a photo of Obama meeting at the White House garden to discuss a racially tense issue with a professor and a policeman over a bottle of beer. Unfortunately for Callaghan, the panel was not amused.

"We find that the upshot of the flyer is, as Judge Johnson put it, that he was 'fiddling while Rome burned,' i.e. he was 'partying' in Washington at the invitation of and with President Obama while Nicholas Countians were struggling with job losses," retired Justice Thomas E. McHugh wrote.

Callaghan, in the meantime, is suing in federal court over his First Amendment rights. The judge in that case may have the last laugh.

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