Free Speech vs. Judicial Ethics

The U.S. Supreme Court will hear arguments Tuesday (1/20/15) on a case pitting a judicial candidate’s First Amendment rights against the judicial code of ethics limiting a candidate’s role in campaign fundraising.   The case is Williams-Yulee v. Florida Bar.  It will be the first time the court has considered restrictions on judicial campaigns since 2002.

Most states that elect judges (and the majority of states do elect judges) restrict the candidate from taking a direct role in soliciting campaign contributions.  See, e.g., Rule 4.4, Ark. Code of Judicial Conduct (2014).  Fundraising is outsourced to a committee, and a Chinese wall should separate the candidate from knowledge about his or her contributors to avoid claims of bias. However, in practice that wall is often transparent because candidates are questioned publicly and in the press about their donors, and campaign finance reports disclosing donors are publicly available.

In the last case before the high court addressing the tension between judicial campaign restrictions and free speech, the Court held (in a 5-4 decision) that judicial ethics rules that prohibit a candidate from announcing their views on disputed legal and political issues did not pass strict scrutiny and therefore violated a candidate’s first amendment rights. Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

Reading the White case together with Citizens United v. FEC, 558 U.S. 310 (2010) (the first amendment prohibits government regulation of independent political expenditures by non-profit corporations — which has been over-simplified to the concept that money equals speech), it seems likely the Supreme Court is poised to strike down another limitation that burdens judicial candidates’ free speech rights.  Fans of judicial restraint and decorum (and incumbent judges) will argue that this further opens the floodgates, turning judicial elections into ugly partisan contests that undermine confidence in the impartiality, integrity, and independence of the judicial branch. Adding to the dynamics, the federal courts (who are appointed by the president and never stand for election or retention) are perhaps unsympathetic to the plight of most state court judges who must be popularly elected, or periodically survive retention elections.

The decision in Williams-Yulee will fuel the debate over election vs. appointment of judges by at least partly answering the question: Is there is any meaningful way that state judicial races can be held to a higher standard than the superficial and hyper-partisan campaigns for congress, president, governors, and the like — without an undue burden on a judicial candidate’s First Amendment rights?

The argument in Williams-Yulee will be available on the Court’s website on Friday, January 23rd at this link: http://www.supremecourt.gov/oral_arguments/argument_audio.aspx

Here’s an article discussing the facts of the case in more detail: http://www.mcclatchydc.com/2015/01/16/253383/free-speech-or-conflict-high-court.html

For another discussion of this case, see Mark Stern’s provocative article in Slate — Justice for Sale: The Supreme Court is Poised to Make Judicial Elections Even More Corrupt.

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/judicial_elections_and_free_speech_the_supreme_court_s_williams_yulee_case.html

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