Judges have free speech rights, too

In one respect federal judges and state judges occupy different universes. Federal judges hold office, in the words of the Constitution, during "good Behaviour" - essentially a lifetime appointment. In most states, state court judges must face the electorate either to obtain or retain their seats. (Lawyers appointed to fill vacancies must run in the next election.)

Our respect for the judiciary causes many legislators and commentators to look on judicial elections at the state level as a necessary evil, requiring different rules and considerations from legislative elections. There are those, including retired Supreme Court Justice Sandra Day O'Connor, who deplore that state law in so many states requires them.

Among the rules that apply to judicial elections, two areas have primarily attracted controversy and attention. The first is solicitation of funds, the subject of this article; the other is the regulation of what candidates may say.

The laws and rules governing judicial elections in many states, including Florida (but not California), prohibit a candidate in the election from making a direct solicitation of campaign funds. They require that all fund raising be done by a committee, with no participation by the candidate. The rule, which has been approved by the American Bar Association, applies equally to a lawyer seeking a judgeship and a sitting judge seeking reelection or retention.

Lanell Williams-Yulee, a lawyer running for judge in Florida, personally (perhaps by facsimile - it doesn't matter) signed a "campaign fundraising letter" directly asking for funds, and was disciplined by the Florida bar. She challenged the law, claiming that it violates her First Amendment rights of free speech, but the Florida Supreme Court upheld it. The U.S. Supreme Court has now granted certiorari in her case (Williams-Yulee v. The Florida Bar), which will be argued during this term.

Many, but not all, states have the same or similar restrictions on judicial candidates, and there is a serious split in the circuits, which presumably drew the high court's interest in the subject. The candidate's contention in Florida is that the law imposes an improper burden on speech, and cannot be justified by the state interests served by the restriction.

Constitutional doctrine holds that a law limiting speech on the basis of its content must pass the test of strict scrutiny, meaning it must serve a compelling state interest, and the restriction must be narrowly tailored to serve that interest. The Florida Supreme Court held that the state's interest in "preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary" is a compelling one.

Not only must the judge be honest, but the public should have no reason to doubt that integrity. It is generally conceded this constitutes a compelling interest.

The issue becomes whether the rule is narrowly tailored: Does it prevent more speech than necessary to achieve the state's interest?

The Florida court found it did not, being targeted at the "exact source" of the evil to be remedied. The candidate contended that barring a mass mailing of a letter went far beyond what is necessary to achieve the desired result, but she could not persuade the court: A personally signed mailing, said the court, raises the appearance of impropriety. The requirement of a fund raising committee insulates the judge from direct participation in the process.

In reaching that result in a parallel case, the Oregon Supreme Court, cited by the Florida court, said that the interposition of a committee "permits the judge to obtain funds [to campaign] but eliminates the specter of contributions going from the hand of the contributor to the hand of the judge."

The law is not much more complicated than that, but the problem is. Does it really make a difference of constitutional dimensions if the judge is insulated in this manner, bearing in mind that nothing prevents the judge from learning who the contributors are or the amount of their contributions? (The corresponding Minnesota law prevents the judge from knowing the identity of the contributors.)

If there will be judicial elections, and a majority of states have them, there will be candidate advertising. Which will have to be paid for. Williams-Yulee's brief argues that rules that limit fund raising help incumbents against challengers, and favor the wealthy and well-connected against outsiders seeking judgeships.

The U.S. Supreme Court is no stranger to judicial elections. In 2002 in Republican Party of Minnesota v. White, it invalidated on free speech grounds a state rule that limited candidates for judicial office to a narrow range of permissible statements. Justice Antonin Scalia'a opinion (for the majority of a 5-4 court) held that the "announce rule," which prevented candidates from speaking on "disputed legal or political issues" had two constitutional infirmities: It was content-based and it kept important information about a candidate for office from the voting public.

And in 2009, a divided court reversed a judgment in favor of a party whose contributions to a state Supreme Court's judge were so unprecedented in amount, and such a large portion of that judge's support, that the judge's failure to recuse himself constituted a violation of due process. Caperton v. A. T. Massey Coal Co. Inc.

These cases involve complex and controversial issues of judicial bias, the function of judicial elections, and as one commentator wrote, "the fragility of judicial independence."

But the issue in Florida is narrow: Is it of constitutional dimension that the law limits speech protected by the First Amendment by requiring that fund raising be insulated from the speaker?

Who are the most likely contributors to a judge's campaign? If it is the lawyers who appear before him, should they be the object of direct solicitation? And does that matter if the judge can eventually learn the identity of contributors?

Does the rule, as the Florida attorney contends, favor sitting judges and the wealthy?

The U.S. Supreme Court has a history, dating back to the 1960s, of striking down state bar regulation of lawyers and lawyer speech on First Amendment grounds. Compared to cases such as Bates v. State Bar of Arizona (1977) - which invalidated bans on lawyer price advertising, and which had the effect equivalent to a thermonuclear explosion on the legal profession - this case is far from earth-shaking.

But it is important whenever the Supreme Court involves itself in state regulation of the legal profession, and the outcome, to be argued, will be watched with interest.