Surprising alliance on campaign speech

One day in September 2009, Lanell Williams-Yulee, a lawyer in Florida, having decided to run for a seat in the county court in Hillsborough County, Fla., wrote and circulated a letter announcing her candidacy for judge and asking for contributions to her campaign.

Her letter garnered her no money, and she lost the election. But the letter did earn for her the attention of the Florida Bar, which regarded it as a violation of its rules. Specifically Canon 7(C)(1)), which expressly bans personal solicitation of funds by judges or candidates for judicial office. (California has no such rule.)

In constitutional terms, the rule prohibits certain speech on the basis of its content, which calls for the highest level of judicial scrutiny.

After a referee found her guilty of the violation, and the Florida Supreme Court affirmed, her request that the U.S. Supreme Court hear her argument that the rule violated the First Amendment of the U.S. Constitution was granted.

Here, Williams-Yulee lost again. The Supreme Court on April 29, in a 5-4 opinion, held that the Florida rule did not violate the First Amendment. Williams-Yulee v. Florida Bar.

Chief Justice John Roberts wrote for a majority that found him joining with the court's four liberal justices (Stephen Breyer, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan) over emphatic dissents spearheaded by Justice Antonin Scalia.

The basic principle at issue is that the regulation of speech by the government based on the content of the speech. The constitutional rule is that any such content-based regulation must meet the test of strict scrutiny: The state regulatory interest must be compelling, and the regulation itself must be narrowly tailored to serve that interest.

That's the basic rule, which both sides of the court decision accept. But this case takes place within the context of elections for judicial positions, which have always received special attention from the court.

Judges (and candidates for judgeships) differ from candidates for any other public office. They have traditionally been limited in what they are allowed by the law to say, lest they prejudge matters that may come before them or tarnish the image of the judiciary. For many years there were extremely narrow limits in many states, like those that came before the court in Republican Party of Minnesota v. White (2002).

Minnesota's rules prohibited judicial candidates from announcing their views on "disputed or political issues." The court found that the rule was a clear violation of the First Amendment's free speech mandate, and applied strict scrutiny. It found the state's asserted justifications for the rule (preserving the impartiality or the appearance of impartiality of the state's judiciary) constitutionally inadequate, and violated the First Amendment.Judicial elections have not been the same since.

The Florida Bar defended its rule on the ground that any direct personal solicitation by a judge or candidate diminished public confidence in the judiciary.

The court accepted this, finding that the public perception of judicial integrity was "a state interest of the highest order."

It distinguished solicitation by a committee on behalf of the candidate, which the bar permits, because the candidate is not "personally" asking for money. "In short, personal solicitation by judicial candidates implicates a different problem that solicitation by campaign committees." Presumably, the difference is essentially one of public perception.

Scalia's dissent is most emphatic. He begins with an absolutist view of the First Amendment, saying that absent "a long-settled custom of candidates' speech in general or their solicitations in particular," no basis exists for diminishing First Amendment protection.

His dissent points out that the candidates are allowed to know the identity of the donors to their campaigns, and to write thank you notes. This represents the worst kind of underinclusiveness, that is, regulating only part of a problem. Underinclusiveness, although not often fatal, can leave too much discretion with the enforcer of the law.

There is a lot more. The dissent attacks both the compelling interest as defined by the rule, and the element of narrow tailoring.

Moreover, Scalia concludes by pointing out that the court has in several cases applied the First Amendment strictly to protect unpopular speech. He cites the cases involving the Stolen Valor Act (Alvarez) and animal torture videos (Stevens), both of which take strong free speech positions. He leaves out Citizens United, which is, after all, a free speech case, but one which has not had the popularity among First Amendment advocates of the cases he cites.

The Roberts court has been consistent in allowing the use of money in politics, equating campaign contributions with free speech (Citizens United; McCutcheon). Roberts' shift causes the result in this case to counter that trend.

Judicial elections in general will be affected by this decision. Thirty-nine states elect some or all of their judges. The White case, mentioned above, adopted the view that if there are going to be elections, the candidates should be able to give the voters their views, so that an informed choice can be made.

Cases like Williams-Yulee highlight two attitudes towards judicial elections. Florida wants to limit expression that could reflect on the judiciary; Scalia, and the justices who agree with him (Clarence Thomas, Samuel Alito, Anthony Kennedy), want to use the First Amendment to allow the maximum of freedom of speech. And presumably, campaign contributions.

In Caperton v. A.T.Massey Coal Co. (2009), the court ruled that the due process clause required recusal of a judge because "extreme facts" created a "probability of bias." The case involved massive and disproportionate campaign contributions for one candidate for the state supreme court, which did in fact influence a pending case. The contributions, and the facts of the appeal, created an irresistible inference of undue influence.

That case was also decided by a 5-4 vote over Scalia's dissent.

Caperton is relevant because it highlights the ongoing split on the court whenever judicial elections are involved. Roberts spoke for restricting judicial candidate speech in Williams-Yulee's case, but he dissented in Caperton, in which the opinion was written by Kennedy, one of the Williams-Yulee dissenters. There is apparently a five-vote bloc prepared to limit the regulation of campaign speech.

(Florida Bar rules also limit the amount of money that can be contributed to a judicial campaign. That provision was not in issue.)

A much larger issue overhangs the case. Spending on judicial elections, particularly at the appellate level, has mushroomed in recent years. Concurring in Williams-Yulee's case, Ginsburg wrote that "huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants." Some state supreme court elections have involved specific issues.

At some point, the issue presented in miniature in Williams-Yulee's case will become entangled with the free speech issues in the court's campaign spending jurisprudence (Citizens United etc.). The result will have a major effect on the future of our system of justice.