Court Monitor

Rare Loss for Free Speech

Free speech claims before the U.S. Supreme Court have almost always won in recent years. An unlimited right to sell violent video games to children, for example, was established by calling it free speech. The Court also recently struck down an overall monetary limit on campaign donations, by viewing it as free speech. And the Court invalidated, on free speech grounds, a federal law that punished people who lie about having received military honors, known as "stolen valor."

Citizens United, the decision on campaign finance that caused such a furor among liberals and even a rebuke by President Obama of Supreme Court Justices during the State of the Union address in 2010, was based on a constitutional right of free speech. A voting bloc of five on the Court -- the five most conservative Justices -- have repeatedly supported broader free speech rights in the political arena.

Until the end of April of 2015, that is. Chief Justice John Roberts shifted from the conservative to the liberal side in a case about whether States may prohibit judicial candidates from asking for donations in order to finance their campaigns in judicial elections.

In most states judges must stand for election. If a judge is a liberal, then he benefits from positive publicity and newspaper endorsements that liberals typically receive. But if a judicial candidate is a conservative or someone outside of the establishment, then he will need to raise and spend money in order to have a chance of winning.

Thirty states, including Florida, have laws that prohibit judicial candidates from asking for campaign donations. These laws make it more difficult for a candidate to raise enough money to overcome advantages enjoyed by a media-favored incumbent.

A sharply divided Supreme Court found that these laws do infringe on the First Amendment right of free speech, but that the infringement is justified by a compelling state interest in the appearance of judicial integrity. Williams-Yulee v. The Florida Bar, 2015 U.S. LEXIS 2983 (Apr. 29, 2015).

"Judges are not politicians, even when they come to the bench by way of the ballot," Chief Justice Roberts pompously declared in writing for himself and the four liberal Justices on the Court. "And a State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office," he added for the 5-4 Court.

State laws could simply require recusal by any judge who has asked for donations from a party before him, if there were a real concern about an appearance of impropriety.

The practical effect of this ruling is to prohibit direct mail solicitations by judicial candidates. Indeed, this case arose because a judicial candidate, who had served poor defendants as a public defender, had signed and sent out a direct mail solicitation asking for contributions between $25 and $500. The Florida state bar reprimanded her for that conduct, and fined her $1,860.

Justices Scalia, Kennedy and Alito each wrote separate dissents -- which is unusual -- and Justice Thomas joined Justice Scalia's dissent.


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