FAN 15 (First Amendment News) — Free Speech & Judicial Elections: The Return of Kaus’ Crocodile

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If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Wolfson v. Concannon (9th Cir., May 9, 2014). The issue: whether several provisions in the Arizona Code of Judicial Conduct (Canon 4) restricting judicial candidate speech run afoul of First Amendment protections. Held: Yes, but only as to non-incumbent judicial candidates. The vote: 1-1-1. Judge Richard A. Paez wrote the main opinion, Judge Marsha S. Berzon wrote a concurring opinion, and Judge Richard Tallman dissented in part.

Anita Y. Woudenberg argued on behalf of the Appellant, Kimberly A. Demarchi argued on behalf of the Arizona Bar Association, and Charles A. Grube, Assistant Attorney General in the Arizona Attorney General’s Office, argued on behalf of the Appellees. The case, of course, revisits the Supreme Court’s 5-4 holding in Republican Party of Minnesota v. White (2002). (BTW: The White case was successfully argued by James Bopp, Jr., with whose firm Ms. Woudenberg is affiliated.)

Judge Paez began his opinion on a rhetorical high note: “A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech. The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process.”

Justice Otto Kaus (1920-1996)

Justice Otto Kaus (1920-1996)

 By contrast, Judge Berzon opened by way of echoing a cautionary metaphor: “Sitting for judicial election while judging cases, Justice Otto Kaus famously quipped, is like “brushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub.”

As for Judge Tallman, he was more direct: “I agree with the majority that strict scrutiny . . . is the appropriate standard. I agree that we should limit our decision to non-incumbent judicial candidates. And I agree that Rules 4.1(a)(5) (campaigning for others) and 4.1(a)(6) (personal solicitation) are unconstitutional as applied to those candidates. I concur in the majority opinion only on those points. I part company with my colleagues as to Rules 4.1(a)(2) (giving speeches on behalf of others), (3) (endorsing others), and (4) (soliciting money for others).”

Three judges, three opinions. Still, they all agreed that the rules prohibiting speechifying, endorsements, and fundraising “present the closest question.”

The 7th Circuit, by comparison, upheld a similar set of laws in Siefert v. Alexander  (2010) and in Bauer v. Shepard (2010). Those cases employed a Pickering balancing test instead of strict scrutiny. And those cases, unlike Wolfson, involved campaign restrictions on elected sitting judges rather than on a non-incumbent candidate running for a judicial office. As to the appropriate standard of review, in his White concurrence, Justice Anthony Kennedy, who voted with majority, declared: “Whether the rationale of Pickering and Connick v. Myers (1983), could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice, is not an issue raised here.”

 Judge Berzon duly stressed the limited scope of the Court’s ruling:In sum, the principles applicable to the constitutionality of political restrictions on sitting judges diverge dramatically from those we apply to today’s challenge to restrictions on a judicial candidate not now a judge. The standard of review may well differ. And the powerful interests supporting such restrictions differ, too. I need not address, as the issue is not before us, whether the particular restrictions we review today would be constitutional as applied to sitting judges.”

More on this case as things develop.

First Amendment Cases Awaiting Decision 

The following First Amendment freedom of expression cases are awaiting a decision by the Supreme Court:

First Amendment Cases Already Decided

The following First Amendment freedom of expression case was handed down by Supreme Court this Term:

Related Cases, see also

Forthcoming Event on McCutcheon Case

On Wednesday June 18th @ noon the Cato Institute will host a program entitled “McCutcheon v. FEC: Two Books on the Supreme Court’s Latest Campaign Finance Case.” The event will feature:

The discussion will be moderated by Ilya Shapiro, a Senior Fellow in Constitutional Studies, Cato Institute.

Here is a description of the program:

Shaun McCutcheon (photo credit: NYT)

Shaun McCutcheon (photo credit: NYT)

On April 2, the Supreme Court issued its latest blockbuster ruling on campaign finance, McCutcheon v. FEC, striking down the “aggregate” contribution limits on how much money any one person can contribute to election campaigns (leaving untouched the “base” limits on donations to individual candidates or party committees). Within days of the decision, while pundits and activists were still battling in the media, two e-books were published about the case. One was by Shaun McCutcheon himself, an Alabama engineer who has quickly gone from political neophyte to Supreme Court plaintiff, thus providing a rare first-person layman’s account of high-stakes litigation. The other was by two law professors specializing in First Amendment law, Ronald Collins and David Skover, who dissect the Court’s ruling and put it in the broader context of campaign finance regulation.

 To register to attend this event, click the button below and then submit the form on the page that opens, or email events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by noon on Tuesday, June 17, 2014.

Recent Event on McCutcheon Case

In case you missed the Center for American Progress’ event yesterday, you can view the YouTube feed here. The topics and participants are listed below:

Introduction: Neera Tanden, President, Center for American Progress

Keynote Address: Lee Saunders, President, American Federation of State, County and Municipal Employees

Panelists: Jedediah Purdy, Robinson O. Everett Professor of Law, Duke University, Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Nicole Berner, Associate General Counsel, Service Employees International Union

Moderator: Ian Millhiser, Senior Constitutional Policy Analyst, Center for American Progress

[ht to Paul Zeitz]

Forthcoming Books

Robert Post

Robert Post

→  Also, as we get into the fall I will say more about this next book, but I think it important enough to note a few things about it now. The book is by Professor Seana Valentine Shiffrin and is entitled Speech Matters:On Lying, Morality, and the Law (Princeton University Press, December 2014).  Here is how the publisher describes it:

To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.

 Drawing on legal as well as philosophical arguments, the book defends a series of notable claims–that you may not lie about everything to the “murderer-at-the-door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.

 Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.

In light of cases such as United States v. Alvarez (2011) and Susan B. Anthony List v. Driehaus (ruling pending), among others, this book is sure to be timely. Stay tuned.

Linde Law Clerks Host 90th Birthday Tribute

Justice Hans Linde

Justice Hans Linde

Oregon Supreme Court Justice Hans Linde (ret.) and his wife Helen celebrated his 90th birthday with friends and former clerks in Portland, Oregon this past weekend. The event, held at the Sentinel Hotel, was organized by Judge Rex Armstrong of the Oregon Court of Appeals and moderated by Judge David Schuman (ret.) of the same court.

In addition to being the “intellectual godfather” of the state constitutional law movement, Justice Linde is also known for his various writings and judicial opinions on free speech, including:

→ See also, Rex Armstrong, “Free Speech Fundamentalism – Justice Linde’s Lasting Legacy,” 70 Or. L. Rev. 855 (1991)

Quick Hits

Next Scheduled FAN Column: May 21st, Wednesday.

Last Scheduled FAN ColumnWhy the Justices vote as they do in First Amendment Free Expression Cases

Last FAC Column: Steve Shiffrin, the Dissenter at the First Amendment Table

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