FAN 59 (First Amendment News) Williams-Yulee — The Ruling Few Expected . . . & the One Few Will Remember
Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover. —Alan Morrison (May 4, 2015)
Let’s begin with the numbers: Williams-Yulee v. The Florida Bar is the
- thirty-eighth free expression opinion rendered by the Roberts Court;
- the eighth case during the Chief Justice’s tenure involving elections and campaign funding;
- the ninth five-four split in a Roberts Court free expression case;
- the sixth five-four split in a campaign-finance case; and
- the first of four First Amendment free expression cases the Court has agreed to review this Term.
Two more facts:
- Williams-Yulee is the thirteenth majority (plurality re Part II) opinion by the Chief Justice — he has authored more majority opinions in the First Amendment free speech area than anyone else. Justices Anthony Kennedy and Antonin Scalia are next in line with five each.
- Finally, it bears noting that this is the second time the Chief Justice Roberts has found a compelling state interest sufficient to trump a First Amendment claim. See Holder v. Humanitarian Law Project (2010).
Okay, enough with the numbers.
Question: Just how important is the Chief’ Justice Roberts’ Williams-Yulee opinion?
Answer: Not very, for the most part, that is. Here is why I say so — aided by some of the insights offered by my friends and colleagues who participated in the SCOTUSblog symposium (see listing below) on Williams-Yulee. I also offer a few related observations.
Seven ways to think about Williams-Yulee . . . & then forget about it:
- The Good for One Time Only Holding: Yes, John Roberts jumped ship in a First Amendment case and broke ranks with the “tenacious trio” (Scalia, Thomas, and Alito). But don’t count on that happening again unless you believe in the GOD of SUPREME COURT MIRACLES. And don’t expect strict scrutiny to be so relaxed in future First Amendment cases. By the same token, don’t assume that a majority will settle for such a wide fit when it comes to applying the narrowly tailored doctrine in any other First Amendment free expression cases (national security, government employee speech, and student speech excepted).
- Limited to the Facts of this Case Only: For all the ink spent on safeguarding public confidence in the integrity of elections, know this: Williams-Yulee is likely to confined to the particular facts of the case — and not a comma beyond it. With that in mind, consider the fact that this was a case of a judicial candidate personally soliciting campaign funds. It was not a case of a PAC or a corporation or a wealthy donor doing likewise in order to support that same judicial candidate. Or even hosting a fundraising event for such a judicial candidate, replete with that candidate present. Nor was it a case of a judicial candidate making campaign promises as to how he or she would rule in a general class of cases.
- A New Holding that Bows to an Old One: The rule of Republican Party of Minnesota v. White (2002) — the case that James Bopp, Jr., successfully argued and the one in which Justice Scalia wrote for the majority — will likely continue to be the First Amendment mainstay in most, if not all, other judicial election cases.
- The Judicial Elections Exception to the First Amendment: As evidenced by what it did in United States v. Stevens (2010) and in Brown v. Entertainment Merchants Association (2011), the Roberts Court has sometimes clung to the notion that speech is at least presumptively protected unless it falls into some category of historically unprotected expression. On that very point, Justice Scalia’s dissent (joined by Justice Thomas) took issue with the majority opinion: “Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation. (citation omitted). No such tradition looms here.” As Ilya Shapiro pointed out, we now have a new exception to the First Amendment, which brings the number to 44 exceptions depending on how you count them.
- The Reinvigoration of Disclosure Requirements: One ongoing question in the campaign-finance First Amendment arena is the extent to which the Roberts Court will uphold various disclosure requirements. On this important point, Justice Kennedy (writing for himself alone) noted: “Indeed, disclosure requirements offer a powerful, speech-enhancing method of deterring corruption – one that does not impose limits on how and when people can speak. He then added: “‘Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.’ Based on disclosures the voters can decide, among other matters, whether the public is well served by an elected judiciary; how each candidate defines appropriate campaign conduct (which may speak volumes about his or her judicial demeanor); and what persons and groups support or oppose a particular candidate.” Question: Will all this praise of disclosure requirements be confined to the narrow facts of Williams-Yulee? Stay tuned!
- More Free-Speech Protections Under State Constitutions? It is one of the cornerstones of federalism: A state Court may rely on its own constitution to provide greater rights than those guaranteed under the Federal Constitution, provided it does not violate any federal laws. By that constitutional measure, assume that, say, Arizona had a law identical to the one sustained in Williams-Yulee. Assume furthermore that the state high court in considering the constitutionality of that law under its state constitution concluded that the law was not narrowly tailored and thus struck it down. Assuming that the independent and adequate state grounds doctrine were satisfied, a state court might well take its analytical cue from the dissenters in Williams-Yulee (much as liberal state court judges once took their cue from the dissenting opinions of Justices Brennan and Marshall during the Burger and Rehnquist Court eras).
- Does it All Come Down to Recusals and Due Process Challenges? Given the problems that arise when judges run for election, it may be that the only road to fairness, consistent with the demands of the free speech provisions of the federal and state constitutions, are stronger recusal rules and a fortified version of the due process claim sustained in Caperton v. A.T. Massey Coal Co. (2009). In this regard, it is important to note, as the Caperton majority did, that the objective standards of due process do not require proof of actual bias.
A Different View of Williams-Yulee
As with anything in the First Amendment world, others have a different take on Williams-Yulee and see it as significant and even a a sign of things to come: “Roberts’ authorship of the decision was pivotal, and not just because he is chief justice. Roberts has overseen a trend during his tenure toward loosening restrictions on campaign speech and money on First Amendment grounds,” is how Tony Mauro saw it. And as Professor Rick Hasen told Mauro: ““This is a huge win for those who support reasonable limits on judicial elections, and getting [Chief Justice John] Roberts on this side of the issue is surprising, welcome, and momentous.”
Contributors to SCOTUSblog symposium on Williams-Yulee
- Ronald Collins, “Foreword: Are elected state judges now ‘above the political fray’?“
- Floyd Abrams, “When strict scrutiny ceased to be strict“
- Jessica Ring Amunson, “A rare case indeed“
- Lawrence Baum, “The Justices’ premises about judicial elections“
- Robert Corn-Revere, “For Judges Only“
- Robert D. Durham, “Yes, it can hurt just to ask“
- Joseph Grodin, “The distinctive character of judging“
- Ilya Shapiro, “The judicial-elections exception to the First Amendment“
- Matthew Streb, “Much ado about nothing?“
- Josh Wheeler, ““Seem familiar?” and other random musings on Williams-Yulee“
→ See also, Alan Morrison, “Williams-Yulee – The ruling with no real-world impact,” Concurring Opinions, May 4, 2015
Pamela Geller — Free Speech’s Controversial Defender
She is an articulate defender of free speech / she is a political firebrand / she is an unabashed self-protmoter and media persona / she is a fearless blogger / she is the co-author of The Omama Administration’s War on America (2010) / she is the president of the American Freedom Defense Initiative / she actively leads various “violent jihads” campaigns / and she is one of the co-founders of Stop Islamization of Nations. Read More