First Amendment Limits

First Amendment Limits

The prohibitions in Rule 4.1(A)(1) through (3) restrict political speech and association. A judge or judicial candidate may not act as a leader in, or hold an office in, a political organization; may not make speeches on behalf of a political organization; and may not publicly endorse or oppose a candidate for any public office.¹ One court has stated the premise behind such limits: courts do not belong in politics, judicial independence depends on that separation, and political ties and debts would demean and degrade the courts and ultimately corrupt them. The same passage concedes that the right of political participation, which judges relinquish on ascending the bench, enjoys constitutional protection.² That concession poses the question for this section: when may a State enforce a limit on campaign conduct against a person who is running for a judgeship?

The Supreme Court answers with strict scrutiny. Political speech lies at the core of the First Amendment, and the Court applies strict scrutiny when a state regulates the content of speech during an election campaign.³ The State must then demonstrate that its restriction furthers a compelling governmental interest and is narrowly tailored to that end.⁴ The interests are the ones the earlier sections developed, judicial impartiality and public confidence in the courts, so each challenge asks whether the rule fits its interest closely enough.

Two decisions mark the range of outcomes. In Republican Party of Minnesota v. White, the Court held, five to four, that Minnesota's announce clause, which barred candidates for judicial election from announcing their views on disputed legal or political issues, violated the First Amendment.⁵ In Williams-Yulee v. Florida Bar, the Court rejected a First Amendment challenge to Florida's ban on a judicial candidate's personal solicitation of campaign funds.⁶ The same demanding test applied in both, and the results differ because the announce clause fit its interests poorly while the solicitation ban fit its interest well. Strict scrutiny does not invariably end in invalidation.⁷

These decisions do not suspend the Model Code. The provisions of Rule 4.1 remain the baseline for an exam answer; the cases show which provisions are most likely to be vulnerable and why.

The Announce Clause Case

Republican Party of Minnesota v. White asked whether the First Amendment lets a State prohibit candidates for judicial election from announcing their views on disputed legal and political issues.⁸ The Minnesota Supreme Court had promulgated the prohibition, known as the announce clause, on the model of Canon 7(B) of the 1972 ABA Model Code of Judicial Conduct.⁹ The Court, in an opinion by Justice Scalia, held that the clause violates the First Amendment.¹⁰

The clause carried real penalties. A sitting judge who violated it faced discipline, including removal, censure, civil penalties, and suspension without pay. A lawyer running for judicial office had to comply as well, through the professional conduct rules, and risked disbarment, suspension, or probation.¹¹

Wersal, who ran again in 1998 for the office he had sought before, asked the Lawyers Board for an advisory opinion on whether it planned to enforce the clause. The Board answered equivocally: it had significant doubts about the clause's constitutionality but could not answer his question because he had not submitted a list of the announcements he wished to make. Wersal then sued in federal district court for a declaration that the clause violates the First Amendment and an injunction against enforcing it. He alleged that he had refrained from announcing his views during the 1998 campaign.¹²

The clause was broad. It prohibited a candidate from stating his views on any specific nonfanciful legal question within the province of the court he sought to join. The only exception was discussion of past decisions, and even that was barred if the candidate said he was not bound by stare decisis.¹³ The State answered that plenty of topics remained for the campaign trail: the candidate's character, education, and work habits, and how he would handle administrative duties. The Judicial Board had even printed a list of pre-approved questions, including how a candidate feels about cameras in the courtroom, how he would reduce the caseload, how the costs of judicial administration could be reduced, and how he would ensure that minorities and women are treated more fairly by the court system.¹⁴ A menu of permitted topics could not save a clause that excluded the legal and political questions the election was about. In the Court's words, “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign,” and the Court has never allowed the government to prohibit candidates from communicating relevant information to voters during an election.¹⁵

The Court treated the clause as a content-based restriction on core political speech, so the State had to show that it served a compelling interest and was narrowly tailored to that interest.¹⁶ The State's interest was impartiality, a word with more than one meaning, and the Court tested the clause against each.

The first meaning is the lack of bias for or against either party to the proceeding.¹⁷ The clause was not tailored to that interest, because it “does not restrict speech for or against particular parties, but rather speech for or against particular issues.”¹⁸ A candidate can state a view on a legal question without saying anything about which litigant he will favor.

The second meaning is the absence of any preconception for or against a particular legal view. The Court held that this is not a compelling interest, because it is “virtually impossible, and hardly desirable, to find a judge who does not have preconceptions about the law,” particularly since the Minnesota Constitution requires judges to be “learned in the law.”¹⁹ A State cannot call compelling a condition that qualified judges will almost never meet.

The third meaning is open-mindedness, the objective the respondents articulated in defending the clause.²⁰ As a means of pursuing it, the Court found the clause “so woefully underinclusive as to render belief in that purpose a challenge to the credulous,” because underinclusiveness diminishes the credibility of the government's rationale for restricting speech.²¹ Two facts drove that conclusion. Judges often state their views on disputed legal issues outside adjudication, in classes they conduct and in books and speeches, and the Minnesota Code, like the ABA Codes, not only permits but encourages this.²² And the clause restricted views only during the campaign, leaving the same statements lawful before and after it. The Court doubted that judges feel significantly greater compulsion to stay consistent with a nonpromissory statement made during a campaign than with one made before or after, and it thought the opposite likely in many cases: a mere statement of position during an election is no more binding on a judge, and no more costly to reconsider, than a carefully considered holding in an earlier opinion.²³ That reasoning addressed nonpromissory statements, so a candidate's promise raises a separate question.

The Court therefore held the announce clause unconstitutional, reversed the grant of summary judgment to the respondents, and remanded.²⁴ The clause reached a candidate's mere statement of position. It did not require him to bind himself to maintain that position after election.²⁵

A concurring opinion pointed to a remedy short of censorship. If a State believes that some candidate speech discloses flaws in the candidate's credentials, “democracy and free speech are their own correctives.” The legal profession, the legal academy, the press, voluntary groups, and civic leaders can use their own First Amendment freedoms to protest statements inconsistent with judicial neutrality and excellence.²⁶

Justice Ginsburg's principal dissent rested on a different view of what a judicial election is. It rejected the majority's approach that “an election is an election” and would distinguish elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office is to administer justice without respect to persons. Minnesota's choice to elect its judges, the dissent concluded, does not stop the State from installing an election process geared to the judicial office.²⁷ Judges, it explained, are not political actors: they do not sit as representatives of particular persons, communities, or parties, and they serve no faction or constituency. The dissent also relied on the Minnesota Supreme Court's statement that the goal of the State's provisions is an independent judiciary as free from political, economic, and social pressure as possible, and it found nothing in the majority opinion that explained why Minnesota could not pursue that goal in this manner.²⁸

The dissent made two further points. On the facts, Wersal had never been sanctioned under the clause for any campaign statement, so the clause had hardly stifled the robust communication of ideas and views from judicial candidate to voter.²⁹ And even when impartiality is defined in its narrowest sense, as the lack of bias for or against either party, the clause serves that interest: expressions that stress a candidate's unbroken record of affirming convictions for rape imply a bias in favor of the prosecutor and against a class of defendants, and prohibiting them serves the State's interest in both the appearance and the actuality of that form of impartiality.³⁰

Justice Stevens joined that dissent and wrote separately. He observed that it is the business of legislators and executives to be popular but the business of judges to be indifferent to unpopularity, because issues of law or fact in litigation should not be decided by popular vote. He also marked the limits of the holding: even if the Board may not sanction a candidate for announcing his views on issues likely to come before him, it may advise the electorate that such announcements show the speaker's unfitness for judicial office.³¹

The two sides disagree about whether a judicial election is the same kind of event as a legislative one. The majority treated a candidate's views on legal issues as political speech that the State had to justify, and the justifications failed. The dissenters treated a judicial election as different in kind, because judges serve no constituency. The premise that judges are not politicians, which the dissenters pressed here, reappears in Williams-Yulee, where the Court relied on it to explain why a State's interest in regulating judicial elections is compelling.³²

White decided the fate of a ban on announcing views and nothing more. Whether a State may forbid a candidate to pledge how he will decide cases is a separate question, and the constitutionality of the model rule against such pledges, Rule 2.10(B), remains uncertain after White.³³ The announce clause did not ask a candidate to bind himself to anything, so its fall does not answer that question.

The Solicitation Ban Case

Florida's Canon 7C(1) provides that those running for judicial office may not personally solicit campaign funds, although they may form committees to raise money for their campaigns.³⁶ In Williams-Yulee v. Florida Bar, the Supreme Court rejected a First Amendment challenge to that canon. The decision shows the strict scrutiny that doomed the announce clause producing the opposite result.

Lanell Williams-Yulee, who ran for a county court judgeship, sent county voters a letter asking for campaign contributions and posted the letter on her campaign website.³⁷ She admitted that she signed and sent the letter, and she argued that the First Amendment protects a judicial candidate's right to solicit campaign funds.³⁸ She lost the primary to the incumbent judge, and the Florida Bar charged her under its rule requiring judicial candidates to comply with the applicable provisions of Florida's Code of Judicial Conduct.³⁹ A referee recommended a public reprimand and $1,860 in costs, and the Florida Supreme Court adopted the recommendation. That court reasoned that the canon clearly restricts a judicial candidate's speech and must therefore be narrowly tailored to serve a compelling state interest, and it held that the canon satisfies that demanding inquiry.⁴⁰

Chief Justice Roberts delivered the opinion of the Court except as to Part II. Justices Breyer, Sotomayor, and Kagan joined the opinion in full, and Justice Ginsburg joined all but Part II. Justices Scalia and Thomas dissented together, and Justices Kennedy and Alito each dissented separately.⁴¹ The vote was five to four.⁴² Part II, which addresses the level of scrutiny, therefore drew only four votes, while the tailoring analysis that follows speaks for a majority.

The parties agreed that Canon 7C(1) restricts Yulee's speech on the basis of its content, because it prohibits her from soliciting contributions to her election campaign. They disagreed about the level of scrutiny.⁴³ The Bar looked to the looser “closely drawn” test used for contribution limits, as in Buckley v. Valeo. Its reliance on McConnell v. Federal Election Commission failed: the Court there found that the solicitation restrictions operated primarily to prevent circumvention of the contribution limits, and Florida did not adopt Canon 7C(1) as an anticircumvention measure.⁴⁴ The Court recognized that the Bar faced a demanding task. It is “the rare case” in which a State shows that a speech restriction is narrowly tailored to serve a compelling interest, but those cases do arise.⁴⁵ The State carries the burden of showing both the interest and the tailoring.⁴⁶

The State's interest was public confidence in the integrity of its judiciary. The Florida Supreme Court had described it as preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary,⁴⁷ and the Court agreed that the interest is compelling. The judiciary has “no influence over either the sword or the purse” and wields “neither force nor will but merely judgment,” so its authority depends in large measure on the public's willingness to respect and follow its decisions, and “justice must satisfy the appearance of justice.”⁴⁸

That interest differs from the interest in political elections. For legislative and executive candidates, the Court has said that “ingratiation and access . . . are not corruption,” because they embody the democratic principle that elected candidates can be expected to be responsive to their supporters.⁴⁹ Judges are different. “Judges are not politicians, even when they come to the bench by way of the ballot,” a State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office, and judges, “charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity.”⁵⁰ A State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, the Court added, because judges are not politicians.⁵¹

The harm is an appearance. Even if judges were able to refrain from favoring donors, the mere possibility that their decisions may be motivated by a desire to repay campaign contributions is likely to undermine public confidence. The risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting.⁵² The Court conceded that public confidence does not easily reduce to a precise definition or lend itself to proof by documentary record, but no one denies that it is genuine and compelling.⁵³

The principal dissent observed that bans on judicial candidate solicitation lack a lengthy historical pedigree. The Court did not dispute the fact and found it irrelevant. A history of regulation matters when a court decides whether to recognize a new category of unprotected speech, but no one argued that candidate solicitation is such a category, and the First Amendment fully applies to Yulee's speech. The question is whether the Amendment permits this particular regulation.⁵⁴

Yulee first argued that the canon restricts too little, because it lets a campaign committee solicit funds and lets a candidate write thank-you notes to donors.⁵⁵ Arguing that a law abridges too little speech is counterintuitive, but underinclusiveness can matter. It can raise doubts about whether the government is pursuing the interest it invokes or is disfavoring a particular speaker or viewpoint, and it can show that a law does not actually advance its interest.⁵⁶ In Church of Lukumi Babalu Aye, Inc. v. Hialeah, a ban on ritual animal sacrifice failed because the city left vast swaths of similarly harmful conduct unregulated. In Smith v. Daily Mail Publishing Co., a ban on newspapers, but not electronic media, releasing the names of juvenile defendants suggested that the law did not advance its purpose of protecting youth privacy.⁵⁷

The Court found no fatal underinclusiveness, for three reasons.

1. The canon aims squarely at the conduct most likely to undermine public confidence, personal requests for money by judges and judicial candidates. It applies evenhandedly to all judges and candidates, regardless of viewpoint or means of solicitation, and it is not riddled with exceptions.⁵⁸
2. Florida reasonably concluded that a candidate's personal solicitation creates a categorically different and more severe risk than a campaign committee's. A candidate who asks for money places his name and reputation behind the request, and the person asked knows that the signer of the fundraising letter might one day sign the judgment, which creates pressure to comply that a third party's request does not.⁵⁹
3. A thank-you note to a donor whom the candidate did not solicit does not undercut the State's interest, which is implicated most directly by the personal solicitation itself.⁶⁰

The Court read the exceptions as evidence about the State's purpose, not against it. They reflect Florida's effort to respect the First Amendment interests of candidates and contributors, and a State should not be punished for leaving open more avenues of expression rather than fewer, especially when nothing suggests a pretextual motive.⁶¹

The committee and thank-you-note allowances track a real difference in risk, since a committee's request does not carry the candidate's own name. An incumbent exemption has no comparable explanation on its face. A student testing a rule for underinclusiveness should ask what the exempted conduct has in common with the forbidden conduct, and whether a smaller risk or only a preference for certain speakers explains the exemption.

Yulee's second attack was that the canon restricts too much, so that it is not the least restrictive means of serving the State's interest.⁶² The Court answered that the canon restricts “a narrow slice of speech.” Candidates cannot say, “Please give me money,” but they can direct their campaign committees to do so, and the canon is surely not a “wildly disproportionate restriction upon speech.”⁶³ The majority also contrasted that slice with the picture painted in Justice Kennedy's dissent, which suggested that the Court had upheld a latter-day Alien and Sedition Acts approving “state censorship.”⁶⁴ The comparison with the announce clause is instructive. That clause removed discussion of disputed legal and political issues from the campaign, while this canon removes one kind of request.

The Court also rejected the argument that the canon reaches settings in which the State's interest is weak. Florida reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety. That interest “may be implicated to varying degrees in particular contexts, but the interest remains whenever the public perceives the judge personally asking for money.”⁶⁵ Most States with elected judges have concluded that the line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence, and the Court said those considered judgments deserve respect because they concern how States choose their judges.⁶⁶ Most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form. Florida concluded that all personal solicitations by judicial candidates create an appearance that undermines confidence, and banning all of them is narrowly tailored to that concern.⁶⁷

Who is asking decides the answer; how many people hear the request does not. That follows from the Court's statement that the interest remains whenever the public perceives the judge personally asking, and from its view that a State need not address only the most acute cases.⁶⁸

Yulee's last argument was that less restrictive means would serve the interest, namely recusal rules and contribution limits. Florida already limits contributions to $1,000 per election for a trial court candidate and $3,000 per retention election for a Supreme Court justice, and committee treasurers must report contributors and amounts.⁶⁹ The Court disagreed that these tools would suffice. A rule requiring recusal in every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions, and a flood of postelection recusal motions could erode public confidence in judicial impartiality and worsen the very appearance problem the State is trying to solve. A State may also decide that the threat from personal solicitation exists apart from the amount sought, so even a lower limit would leave in place the appearance that judges who personally solicit funds might favor their donors. The Court had never held that adopting contribution limits precludes a State from pursuing its compelling interests through additional means.⁷⁰

The Court closed by stating the balance it had struck. Judicial candidates have a First Amendment right to speak in support of their campaigns, and States have a compelling interest in preserving public confidence in their judiciaries. When a State adopts a narrowly tailored restriction like this one, the two principles do not conflict, and a State's decision to elect its judges does not compel it to compromise public confidence in their integrity. The Court declined to resolve the debate over whether judges should be elected and confined itself to applying the Constitution to the question presented.⁷¹

Step three is where answers most often go wrong. The tempting argument is that committee solicitation and thank-you notes are as damaging as the candidate's own request, so the ban must be a pretext. The Court's reply is that a personal request carries a different and more severe risk than a committee's, so the exceptions track the harm. Step four invites the opposite error, arguing that a broad or impersonal solicitation escapes the ban, when the interest does not shrink as the audience grows. Step five confuses who decides a case and how much a donor gives with the public sight of a judge asking.

Reading the Cases Together

Both White and Williams-Yulee required the State to justify its rule as narrowly tailored to a compelling interest, and in both the burden rested on the State.⁷³ Because the test was the same, the different results come from how well each rule fit its interest. That fit is the question to carry to any new rule.

The announce clause fit badly. It barred statements of view on disputed legal and political issues, which is core political speech, and it failed against each meaning of impartiality the State could offer: it was not tailored to preventing bias toward parties, freedom from preconceptions about the law was not a compelling interest, and as a protection of open-mindedness it was woefully underinclusive.⁷⁴ It also left most of the supposed harm untouched, because the same views stayed lawful before the campaign, after it, and in classes, books, and speeches.⁷⁵

The solicitation ban fit well. It reached a narrow slice of speech: candidates cannot say, “Please give me money,” but they can direct their campaign committees to say it.⁷⁶ It aimed squarely at the conduct most likely to undermine public confidence in judicial integrity, applied evenhandedly regardless of viewpoint or means of solicitation, and was not riddled with exceptions.⁷⁷

The judge's role also changes which interest counts as compelling. For legislative and executive candidates, access and ingratiation are features of democracy, not corruption. For judges, who must exercise strict neutrality and independence, personal solicitation of donors diminishes public confidence, and the maintenance of that confidence justifies impositions on the political speech of judicial candidates that would not be justified for candidates for any other office.⁷⁸ That difference alters the interest and leaves the demanding test in place. The Court acknowledged that cases in which a State carries its burden are rare, but those cases do arise.⁷⁹

A single letter can therefore contain a protected statement and a forbidden request, and the analysis runs separately for each. The solicitation decision says nothing in favor of a ban on issue speech, and the announce decision gives no protection to a personal request for money.

Neither decision supports a sweeping rule. White does not mean that every regulation of expressive activity in judicial elections fails a First Amendment challenge,⁸⁰ and strict scrutiny does not invariably result in invalidation.⁸¹ Not every restriction designed to preserve judicial impartiality and its appearance is vulnerable.⁸² Both decisions came by five to four, so state a prediction about a rule that resembles neither fact pattern as a likelihood and defend it with the four questions above.⁸³

Sorting the Model Code by these questions gives a rough map of where doubt lies. The ban on personal solicitation outside a campaign committee, Rule 4.1(A)(8), follows the design that Williams-Yulee upheld, since most States, like Florida, prohibit personal solicitation by judicial candidates while allowing them to raise money through committees.⁸⁴ The pledge provisions, Rule 2.10(B) for judges and its campaign counterpart, Rule 4.1(A)(13), forbid commitments inconsistent with impartial performance, and the constitutionality of Rule 2.10(B) remains uncertain after White.⁸⁵

The argument for a pledge ban is narrower than the argument White rejected. The announce clause reached a mere statement of position and did not require the candidate to bind himself to it after election.⁸⁶ A pledge rule targets the commitment itself. In In re Kinsey, the Florida Supreme Court found that the First Amendment did not protect a judicial candidate's statement of intent to “help law enforcement by putting criminals where they belong—behind bars!” It also found that the judge's pledges to victims of crime, “promising to bend over backward for them,” adversely affected her appearance of impartiality and fitness as a judge, with particular concern for criminal defendants and their lawyers, who would doubt their ability to face a fair and impartial tribunal.⁸⁷ The pledge rule thus starts with a better argument than the announce clause had, yet the Supreme Court has not resolved the question.

In 2003 the ABA added Rule 2.11(A)(5), which makes a judge subject to disqualification for a public statement, made as a judge or judicial candidate, that “commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.” The rule arose from concern about the effect of campaign promises on impartiality, but by its terms it is not limited to campaign-related commitments.⁸⁸ It reaches a commitment through its effect on the case the statement concerns, which makes it a natural companion to the pledge provisions when a fact pattern describes a candidate who promised a result in a matter that later arrives.

For an exam question that asks whether a candidate's conduct violates Rule 4.1(A), apply the rule as written. The constitutional cases matter most for content-based limits on what candidates say about cases and issues, with the pledge provisions the leading example; they do not displace the text of the other prohibitions.