A slim victory for judicial campaign speech codes

Many states employ some sort of election to select at least some of their judges. These states historically have relied upon judicial speech codes — regulations that restrict what a candidate for judicial office (including a sitting judge running to keep her seat) can say — to protect the integrity and impartiality of the state’s judiciary. After holding unconstitutional a provision of a speech code in 2002, the U.S. Supreme Court revisited the constitutionality of judicial campaign speech codes this past week in Williams-Yulee v. Florida Bar, and this time upheld a judicial campaign speech code provision against constitutional attack. On reflection, however, this victory for judicial campaign speech codes is an exceedingly narrow one.

{mosads}In its 2002 decision in Republican Party of Minnesota v. White, the Supreme Court struck a blow at judicial speech codes, holding unconstitutional under the First Amendment’s guarantee of “free speech” a provision of the Minnesota code that prohibited judicial candidates from announcing their views on issues that might come before the bench. In the years since, lower courts heard numerous challenges to other types of judicial speech restrictions, striking down some provisions and upholding others.

This past week, in Williams-Yulee, the Supreme Court revisited the issue of judicial campaign speech codes for the first time since White. This time, the court upheld the restriction at issue — a Florida provision that prohibits judicial candidates from making personal solicitations for campaign contributions.

While Williams-Yulee technically registers as a victory for judicial campaign speech codes, it is an exceedingly narrow victory for two reasons. First, the majority opinion upheld only a narrow restriction on a judicial candidate’s personal solicitation of campaign contributions. Judicial campaign speech codes recognize that judicial elections can be costly affairs and accordingly allow campaign committees to raise funds on behalf of judicial candidates. Indeed, the majority opinion in Williams-Yulee noted the ability of others to solicit money on behalf of the candidate in upholding the personal solicitation restriction (and the freedom of judicial candidates to write personal thank-you notes to those who do choose to donate), reasoning that it would “not punish Florida for leaving open more, rather than fewer, avenues of expression.” In short, the court upheld only a narrow judicial campaign speech restriction, and in doing so it relied in part on the idea that other speech remained unrestricted.

Second, the justices widely embraced the application of “strict scrutiny” — that is, the most exacting form of judicial review, under which the government must both supply a compelling interest for its regulation and show that its regulation is “narrowly tailored” to the regulatory problem at issue — to determine the constitutionality of judicial speech code provisions. In White, only the five-justice majority explicitly endorsed the application of strict scrutiny. Moreover, one could argue that the court never actually held that strict scrutiny was required insofar, as the court specifically noted, as the parties themselves conceded the point. In Williams-Yulee, by contrast, the parties disagreed as to the applicable review standard, and almost all the justices affirmatively agreed that strict scrutiny governed. Chief Justice John Roberts’s majority opinion upheld the Florida speech restriction; his opinion for himself and three other justices found that strict scrutiny was the appropriate standard. Justice Ruth Bader Ginsburg joined the majority opinion, except for the portion that endorsed strict scrutiny; in a concurring opinion, Ginsburg argued for a less-exacting standard of review. And, though he joined the Roberts’s opinion in full (and also part of Ginsburg’s opinion), Justice Stephen Breyer in a separate concurring opinion advanced his view that standards of review are “not tests to be mechanically applied.” Beyond that, four dissenting justices agreed that strict scrutiny applied, and would have stricken the Florida provision.

Although Williams-Yulee upholds a judicial campaign speech restriction, the restriction it upholds is a narrow one and, moreover, it adopts a most exacting standard against which it holds judicial speech restrictions are generally to be measured. Going forward, states will have to offer a compelling state interest in regulating judicial campaign speech, and more importantly will have to demonstrate that their regulation is narrowly tailored to the problem at issue. To be sure, the court found compelling the state’s interest in preserving the integrity — and the public perception of the integrity — of the state judiciary. However, states will generally face difficulty in showing that their regulatory response to that goal is narrowly tailored and does not ban more speech than is necessary to achieve that goal. While the Williams-Yulee majority pointed out that narrow tailoring does not require perfect tailoring, still the strong First Amendment interest in election-related speech will not afford states much leeway. In the end, while Williams-Yulee casts the practice of restricting judicial campaign speech in a somewhat positive light, the light it casts is a narrow, faint beam. The future viability of judicial campaign speech restrictions remains quite cloudy.

Nash is professor of law and David J. Bederman Research Professor (2014-15) at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.