ACRU

Supreme Court Says Officials’ Speech Is Not Protected by First Amendment

This column by ACRU Senior Legal Analyst Ken Klukowski was published June 13, 2011 on The Washington Examiner website.

Nevada’s law barring public officials from voting–or officially speaking–for or against issues where they have a personal stake is okay under the First Amendment, according to the U.S. Supreme Court.

In Nevada Commission on Ethics v. Carrigan, the high court considered whether Nevada’s recusal statute for public officials violates those officials’ free speech rights.

The measure requires officials not to vote or advocate on matters where a family member or relationships with others that are “substantially similar” to family ties could profit from the official action.

City Councilman Michael Carrigan challenged the law. A lower Nevada state court found the law okay. The Nevada Supreme Court, however, struck it down for violating the First Amendment because the law is overbroad–meaning that it restricts protected speech.

The U.S. Supreme Court reversed the Nevada Supreme Court. Writing for eight justices, Justice Antonin Scalia explained that when a legislator votes, he is acting as a public official, not a private citizen.

Such a “vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”

Since the official cannot vote because he cannot use his public power for personal gain, it follows that he cannot speak on the chamber floor during legislative debate to urge his colleagues to vote for his personal gain.

This is a content-neutral restriction on the time, place and manner of speech. Such restrictions are subject to intermediate scrutiny, meaning they must be closely related to achieving an important public interest. Such interests are brought to bear by this conflict-of-interest rule.

The court considered very significant that recusal rules like Nevada’s were adopted by Congress both in the House and Senate around the time that the First Amendment was adopted.

The court has long held that such practices, contemporaneous with the adoption of the Constitution, are usually presumed to be consistent with the original meaning of the Constitution.

Scalia also disagreed with Justice Samuel Alito’s partial concurrence, where Alito agreed with Carrigan’s argument that sometimes votes are used to express deeply held beliefs.

Scalia sarcastically asked if legislative ballots ask you to check off a box next to one of the following statements:

I have a deeply held view about this; this is probably desirable; this is the least of the available evils; my personal view is the other way, but my constituents want this; my personal view is the other way; but my big contributors want this; I don’t have the slightest idea what this legislation does, but on my way in to vote the party Whip said vote “aye.”

The Supreme Court has held that when citizens sign a ballot measure it is a form of political speech. But again, that’s a right of private citizens, not public officials.

Scalia also wrote that it’s possible there might be constitutional problems with this law, but Carrigan did not raise them. If you don’t present those arguments, then you waive them.

Justice Kennedy concurred in the court’s opinion, writing separately to emphasize that much of Carrigan’s related speech–such as with constituents–is likely protected, but noted that those arguments were not made in this case.

And as noted above, Alito concurred in part of the opinion and voted to uphold the statute, but insists that legislative speech is still protected by the First Amendment.

Many states have similar recusal laws. They’re now on firmer footing after the Supreme Court unanimously upheld Nevada’s law.