There is now pending before the United States Supreme Court a highly significant case (Florida Bar) that will test the boundaries of free speech involving the right of judicial candidates to directly solicit funds from contributors for their election.
Lanell Williams-Yulee, a candidate for a trial court in Florida, signed and mailed a letter to kickstart her judicial campaign by personally soliciting contributions. Canon 7C(1), regulating the conduct of attorneys for the State of Florida, prohibits a candidate for judicial office from personally soliciting funds for his or her candidacy. An ethics complaint was filed against Williams-Yulee alleging a violation of Canon 7C(1), which prohibits personal solicitation of campaign funds by a candidate for any judicial office. She was found guilty of violating Canon 7C(1), was fined and reprimanded, which decision was affirmed by the Florida Supreme Court. The United States Supreme Court granted certiorari to resolve a conflict between jurisdictions.
The decision in the Florida Bar case will have a substantial impact in other jurisdictions because some 30 other states prohibit direct solicitation of campaign contributions by candidates for judicial office while nine other states allow direct solicitation by a candidate for a judicial office. Not since Citizens United has there been a case, which has the potential to impact the limits of free speech.
In order to regulate speech there must be a compelling state interest to support the law. If a law regulates core First Amendment protected speech it is subject to strict scrutiny, the highest possible legal standard making it extremely unlikely that law will be constitutional. If the law is overinclusive, underinclusive or is not narrowly drawn it will be struck down as unconstitutional. So to speak it is legal toast. After all you only have to miss one of the three categories in the test to fail. This is a formidable gauntlet, which First Amendment cases have to run – with a very low survival rate.
So what can we expect in the Florida Bar case? First, while a candidate can form a committee to solicit funds for his or her candidacy the candidate is absolutely prohibited from making a personal solicitation. Since it is an absolute prohibition it is less likely to survive. The proponents of the prohibition against personal solicitations argue that there is a vast distinction between a judge or prospective judge personally asking for funds then asking through a committee. This distinction may be lost on federal judges since they are appointed and do not have a sense of the coercion generated by a personal solicitation by a judge who may be hearing your case or cases.
A recent example of an absolute prohibition is the invalidation of a Missouri statute (Section 130.011 RSMo.) that created a 30-day blackout from the date a campaign committee is formed prohibiting a campaign committee from collecting or expending funds. It is difficult to figure out the purpose of the thirty-day blackout nor did the state even try to explain its purpose. In fact, the only plausible purpose would seem to be to prevent a last-minute surprise through the formation of a committee immediately prior to an election, which of course would constitute suppression of speech.
Section 130.011 RSMo., was found to be facially unconstitutional violating the right of free speech under the First Amendment. The District Court noted in its opinion that the United States Supreme Court has identified only one legitimate governmental interest for restricting campaign finances, which is to prevent corruption or the appearance of corruption. This statement would seem to support an argument that direct solicitation by a judicial candidate could create the appearance of corruption or improprieties. Certainly in the Florida Bar case there is a record showing that a number of judges have been removed from office by engaging in unethical conduct by direct solicitation of campaign funds leading to whole scale reforms pertaining to direct solicitation of contributions by judges or candidates for a judicial office in Florida.
A recent 8th Circuit Court of Appeals case involved the regulation of knowingly false speech about political candidates, which had a long history in Minnesota going back to 1893. In 2004, Minnesota amended the statute by providing that alleged violations must first be filed as a civil complaint with a three-judge panel (Panel) to determine if there is a prima facie violation and probable cause to support the complaint. The Panel, whose action is subject to judicial review, could impose a civil penalty of up to $5,000. Only when the Panel finally disposes of a complaint is the violator subject to criminal prosecution by the County Attorney.
The 8th Circuit Court of Appeals explained that the remedy to prohibit intentionally false statements about ballot issues resulted in less speech because the potential for filing charges inhibited speech. A less intrusive way to deal with false statements was to allow full and vigorous debate showing that the statements were false. Even in cases where the statements were false the statute was invalid because opponents used the statute as a political weapon by filing charges against the other party no matter how outlandish. An amicus brief filed by the State of Ohio showed that enforcement of a similar Ohio statute was impossible because by the time the administrative process was finalized the election had already been held. The Eighth Circuit recognized that the statute was not workable and counter productive thereby violating the First Amendment rights of the speakers.
The Florida Bar case will be close and no one at this point can predict its outcome as shown by the give and take in the transcript of the oral argument.
What has been noted in a number of Posts in this blog is that local government officials need to exercise caution when adopting ordinances that touch on free speech in order to avoid damages, costs and attorney’s fees.
Howard Wright © 2015
To view other Posts on this blog pertaining to right of free speech: Click on links below.