April 27, 2011
First Amendment and Legislative Voting
The Supreme Court on Wednesday heard oral arguments in Nevada Commission on Ethics v. Carrigan, the case testing whether a state ethics law that restricts a city council member's vote on a matter violates the First Amendment.
The Nevada law at issue prohibits a public officer from voting on or otherwise advocating the passage or failure of a matter in which the "independence of judgment of a reasonable person" in that situation would be affected by "[h]is commitment in a private capacity to the interests of others." The law defines that "commitment" to include close familial and business relationships and "[a]ny other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection."
That last clause was at issue in the case.
The Nevada Supreme Court ruled that a public officer's vote was "speech," it applied strict scrutiny, and it ruled that the provision violated the First Amendment.
Arguments on Wednesday focused around two principal points. First, Justices were keenly interested in whether a legislative vote was covered by the First Amendment at all. Justice Scalia put the point most sharply early in the argument when he brought the discussion back to this threshold issue. Petitioner's counsel answered that the law here did not implicate the First Amendment and that it satisfied the viewpoint-neutrality requirement in R.A.V. v. City of St. Paul. But this answer only raised a chorus from Chief Justice Roberts and Justices Scalia, Breyer, and Kagan that if the First Amendment doesn't apply, R.A.V. isn't particularly helpful. (Justice Kagan: "If this is just conduct, if this is not proscribable speech of the kind that R.A.V. was talking about, why should we care about the viewpoint based doctrine that's arisen in First Amendment law.) Counsel seemed to confuse two distinct arguments--one that the vote isn't even speech (of any sort, protected or not), and one that even if it is speech the law is viewpoint neutral. The significant time spent on this point probably won't help the Court much at all.
But still there was some sympathy--even a lot of sympathy--on the bench for the idea that a legislative vote isn't First Amendment speech. Thus a good deal of the respondent's time was spent answering questions about just how far the First Amendment might intrude upon well established ethics restrictions on legislative and even judicial action. Chief Justice Roberts asked respondent's counsel, "So if the legislature adopts a rule that says from now on we're going to require a four-fifths majority for a bill to pass, that lowers the effectiveness of the speech of someone in the minority, and you can challenge that on First Amendment grounds?" Answer: No. Justice Scalia similarly asked about ethical rules that required recusal for judges. Again, counsel said that the First Amendment imposes no bar. But counsel didn't offer an entirely satisfying boundary for his position that the First Amendment prohibits Nevada's restriction, but not those restrictions.
And thus the second principal theme of the arguments: vagueness doctrine. The Court, again led by Justice Scalia, pressed hard on the vagueness point, suggesting that the clause at issue isn't at all clear to a reasonable person. But does the vagueness doctrine apply if the vote isn't even First Amendment speech? Answer by respondent's counsel: Yes. Here, Chief Justice Roberts offered perhaps the cleanest resolution to the case:
CJ Roberts: Is your vagueness argument, is that a First Amendment argument of its own?
Mr. Rosenkranz: It is a baseline vagueness argument on due process grounds, but it gets elevated because of the First Amendment interest.
CJ Roberts: So we can decide your vagueness--if we agree with you on vagueness, we don't have to determine whether the First Amendment applies in this type of situation?
Mr. Rosenkranz: Oh, that is correct, Your Honor, absolutely.
This may just be the key to the case: If vagueness doctrine would apply here (outside the First Amendment, and outside the criminal context, two areas where it typically applies), it could allow the Court to dodge the harder First Amendment questions and still overturn a law that by the end of the argument seemed anything but determinate, even to the Court, much less to a "reasonable person."
Questions also addressed the associational rights that might be chilled by the provision--the association between, e.g., a candidate and certain campaign workers that might fall into the provision and thus prevent the future public official from voting on a matter--and on the accompanying prohibition on advocacy for the passage or failure of a measure. The Nevada Supreme Court did not rule on these points, though, and it's not at all clear that the Court needs to (or wants to).
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