While we may not agree with all speech we come across, it is important for liberty-minded individuals to defend all constitutionally protected speech. If we do not protect speech that we may not agree with, or that is of limited importance to us, there will be fewer people willing to defend speech that we care deeply about. Also, once the Supreme Court rules some speech can be restricted and still withstand constitutional scrutiny, it becomes easier for the Court to rule other speech can be restricted as well.
On January 20 the Supreme Court heard oral arguments in the case of Williams-Yulee v. The Florida Bar. This case is important because the petitioner (Williams-Yulee) is appealing to the Supreme Court to protect her free speech right to personally ask for campaign funds when running for judicial office. This case is especially important because around half of the states currently ban personal solicitations by judicial candidates and there is a split within the state and circuit courts over whether the First Amendment allows such bans.
The origin of this case was Hillsborough County (Tampa) Florida in 2009, when Lanell Williams-Yulee decided to run for a judicial position in the county. As part of her campaign, she approved and signed a mass mailing that asked for funds to help her run her campaign. The Florida Bar deemed that by doing so she violated a rule against “personally soliciting campaign contributions.” The Referee handling the case decided that she should be publicly reprimanded and pay around $1,800 to cover the costs of bringing the case against her.
The case was then appealed to the Florida Supreme Court where Ms. Williams-Yulee argued the ban on personally soliciting campaign funds improperly limited her right to free speech. The Florida Supreme Court agreed that the ban clearly did restrict free speech but ruled against Ms. Williams-Yulee because the ban passed their strict scrutiny test.
To pass strict scrutiny the ban must be narrowly tailored to serve a compelling state interest. The Court ruled that the ban served two compelling state interests. First, that the ban preserves the integrity of the judiciary. Second, that the ban maintains the public’s confidence in an impartial judiciary. The Court ruled that the ban was narrowly tailored because it only restricted personal solicitations, while allowing the judicial candidate to set up campaign committees to raise funds.
There were a couple important issues that came up during the oral arguments before the Supreme Court. First, was the importance of drawing a distinction between the judicial candidate personally requesting funds and a committee member speaking for, and naming, the judicial candidate in a letter asking for funds. Justices Sotomayor and Breyer argued that there is a great difference between the two, that personal solicitations are much more likely to be responded to and are coercive. On the other hand, Chief Justice Roberts and Justice Scalia felt that the distinction is minimized when the committee member mentions the candidate by name and makes it known that the candidate would send a thank you for the contribution. Next, there was an argument over whether the Court should apply strict scrutiny, as the Florida Supreme Court did, or some lesser scrutiny, such as closely drawn scrutiny. While this issue was not fleshed out during oral arguments, it will be interesting to read about once the Court issues its opinion.
Moving on from the legal background and arguments surrounding the case, there is another significant aspect of this case to keep in mind. While it is understandable that some would want to limit campaign financing by judicial candidates, it must be noted that judicial candidates have the same First Amendment protections the rest of us possess. It is certainly important that the judiciary keeps its integrity and remains impartial in the public’s eye, but once states opt for judicial elections the candidates receive full free speech protection which includes the ability to personally solicit funds. While it may not seem important to many of us if judicial candidates are not allowed to personally solicit funds, next week they could try to restrict speech that is important to you personally. For this reason we must defend all speech which is protected by the First Amendment from government restrictions.