No. 07-7965
_______________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2007
_________________________________________
GERTRUDE C. CHASE, CHAIR, NEW COLUMBUS ELECTION BOARD, ET AL.,
Petitioner,
v.
NEW COLUMBUS DEMOCRATIC PARTY, ET AL.,
Respondent.
_________________________________________
On Writ of Certiorari
To the United States Court of Appeals
for the Fourteenth Circuit
BRIEF
FOR
RESPONDENT
TEAM 4589,
Attorneys for Respondent
TABLE OF CONTENTS
TABLE OF AUTHORITIES......................................................................................................... ii
STATEMENT OF THE CASE ...................................................................................................... 1
SUMMARY OF THE ARGUMENT ................................................................................................. 4
ARGUMENT ..................................................................................................................................... 7
I.
THE COURT SHOULD AFFIRM BECAUSE NEW COLUMBUS HAS
UNCONSTITUTIONALLY RESTRICTED JUDGES AND JUDICIAL CANDIDATES
BY PROHIBITING THEM FROM ATTENDING OR SPEAKING AT POLITICAL
PARTY GATHERINGS, IDENTIFYING THEMSELVES AS MEMBERS OF A
POLITICAL PARTY AND SEEKING, ACCEPTING OR USING POLITICAL
PARTY ENDORSEMENTS IN VIOLATION OF THEIR FIRST AMENDMENT
RIGHTS. .................................................... 7
A.
Strict Scrutiny is the Appropriate Test To Measure The
Unconstitutionality of the Challenged Regulations .......... 7
B.
The New Columbus Regulations Fail to Satisfy the Strict
Scrutiny Test .............................................. 9
C.
Conclusion ........................................... 20
II. THE COURT SHOULD AFFIRM BECAUSE THE NEW COLUMBUS CANON
THAT PRECLUDES JUDGES AND JUDICIAL CANDIDATES FROM PERSONALLY
SOLICITING CAMPAIGN CONTRIBUTIONS IS INCONSISTENT WITH THE
FIRST AMENDMENT BECAUSE IT BARS THEM FROM (1) SIGNING LETTERS
REQUESTING CAMPAIGN CONTRIBUTIONS, AND (2) MAKING APPEALS FOR
CAMPAIGN CONTRIBUTIONS TO “LARGE GROUPS” OF INDIVIDUALS. .. 20
A.
New Columbus Canon Restricting Personal Solicitation and
Solicitation of Large Groups is a Restriction of the
Fundamental Right to Free Speech, and Thus it Must Withstand
Strict Scrutiny Analysis. ................................. 21
B.
The Ban on a Candidate Personally Signing Solicitation
Letters and the Mandated Committee Forces a Candidate to
Relinquish to Third-Parties His Constitutional Right. ..... 27
III. CONCLUSION ............................................. 29
i
TABLE OF AUTHORITIES
Cases
Bartnicki v. Vopper, 532 U.S. 514.............................. 8
Buckley v. Valeo, 424 U.S. 1.............................. 14, 24
Carey v. Brown, 447 U.S. 455................................... 8
Carey v. Population Serv's, Int'l, 431 U.S. 678............... 21
Cent. Hudson Gas v. Pub. Serv. Comm’n, 447 U.S. 557....... 26, 27
City of Ladue v. Gilleo, 512 U.S. 43.......................... 11
Erznoznik v. Jacksonville, 422 U.S. 205....................... 14
Eu v. San Francisco County Democratic Cent. Comm'n., 489 U.S.
214 ......................................................... 22
Florida Star v. B.J.F., 491 U.S. 524................... 9, 10, 11
Gitlow v. New York, 268 U.S. 652.............................. 20
Goldman v. Weinberger, 475 U.S. 503....................... 17, 19
Lawrence v. Texas, 539 U.S. 558............................... 21
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334........ 7, 22, 25
Minnesota v. White, 536 U.S. 765.......................... passim
Palko v. Connecticut, 302 U.S. 319............................ 28
Police Dep't of Chicago v. Mosley, 408 U.S. 92................. 8
Renton v. Playtime Theatres, Inc., 475 U.S. 41................. 7
Republican Party of Minnesota v. Kelly, 247 F.3d 854.......... 14
Sable Commc’ns v.FCC, 492 U.S. 115............................. 9
Talley v. California, 362 U.S. 60......................... 25, 26
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622.............. 8, 10
United States Civ. Serv. Comm'n v. Nat'l Ass'n of Letter
Carriers, 413 U.S. 548 ...................................... 12
United States v. Playboy Entm't Group, 529 U.S. 803........... 17
United States v. Schwimmer, 279 U.S. 644...................... 28
Wisconsin v. Yoder, 406 U.S. 205........................... 9, 10
Wood v. Georgia, 370 U.S. 375................................. 14
Statutes
5 U.S.C. 7321................................................. 13
Other Authorities
J. Jud. Advisory Comm. to the S. Ct. of N. Col., Final Notes of
the Comm. Secretary on Canons 1-7 of the Code of J. Conduct ( 11
Rules
Canon 2....................................................... 14
Canons 1-3.................................................... 21
Treatises
Richard Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267 10
Constitutional Provisions
U.S. Const. amend. I.......................................... 20
U.S. Const. amend. XIV........................................ 28
ii
STATEMENT OF THE CASE
In March of 2001, Arthur Crandell, a well-known Democratic
Party activist, declared his intention to run for the position
of Associate Justice of the Supreme Court for the State of New
Columbus.
R. at 9.
New Columbus has elected its Supreme Court
Justices since at least 1920.
R. at 14.
Judges and judicial
candidates must abide by the New Columbus Code of Judicial
Conduct (hereinafter “Code”).
R. at 7-8.
The Code’s strict
regulations place several burdensome restrictions on the First
Amendment rights of judges and judicial candidates.
R. at 7.
Possible infringements of the Code are investigated by the
Election Board (hereinafter “the Board”).
R. at 8.
Upon a
finding that a violation occurred, the Board may impose
penalties as drastic as removal from office or disbarment.
Id.
In August of 2001, Crandell withdrew his candidacy because an
opponent filed a complaint against him for violating the antipartisanship and anti-solicitation clauses of the Code.
9.
R. at
Because Crandell withdrew, the Election Board considered the
case moot and dismissed the complaint.
Id.
In March of 2007, Crandell again considered running for a
seat on the state’s Supreme Court.
R. at 9.
Before declaring
his candidacy Crandell sought an advisory ruling from the Board.
R. at 9-10.
Believing that the anti-partisanship and anti-
solicitation clauses were unconstitutional, Crandell sought to
1
ascertain whether the Board would enforce the restrictions
against a candidate who: spoke as a candidate to political
organization gatherings; pursued, accepted or publicized their
endorsement(s) by one or more political party organizations;
personally solicited contributions from party members present at
political party organization functions; and/or personally
pursued private campaign contributions by letter or in person to
large groups of persons (50 or more) assembled at events
organized by state and local political parties.
Id.
On March 16, 2007, the Board issued an advisory opinion
which stated that each of the activities listed in Crandell’s
letter would likely violate the provisions of the Code and
subject him to enforcement proceedings.
R. at 10.
On May 1, 2007, Crandell announced his candidacy for a seat
on the New Columbus Supreme Court.
R. at 10.
Crandell named a
former Democratic governor, a former Democratic Party chairman,
and a former Democratic state senator to his campaign committee.
Id.
Crandell sought and received an endorsement from the state
Democratic Party, and he signed letters under his own name
requesting contributions.
R. at 11.
However, Crandell never
saw a list of who contributed to his campaign.
Id.
He made
personal appeals to people to donate to his campaign, he
attended “meet the candidate” events at Democratic Party
gatherings, and conducted other normal campaign activities.
2
Id.
On August 1, 2007 the Board informed Crandell that an
investigation had commenced because the Board had received
information that Crandell may have violated the Code.
R. at 11.
The Board asked for several documents, and Crandell complied
with each of the requests.
Id.
On August 17, 2007, Crandell, the State Democratic Party,
and two municipal Democratic Party committees filed the instant
action seeking declaratory relief and injunctive action
preventing enforcement of the restrictions included in Canons 13 of the Code.
R. at 11-12.
Following an expedited hearing,
the district court upheld the constitutionality of the Code’s
provisions based on the belief that “a candidate’s association
with a political party would necessarily undermine the reality
and perception of the courts as neutral and impartial.”
13.
R. at
The court stayed the decision pending resolution of the
merits and Crandell and the other declarants took an appeal.
The Fourteenth Circuit held that the anti-partisan regulations
were not narrowly tailored and that the personal solicitation
restrictions neither advanced a compelling interest nor were the
least restrictive means available.
R. at 6-7.
Accordingly, the
Fourteenth Circuit Court of Appeals reversed the decision of the
district court.
Id.
New Columbus now appeals.
3
SUMMARY OF THE ARGUMENT
The First Amendment protects a citizen’s right to free
speech.
A state may not infringe on this right because the
Fourteenth Amendment incorporated the First Amendment to make it
binding on the states.
The right to free speech has been deemed
to be a fundamental right of every citizen.
When the government
seeks to infringe that right, the statute or regulation must be
able to withstand strict scrutiny.
To withstand strict scrutiny
the state must show a compelling interest, and the law must be
narrowly tailored and infringe on as little speech as possible.
New Columbus has an elected judiciary.
In the estimation
of the State, an elected judiciary is better, but open to
corruptive influences, namely money and partisanship.
To combat
this the State passed a Judicial Code that judges and judicial
candidates must adhere to.
However, the regulations do not pass
strict scrutiny.
The anti-partisan regulations do not advance a compelling
interest under the strict scrutiny test.
The interest sought,
the prevention of bias is not an interest that is more important
than allowing candidates in an election of utilize the most
fundamental and highly protected right, the ability to speak on
political issues.
The regulations chosen also do not show a
clear nexus with the interest asserted further eroding the
interest’s importance.
The regulations result in an under4
inclusive scheme that solely seeks to eliminate some of the
involvement of parties (such as acknowledgement of party
membership, endorsements, and party appearances) rather than the
actual ills sought to be prevented.
Bias can still be achieved
in a number of ways, thus leaving the interest weakened.
The regulations also fail to be narrowly tailored because
they do not include essential regulations that are the least
restrictive means available and the regulations burden more
speech than is necessary.
Since the regulations do not advance
a compelling interest and are not narrowly tailored the antipartisan regulations are unconstitutional.
The New Columbus Solicitation Clause also restricts speech. It
bans the solicitation of large groups and bans a candidate from
personally signing solicitation letters, both forms of speech,
therefore the law must pass strict scrutiny to be valid.
Even if the Court was to hold that a compelling state
interest exists, the rules are not narrowly tailored to achieve
that interest.
The rules unnecessarily restrict speech when
alternative means are available, and the means which the state
uses to achieve its end fall far short of protecting the
asserted interest.
An alternative would be for the state to
enforce “donor side” policies by penalizing those who reveal the
identity of a donor or one who refused to donate.
Because the
Court has held that the protected speech interest in campaign
5
contributions is marginal, a restriction on this marginal
interest would be more narrowly tailored to achieve the end
without limiting the speech of the candidate.
This Court has
also upheld the right to publish anonymously, and it would stand
to reason that a right to speak anonymously would also include
the right to publish freely under one’s name.
Even if the Court applied its test for restricting
commercial speech, which arguably allows for more infringement,
the suppression here would not be constitutionally sound because
it would still restrict more speech than is necessary to achieve
a “substantial” interest.
The regulations here cannot even
withstand the scrutiny under the test for commercial speech.
Because the regulation forces a candidate to solicit
through a committee, the rules force the candidate to relinquish
to a third-party a fundamental right.
By restricting a
candidate from soliciting contributions outside of the
prescribed manner and forcing him to utilize a committee, the
state is limiting any fundraising and speech that a candidate
may undertake until there are others willing and able to serve
on a committee.
A candidate’s right should not be predicated
upon first finding others to serve as proxies to exercise a
fundamental right.
6
ARGUMENT
I.
THE COURT SHOULD AFFIRM BECAUSE NEW COLUMBUS HAS
UNCONSTITUTIONALLY RESTRICTED JUDGES AND JUDICIAL CANDIDATES BY
PROHIBITING THEM FROM ATTENDING OR SPEAKING AT POLITICAL PARTY
GATHERINGS, IDENTIFYING THEMSELVES AS MEMBERS OF A POLITICAL
PARTY AND SEEKING, ACCEPTING OR USING POLITICAL PARTY
ENDORSEMENTS IN VIOLATION OF THEIR FIRST AMENDMENT RIGHTS.
The ruling of the Fourteenth Circuit should be affirmed
because New Columbus enacted regulations that unconstitutionally
prevent the Respondents from exercising their rights under the
First Amendment.
The rights restricted by New Columbus involve
liberties that are “at the core of our First Amendment
freedoms”.
Minnesota v. White, 536 U.S. 765, 774 (2002);
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995).
The Respondents ask that as the Court conducts the appropriate
de novo review of the Circuit’s decision, Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 54 n.3 (1986), that the Court be
mindful of the significant burdens that the government would
need to overcome to permit reversal.
In this case the
government cannot surmount those burdens and the Fourteenth
Circuit’s opinion should be affirmed.
A. Strict Scrutiny is the Appropriate Test To Measure The
Unconstitutionality of the Challenged Regulations
When the Court confronts a regulation affecting the
exercise of First Amendment rights it must determine which level
of scrutiny is appropriate to measure the regulation’s
7
conformity to the Constitution.
Content-based restrictions
require the most exacting scrutiny because content based
restrictions are the best tool the government has if it wants to
censor speech.
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
661-62 (1994) (stating that content-neutral statutes are not
effective tools).
While it is not always easy to distinguish
content-based statutes from non-content-based statutes, the
Court has held that content-based laws are those that cannot be
“justified without reference to the content of the regulated
speech.”
Bartnicki v. Vopper, 532 U.S. 514, 526 (2001).
Put
more simply, content-based statutes seek to discriminate between
topics or viewpoints, preventing speakers who wish to speak on
one topic, whilst allowing others.
Carey v. Brown, 447 U.S.
455, 463 (1980); Police Dep't of Chicago v. Mosley, 408 U.S. 92,
96 (1972).
The New Columbus Judicial Code restricts speech
solely on the basis of the topics expressed: publicly affirming
party affiliation, giving or receiving endorsements, attendance
at political organization events, making speeches on behalf of
political organizations, soliciting publicly stated support, and
soliciting funds from others.1 Canons 1-3.
Because the
regulations seek to limit what the Respondents can say in the
1
This list is not meant to be all inclusive, but simply
illustrative of the ways the Respondents have had their First
Amendment expression right abridged by the New Columbus Judicial
Code.
8
public sphere, based solely on the topics and ideas the
Respondents wish to talk about, the challenged regulations are
content-based.
Since the New Columbus regulations are content-
based they must be adjudged under the strict scrutiny standard.2
Burson v. Freeman, 504 U.S. 191, 198 (1992).
B. The New Columbus Regulations Fail to Satisfy the Strict
Scrutiny Test
The strict scrutiny analysis consists of two elements, and
the New Columbus Judicial Code does not satisfy either.
First,
the government must prove that the interest it wishes to advance
is compelling or “of the highest order” and cannot be fulfilled
through any other means.
Wisconsin v. Yoder, 406 U.S. 205, 215
(1972); Florida Star v. B.J.F., 491 U.S. 524, 541 (1989).
Secondly, the government must prove that the restrictions
imposed are narrowly tailored.
115, 126 (1989).
Sable Commc’ns v. FCC, 492 U.S.
The New Columbus Judicial Canons do not
advance an interest “of the highest order,” the interests can be
served through means other than speech content restrictions, and
the regulations are not narrowly tailored.
Since the government
cannot prove that the elements are satisfied, the regulations
2
The Petitioners failed to raise any independent non-content
basis in prior proceedings. The Respondents assert that any
such claim should be considered waived. Since no non-content
basis has been established neither intermediate scrutiny nor
rational basis scrutiny would be inappropriate.
9
should be held to be repugnant to the Constitution and the
Fourteenth Circuit’s judgment should be affirmed.
1. New Columbus Judicial Code Canons 1-5 do not advance a
compelling enough interest to satisfy strict scrutiny.
A state that wishes to abridge a citizen’s First Amendment
freedoms must prove that the interest it seeks to advance is of
the highest order.
Wisconsin v. Yoder, 406 U.S. at 215; Florida
Star v. B.J.F., 491 U.S. at 541.
“It is not enough that the
goals of the law be legitimate, or reasonable, or even
praiseworthy.
There must be some pressing public necessity,
some essential value that has to be preserved; and even then the
law must restrict as little speech as possible to serve the
goal.”
Turner Broad. Sys. v. FCC, 512 U.S. at 680 (O’Connor, J.
concurring).
In order to find that a compelling interest is at
stake the government must show that it is seeking to advance a
legitimate goal that is superior to the right restricted because
it would protect either society or an individual from serious
harm or a violation of a preferred right.
Richard Fallon,
Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1302-03 (2007).
The Court will also look at the nexus between the interest and
the restrictions imposed.
If the regulations do not prohibit
conduct that would result in damage to the interest then the
interest is not compelling because underinclusive laws cannot be
regarded as protecting interests of the highest order.
10
Florida
Star v. B.J.F., 491 U.S. at 541-42; City of Ladue v. Gilleo, 512
U.S. 43, 52-53 (1994).
New Columbus has asserted two possible compelling
interests: preventing corruption, and fostering impartiality.
J. Jud. Advisory Comm. to the S. Ct. of N. Col., Final Notes of
the Comm. Secretary on Canons 1-7 of the Code of J. Conduct (May
21, 1920) (on file at N. Col. S. Ct. Archives).
While the
Fourteenth Circuit ruled that such interests may be compelling
enough to restrict First Amendment liberties, the circuit
court’s determination on this issue is in direct conflict with
settled Supreme Court precedent.
R. at 20.
The Court previously determined that ensuring impartiality
as a judge is not compelling enough interest to suppress a
judicial candidate’s free speech.
In Minnesota v. White, 536
U.S. 765 (2002), the Court held that fostering impartiality was
not an interest of the highest order because preventing a
candidate from speaking on “disputed issues” and was not a
significant enough interest to prevent candidates from speaking
on relevant issues.
Id. at 781-82.
The Court noted that the
government has never been allowed to prohibit candidates from
communicating relevant information to voters during an election
because “the notion that the special context of electioneering
justifies an abridgment of the right to speak out on disputed
11
issues sets our First Amendment jurisprudence on its head.”
Id.
at 781-82 (emphasis in original).
The Court also looked at the nexus between the interest
asserted and the restrictions and found that the interest was
not compelling because it did not foster impartiality. Id. at
779-80.
Rather than advance impartiality, the restrictions
resulted in an artificial division in time when a person could
legally speak on an issue and when he could not.
Id.
Since a
person could speak on an issue before he declared his candidacy,
it is not true that he would be less impartial simply because he
couldn’t state his views any longer as a candidate.
Id.
His
partiality could be set in stone prior to becoming a candidate
and impartiality would be compromised no matter what
restrictions were placed on him as a candidate.
The regulations
are so “woefully underinclusive” that the State’s claim of
impartiality as a compelling interest could not be regarded as a
credible. Id. at 780, 783.
Unlike the core political subject matter restrictions
involved in the case at bar, some forms of First Amendment
activity can be regulated if a valid compelling interest is
presented.
In United States Civ. Serv. Comm'n v. Nat'l Ass'n of
Letter Carriers, 413 U.S. 548, 550-51 (1973), the Court noted
that federal employees could be prevented from being involved in
12
campaigns as a condition of employment.3
The compelling interest
presented was the government’s assurance that anyone awarded
employment or promotion within the civil service system received
the benefit as a result of meritorious performance and not for
the satisfaction of a quid pro quo political debt.
Id. at 557.
This express and narrow interest was compelling because it
ensured efficient public service and would not require a
wholesale forfeiture of the panoply of liberties the employees
were entitled to under the First Amendment.
Id. at 555-56.
The
narrow tailoring further showed the limited scope of the
interest because “the Act did not interfere with a ‘wide range
of public activities . . . but only partisan activities” that
were completely unrelated to their jobs.
Id.
Limited interests
have a greater ability to be compelling because they can focus
on limiting serious harms in particular contexts, while the
infringement on the restricted liberties is likely to be minor
and easily tailored.
Id. at 564 (encouraging a balancing of the
interests of the employee to exercise constitutional rights and
the government as an employer).
The New Columbus statute is a far reaching restriction that
directly impacts the candidate’s ability to obtain a job through
an electoral process by restricting what candidates can say and
3
The regulations at issue in Letter Carrier’s are commonly
referred to as the “Hatch Act” and are codified at 5 U.S.C.
7321, et seq.
13
where they can say it.
Canon 2.
Unlike the restrictions on
employees in Letter Carriers, the Respondents are not seeking
jobs based on merit performance.
elected office.
They are running for an
The legitimacy of an election is premised on
the idea of fairness, and on a well-informed electorate.
Buckley v. Valeo, 424 U.S. at 55 n.1.
“The role that elected
officials play in our society makes it all the more imperative
that they be allowed to freely express themselves on matters of
current public importance.” White, 536 U.S. at 781-82 (quoting
Wood v. Georgia, 370 U.S. 375 (1962)).
None of the concerns of
patronage that were addressed by the statute in Letter Carriers
exist in this case.
Neither obtaining the position or promotion
can be attributed to an illicit quid pro quo with a possible
superior since the electorate itself is the employer.
Rather than restrict all groups to which a candidate might
belong the State seeks only to eliminate affiliation with
political parties.
A state normally has the right to deal with
the more significant piece of a problem before it deals with the
lesser harms.
Republican Party of Minnesota v. Kelly, 247 F.3d
854, 872 (8th Cir. 2001).
However, as the majority on the
Circuit court noted, such distinctions based on political speech
distinctions are suspect.
R. at 22-23 (citing Erznoznik v.
Jacksonville, 422 U.S. 205 (1975)).
14
The distinctions drawn by the State are suspect in this
case because a candidate’s membership in a special interest
group is just as, if not more likely, to ensure the appearance
of bias.
The State has asserted that membership is all that is
needed to make bias apparent in a party and such an assumption
would extend to special interest groups as well.
By selecting
only a certain class of groups, based solely on a political
criterion, the State has prevented both the core political
speech of the candidate and his freedom to associate.
Such a
restriction leaves appreciable damage to the interest espoused
by the State since bias still exists or appears to exist.
The
interest does not outweigh the liberty interests of the
candidate and appreciable damage is still being done to the
interest because the restrictions are underinclusive.
The nexus between the narrow interest and the restrictions
in Letter Carriers did not result in a sweeping curtailment of
First Amendment liberties.
The restrictions imposed in Letter
Carriers were not as sweeping as those imposed here.
The
interests which New Columbus cited are broad and require
prophylactic curtailments of core political speech.
The
interests New Columbus cites do not protect society or an
individual from imminent harm and on balance are not more
significant than the dangers brought about from the enactment of
content-based restrictions on speech.
15
The State noted that it was attempting to prevent the
potential for bias, prevent the appearance of bias, and to
ensure open-mindedness and fairness on legal issues by ensuring
that elections were not partisan.
Canons 2-3.
As the Court
noted in White, such amorphous, broad, and undefined interests
do not allow for narrow tailoring because it is difficult to
craft narrowly tailored regulations that are not underinclusive.
White, 536 U.S. at 780.
underinclusive.
This statute is similarly
Once declaring candidacy a person who could
have been a local party leader, as one of the Respondents was,
could no longer even confirm his membership to the party when
asked by a potential elector.
This action would utterly fail to
prevent the appearance of bias for it would already have been
known by some in the community what party he was a member of and
could result in the mistrust of the voters because he cannot
answer their legitimate questions.
Such a dynamic is
unacceptable because “the idea that the special context of
electioneering justifies an abridgment of the right to speak out
on disputed issues sets our First Amendment jurisprudence on its
head.”
Id. at 781.
New Columbus does not cite a compelling interest “of the
highest order.”
Since no compelling interest exists, a
restriction on the Respondents First Amendment activities fails
16
the strict scrutiny test.
Therefore, the judgment of the Court
of Appeals should be affirmed.
2. New Columbus Judicial Code Canons 1-5 are
unconstitutional because they are not narrowly tailored.
Narrow tailoring, under strict scrutiny, requires an
analysis of the restrictions imposed to determine whether they
are the least restrictive means the state could employ to
advance its stated interest and that interest could not be
advanced without the specific restrictions chosen.4
Goldman v.
Weinberger, 475 U.S. 503 (1986); Burson v. Freeman, 504 U.S.
191, 199.
Thus any example of a less restrictive means or a
demonstration that the restrictions restrict more speech than
necessary would result in an affirmation of their
unconstitutionality.
U.S. 803, 846 (2000).
United States v. Playboy Entm't Group, 529
The Court of Appeals determined that the
New Columbus restrictions were not narrowly tailored because the
regulations fail both the least restrictive means test and the
overbreadth test.
The Respondents ask this Court to make the
same determination.
a. The Code Regulates More Speech Than Is Necessary.
The New Columbus Judicial Code prohibits several forms of
expression.
Supra note 1 and accompanying text.
4
Since some of
The Court has previously stated this formula as the “least
restrictive means test” and the “essential test.” Goldman v.
Weinberger, 475 U.S. 503.
17
the prohibitions limit more speech than necessary to advance the
interests of the State, the statute is overbroad.
A prohibition on the endorsment of candidates not only
would prevent partisanship, but would prevent a friend from
supporting a friend even if they are members of opposite parties
or involved in non-partisan elections.
Likewise, a candidate
cannot accept the endorsement of a member of the opposite party
or an unaffiliated voter.
An anti-partisanship stance is not
advanced by preventing the endorsement of candidates in nonpartisan elections, or endorsements by members of differing
parties.
Mere attendance at a political organization function
likewise is not a narrowly tailored regulation.
A candidate may
wish to attend an event of a different party to learn about an
issue and may not participate at all.
The candidate may also
attend to participate in a discussion on the issue because he
disagrees with the stance of his party.
Such an action does not
foster partisanship or corruption.
A refusal to allow candidates to publicly affirm their
party affiliation is also not essential to advancing the
interests of the State.
Party affiliation is normally already
noted in canvassing documents at election boards and available
to anyone who wishes to see them.
Newspapers and others who
know of the candidate’s partisan conduct prior to his
18
declaration of candidacy will likely publish his party
affiliation.
Also one may join a party, but not agree with
every view of that party or be a rabid supporter of the party,
but merely indicate a preference in voting.
Party
identification does not advance partisanship, and preventing
identification does not root it out or prevent it.
In these ways, and more, several sections of the Code seek
to regulate protected methods of expression despite the fact
that they do not advance the interests expressed by the State.
If a regulation is not essential then it fails the narrow
tailoring test and therefore fails the strict scrutiny test.
b. The New Columbus Judicial Code is not narrowly
tailored because it does not utilize the most
restrictive regulations available.
The regulations can also fail as the result of not being
the least restrictive means available.
475 U.S. 503.
Goldman v. Weinberger,
As the majority rightly points out there are
other options available to prevent bias such as self-recusal by
judges or forced reassignment of cases upon a showing of
circumstances which would call the judge’s objectivity into
question in a particular case.
R. at 26.
However a blanket
prohibition on all activity by a candidate, that may never reach
the bench goes too far.
It restricts nonpartisan activity as
well as the partisan and a more narrowly tailored regulation
could be created would recognize the difference between partisan
19
and nonpartisan endorsements.
A statute that would call for
restrictions on disputed or “hotly contested issues” may be more
appropriate and satisfy the Circuit majority’s concern with the
Code’s underinclusiveness while also not prohibiting
legitimately protected speech outside of the interests asserted.
C. Conclusion
Since the New Columbus Judicial Code Cannons 1-5 do not
advance a compelling interest and do not have regulations
narrowly tailored to advance that interest the regulations fail
the strict scrutiny test.
Since the test is failed the
regulations do not conform to the requirements of the First
Amendment.
The Court of Appeal’s judgment that the restrictions
are unconstitutional should be affirmed.
II. THE COURT SHOULD AFFIRM BECAUSE THE NEW COLUMBUS CANON THAT
PRECLUDES JUDGES AND JUDICIAL CANDIDATES FROM PERSONALLY
SOLICITING CAMPAIGN CONTRIBUTIONS IS INCONSISTENT WITH THE FIRST
AMENDMENT BECAUSE IT BARS THEM FROM (1) SIGNING LETTERS
REQUESTING CAMPAIGN CONTRIBUTIONS, AND (2) MAKING APPEALS FOR
CAMPAIGN CONTRIBUTIONS TO “LARGE GROUPS” OF INDIVIDUALS.
The First Amendment to the United States Constitution
provides that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend. I.
The Due Process
Clause of the Fourteenth Amendment to the United States
Constitution incorporates the First Amendment to the states. See
Gitlow v. New York, 268 U.S. 652, 666 (1925)(holding that free
speech provisions of the First Amendment to the U.S.
20
Constitution apply to the individual states).
Because the right
to free speech is a fundamental right, any regulatory or
statutory infringement by a state or by the federal government
must withstand strict scrutiny, in this case New Columbus’
Solicitation Clause. See Carey v. Population Serv's, Int'l, 431
U.S. 678, 686 (1977).
Fundamental rights are those rights that
are deeply rooted in our nation’s history and tradition, and it
is without question that the right to free speech is deeply
rooted in our history and tradition.
See Lawrence v. Texas, 539
U.S. 558, 593 (2004) (fundamental rights are deeply rooted in
history and tradition and implicit in the concept of ordered
liberty).
A. New Columbus Canon Restricting Personal Solicitation and
Solicitation of Large Groups is a Restriction of the
Fundamental Right to Free Speech, and Thus it Must
Withstand Strict Scrutiny Analysis.
New Columbus’ Code of Judicial Conduct, specifically here
the Solicitation Clause, infringes on a judicial candidate’s
fundamental right of free speech. Canon 1-3. The Solicitation
Clause restricts personal appeals for campaign contributions to
large groups, and it bars a judicial candidate from personally
signing solicitation letters, both forms of political speech.
Because the New Columbus rule infringes on a person’s First
Amendment right to free speech this rule must also withstand
strict scrutiny review. See McIntyre v. Ohio Elections Comm’n,
21
514 U.S. 334, 336 n.1. (1995). Strict scrutiny requires that a
state show: 1) a compelling state interest when enforcing a law
that burdens a fundamental right, and 2) that a law burdening
that right is narrowly tailored to serve the compelling state
interest.
Eu v. San Francisco County Democratic Cent. Comm’n.,
489 U.S. 214, 222 (1989). In other words, because the
Solicitation Clause burdens the fundamental right of free
speech, it must restrict no more speech than is necessary to
achieve the legitimate end sought to be preserved or advanced by
the State; it must be as precisely tailored as possible to
achieve the protection of the compelling state interest.
See
Id. at 222, 226-29.
Even assuming arguendo that a compelling state interest
exists, and we assert it does not (discussed supra), the New
Columbus Solicitation Clause is not narrowly tailored because
other options exist to protect or enforce the asserted
compelling state interest. Such protection can be achieved by
mandating recusal in cases where a conflict could arise, and by
instituting penalties on those who would intentionally disclose
the identity of a donor to a judge or to a judicial campaign.
With modern technology a candidate could even sign the
unaddressed letters to make a personal appeal, and then have the
name and address of the recipient affixed by a third-party, so a
signature ban is unnecessary and overly restrictive on speech.
22
Because there are other legitimate means of achieving the
state’s end, the interest that infringes upon a First Amendment
right is not compelling.
Furthermore, the ban on the solicitation of large groups is
more constitutionally questionable in that it is much more
difficult to ascertain the identity of a donor from among a
large group of people; it could be considered even highly
unlikely provided that the committee receiving the donation does
not reveal either the identity of a donor or one who refused to
donate.
Focusing the solicitation restrictions on a donor
rather than the candidate by limiting the transmitting of his
identity to the judge or judicial candidate is a far less
restrictive way of seeking to protect the claimed compelling
state interest.
Even if this Court was to reverse the
Fourteenth Circuit and uphold the New Columbus restrictions,
there is no guarantee that the restrictions will be effective,
and the First Amendment would have been trampled with no
legitimate end achieved.
As it stands now a candidate could
send an unsigned solicitation letter through his committee, that
target could donate and later notify the candidate that he had
done so, and the exact result that the state sought to prevent
with the restrictions would be achieved. A fundamental right
would be trampled in the process.
23
In Buckley v. Valeo, 424 U.S. 1, 19-20 (1976), the Court
held that speech interests in campaign contributions “are
marginal” because they convey only an undifferentiated
expression of support, rather than specific values that motivate
that support.
See Id.
Applying the logic of the Buckley
Court—if New Columbus focused its approach on enforcement of
“secrecy” on the donor side, because the speech interest in
making campaign contributions is minimal, it would stand to
reason that restrictions on transmitting notification of that
contribution to a judicial candidate would also likely be
considered a minimal restriction and thus withstand strict
scrutiny. See Buckley, at 21-22. Thus, the state’s goal could be
reached without overly restricting the freedom of speech.
Furthermore, the state’s concern that a candidate might
ascertain who donated to his campaign and then take an action
that would impugn the judicial system presupposes that an
individual will violate the law.
The law should act as a
deterrent, and we should not assume that it will be broken.
New
Columbus can employ its police powers—its significant ability to
enforce its laws, to ensure that the public is aware that
contributions to judicial candidates may not be divulged.
An
element of deterrence would be more narrowly tailored to achieve
the State’s asserted interest.
24
The State should not infringe on
a candidate’s fundamental Constitutional rights because a thirdparty may violate the law.
In McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995),
the Court struck down a state law that prohibited the
distribution of anonymous campaign literature.
Id. at 357.
The
McIntyre Court held that a person’s decision to publish material
anonymously, in this case political speech, was speech protected
by the First Amendment.
Id. at 342.
In the instant case, the
New Columbus Canons proscribe a candidate from actually signing
his name to a message or solicitation letter even when the
author wants to affix his signature.
To be consistent with the
Court’s decision in McIntyre, it would stand to reason that the
right to make a decision to publish anonymously should include
the right to affix one’s name and publish or solicit campaign
contributions under the name of the author.
In McIntyre, the court reasoned that the state “can, and
Id. at 357.
does, punish fraud directly.”
The state here can
employ similar use of its legitimate authority to punish or
impose severe penalties upon those who seek to influence
judicial conduct, or upon those judges or candidates who seek to
sell influence or damage the institution of the state’s
judiciary.
In Talley v. California, 362 U.S. 60, (1960)
(Harlan, J. concurring), the Court struck down an ordinance that
was overly broad because it widely suppressed speech and
25
association rights that were protected by the First Amendment.
Id. at 66.
While the Canon at issue here is focused on the
election of judges and does not apply to handbills as did the
ordinance in Talley, Justice Harlan’s concurrence is revealing
and instructive.
Justice Harlan reasoned that the interest in
the suppression of all anonymous handbills in Talley in order to
identify those that may be of obnoxious character is too remote
to be constitutionally acceptable.
Id. at 66-67.
Here the State of New Columbus seeks to ban all personal
solicitation by judicial candidates.
In Talley, the state
sought to ban all handbills; the State here seeks to suppress
all personally signed solicitation letters and restrict a
candidate’s speech to groups essentially to guard against the
possibility that a rogue candidate or contributor could violate
a statute.
This rule sweeps too broadly and restricts the
speech of those candidates who uphold and intend to uphold the
law, but most importantly it restricts those who seek to
exercise a fundamental right in an effort to win a judicial
election.
It is, after all, the candidate’s views that must be
scrutinized by the public, and not the views of a committee.
The Court here could even look to the test it used for
commercial speech in Cent. Hudson Gas v. Pub. Serv. Comm’n, 447
U.S. 557 (1980).
The Cent. Hudson Court recognized that because
of some of its peculiarities commercial speech lends itself to
26
more regulation than other speech. Cent. Hudson 447 U.S. at 564
n.6.
The Cent. Hudson Court ruled that a public service
commission’s prohibition against promotional advertising by an
electric utility violated the utility’s First Amendment rights.
The test set out in that case asked four questions: 1) is the
speech protected? 2) is the asserted governmental interest
substantial? 3) does the regulation substantially advance the
governmental interest?, and 4) is the regulation more extensive
than necessary?
See Cent. Hudson 447 U.S. at 564-65.
The court
stated that as long as the commercial speech in Cent. Hudson was
not misleading and not unlawful, the state’ rights were more
circumscribed. See Cent. Hudson 447 U.S. at 564.
The speech
here is political and should be protected provided it is lawful
and not misleading.
Even if one accepts the Petitioner’s
argument that the interest is compelling, that the regulation
furthers that interest, and that the speech is protected, the
regulation would still fail the fourth prong of the less
restrictive commercial speech test because it is overly broad.
B. The Ban on a Candidate Personally Signing Solicitation
Letters and the Mandated Committee Forces a Candidate to
Relinquish to Third-Parties His Constitutional Right.
While the federal system may endow a state the right to
establish its own form of state government, the Court should not
allow the state to establish a system in which it chooses to
elect, rather than appoint, its judges and then use that
27
decision as a reason to trample on the protected rights that are
enumerated in the Constitution and the Bill of Rights.
At the most basic level, the First Amendment right to free
speech is a fundamental right guaranteed to individuals. U.S.
Const. amend. XIV. Freedom of Speech has been characterized as
“the matrix, the indispensable condition of nearly every other
form of freedom.”
(1937).
Palko v. Connecticut, 302 U.S. 319, 327
Freedom of speech is so important and fundamental that
it must be “restated and reiterated not only for each
generation, but for each new situation.”
United States v.
Schwimmer, 279 U.S. 644, 654-55 (1929)(dissenting opinion).
Despite the importance of maintaining this fundamental freedom
and the fact that this freedom has been fiercely guarded for
generations, the state of New Columbus has chosen to force an
individual to relinquish his right in order to attain an elected
judicial position.
Canon 1, 3. The candidate essentially has
two options here: 1) he can run for the judicial office and
choose to have his fundamental rights restricted; or 2) he can
choose not to run for a judicial seat and maintain his freedoms.
Because the Code requires that a judicial candidate
establish a committee to solicit and receive contributions for
his campaign, his speech is being channeled in a manner not
consistent with the First Amendment.
Although by definition an
election tends to show that a person has some level of popular
28
support for his views, a candidate’s speech beginning an
election process must at some point be made for the first time;
by restricting a candidate from soliciting contributions outside
of the prescribed manner by forcing him to utilize a committee,
the state is limiting any fundraising and speech that a
candidate may undertake until there are others willing and able
to serve on a committee.
A candidate’s right should not be
predicated upon first finding others to serve as proxies to
exercise a fundamental right.
III. CONCLUSION
For the foregoing reasons the Respondents respectfully
request that the judgment of the Court of Appeals be affirmed.
29