Supreme Court debates First Amendment rights of elected officials in ethics law case

Supreme Court justices appeared perplexed Wednesday about how to resolve the case of a Nevada city councilman who claims his First Amendment free-speech rights were violated when he was penalized for voting on a casino development that financially benefited his campaign manager.

Councilman Michael A. Carrigan of the Sparks, Nev., city council contends that his state’s ethics law is unconstitutionally vague because it prohibits voting not only on matters that benefit close relatives or business partners, but also on matters that benefit people in a “substantially similar” type of relationship. He convinced the Nevada Supreme Court to throw out his reprimand from the Nevada Commission on Ethics, on the grounds that the ethics law unduly burdened his First Amendment rights.

Carrigan’s attorney, E. Joshua Rosenkranz, tried to make the case a narrowly focused one that would impact only Nevada’s law — which he called “an outlier statute” — and not jeopardize other ethics laws nationwide.

Rosenkranz argued that, as interpreted by the Commission on Ethics, the Nevada law means that “political loyalty is corrupting” because a public official can be penalized for voting in a way that benefits his political supporters, which is the essence of politics.

The Student Press Law Center and a coalition of journalism and open-government groups filed a friend-of-the-court brief in support of the ethics commission, which is appealing the Nevada Supreme Court decision. The brief cautions that, if the justices decide that conflict-of-interest rules are a restraint on First Amendment speech, that same logic might also apply to laws requiring government officials to deliberate and vote in public, making all open-meetings laws vulnerable to constitutional challenge.

Only Justice Antonin Scalia appeared eager to confront the core issue raised by the press organizations’ brief: whether the act of casting a vote as an elected official is an act of “speech” to which the First Amendment applies at all.

“I’m not really so concerned about the vagueness as I am about the proposition that ethical rules adopted by legislatures for voting are subject to review by this court or by any court under the First Amendment,” Scalia said. “This is the first case I’m aware of we’ve had which makes such an allegation … I’m not even aware of any other case in 220 years in the federal courts.”

Attorney John P. Elwood, representing the ethics commission, agreed that an elected officeholder’s vote is a governmental action rather than First Amendment expression. But Elwood said the justices did not even have to go that far, because — even if Carrigan’s voting was speech protected by the First Amendment — speech can lawfully be regulated by a “content neutral” state law that applies equally to all speakers. Nevada’s ethics law, he contended, is such a statute.

Justice Samuel Alito bristled at the suggestion that elected officials’ votes could be categorically declared to be outside of the First Amendment. Alito harked back to a ruling from the 2010 term, United States v. Stevens, in which the Court refused to say that videos depicting graphic animal cruelty are always unprotected speech.

“In several recent cases the Court has taken pains to make the point that it is not going to recognize new categories of unprotected speech. But the argument that you seem to be endorsing now in response to some questions is that there is this new category of unprotected speech,” he told Elwood, noting that the Nevada law not only prohibited elected officials from voting for their close associates’ projects but also “advocating” for the passage of those projects.

Alito’s comment provoked considerable interest from Court-watchers because the justices are expected to announce any day their ruling in a key First Amendment case that asks them to do exactly what Alito suggested he would not do — declare that violent video games are unprotected by the First Amendment when marketed to minors.

During Wednesday’s arguments, the justices largely bypassed the issue of whether a councilman’s vote is or is not an act of First Amendment speech, and focused instead on Carrigan’s primary argument that the statute is unconstitutionally vague.

Alito asked Elwood whether the Nevada law would require a council member to refrain from voting on a property-tax increase if his second cousin owned property in the community. Elwood responded that it would depend on “whether a reasonable person under those circumstances would view [the council member’s] independence of judgment as being materially affected.”

“Well, if I were a public officer I would find it very difficult to figure out whether a reasonable person would think that an effect on my second cousin’s property taxes would … materially affect my judgment,” Alito retorted. “I have no idea how you go about that.”

But Scalia pointed out that many ethical standards are purposefully open-ended, including the federal law that requires judges — including Supreme Court justices — to recuse from considering a case where there is even a possible “appearance of impropriety.”

“If there is anything vaguer than that I can’t imagine what it would be. Can I get out of all that stuff?” Scalia said, prompting laughter. During the George W. Bush administration, Scalia was criticized for refusing to disqualify himself from voting in a case involving his personal friend and hunting partner, then-Vice President Dick Cheney.

Justice Sonia Sotomayor noted that Congress and state legislatures often enact generically worded statutes that leave the details to be filled in based on specific fact situations.

“How will Congress ever write a law that would be so clear that clients would never have to go to lawyers, or that lawyers couldn’t disagree about? We would have to invalidate virtually every law as vague,” Sotomayor said.

Rosenkranz tried to characterize the case as one about the First Amendment freedom of association rather than freedom of speech. He argued that Nevada’s conflict-of-interest law unduly burdens social and political affiliations, because a would-be political candidate will hesitate to form relationships with people who might one day have business before him as an elected official.

Rosenkranz said volunteers “will refrain from joining campaigns out of fear that when they join the campaign they will get the candidate disqualified.” For example, he said, a National Rifle Association lobbyist might refrain from volunteering in the campaign of a candidate he supports because Nevada law might require the candidate, once elected, to refrain from voting on gun legislation the lobbyist supports.

But Justice Stephen Breyer scoffed at that analogy, noting that the relationship between Carrigan and his lifelong friend and campaign manager, who was hired to lobby for the casino project on which Carrigan voted, was far closer than that of a candidate and a mere campaign worker.

“That doesn’t sound like any volunteer,” Breyer said, “It sounds like somebody sitting on a case where his best friend is likely to gain millions of dollars.”

The case is Nevada Commission on Ethics v. Carrigan, 10-568.