Supreme Court rejects Upside Down First Amendment claim

The U.S. Supreme Court today rejected a First Amendment claim by a Nevada lawmaker who argued that the state’s conflict of interest laws requiring elected officials to recuse themselves from governance votes on issues where they have a conflict of interest violated his free speech rights.

It was an odd, but important case.  In a nutshell, the case involved Sparks, Nev., city councilman Michael A. Carrigan, who claimed his First Amendment free-speech rights were violated when he was penalized under a state ethics law for voting on a casino development that financially benefited his campaign manager.

It was an odd case because the First Amendment was designed to limit the government’s authority to restrict the free speech rights of those they govern. Not to protect a government official’s speech (at least when acting in his official capacity and not as a private citizen) from common sense restrictions placed on it that help ensure clean and open government.

It is an important ruling because of what could happen when you start down the Upside Down First Amendment (UDFA) road. Namely, once you start to recognize that the First Amendment protects not just citizen speech from government restrictions, but shields government speech as well, you put yourself in the position of having to balance potentially competing interests. The reason the First Amendment — and all of the Bill of Rights —  was adopted in the first place was because the framers felt the government had too much power already. The Bill of Rights, which deliberately took power away from the government, was the balance they wanted. A UDFA that gives the government more “rights” (and let’s be clear, a government right is called “power” or “authority”) throws all of that out of whack.

That’s why earlier this year, the SPLC joined the Reporters Committee for Freedom of the Press and a coalition journalism and open-government groups in filing a friend-of-the-court-brief that urged the Court to reject Carrigan’s claim. The brief cautioned that if the justices decided 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.

Today’s ruling should apply an important brake to the malignant growth of the UDFA.