Free Speech and the Difference Between Elected Officials and Ordinary Citizens

Yet another court decision discussed at the COGEL conference placed First Amendment free speech rights far above the obligations of a government official, employing a strict scrutiny approach where a simple due process (for statutory vagueness) approach would have been sufficient. This time the official is a member of the Sparks (NV) city council, in fact, the same council member who successfully sued to overturn an advisory opinion of the state ethics commission in a case I carefully reviewed in a July blog post.

The decision is from the Supreme Court of Nevada in Carrigan v. Commission of Ethics (July 29, 2010). I'll refer to it as Carrigan I, as opposed to the one I've already discussed, which was filed second and which I'll refer to as Carrigan II.

Carrigan I involves a censure by the state ethics commission due to councilor Carrigan's failure to recuse himself from voting on a matter involving a company for which his campaign manager worked. As in Carrigan II, the campaign manager was not a family member or business associate, but there is an unusual provision in the Nevada ethics code that requires recusal where there is "any other commitment or relationship that is substantially similar to a commitment or relationship described in subparagraphs (1) to (4), inclusive, of this paragraph."

Balancing or Strict Scrutiny?
Before the Citizens United decision, the district court in Carrigan I concluded, according to the Supreme Court, that "the state has a strong interest in having an ethical government, which outweighs a public officer’s and state employee’s protected free speech voting right." In other words, it employed a balancing test.

I don't even think a balancing test was necessary. I agree with Justice Pickering in her dissent to the state Supreme Court decision: "An elected official’s vote on a matter of public importance is first and foremost an act of governance."

But the rest of the state Supreme Court turned to Citizens United, referring to it in its call for strict scrutiny instead of the district court's balancing. I won't go through the strict scrutiny analysis here, because I just described it this week in my blog post on the Brinkman decision in Ohio.

Applying a decision involving citizens' free speech in terms of campaign contributions to a case involving a public official faced with a possible conflict is irresponsible. Here is the first paragraph of Justice Pickering's dissent in Carrigan I:

Before today, no published decision has held that an elected local official engages in core political speech when he or she votes on an individual land use matter. Likewise, no published decision reviewing the ethical propriety of such a vote has subjected the applicable legislative prohibition against conflicts of interest to strict scrutiny or invalidated it on overbreadth grounds. Because I believe charting this course is both unprecedented and unwise, I respectfully dissent.

Due Process
I agree with the state Supreme Court majority that the Nevada provision is vague, and I believe that the ethics commission in Carrigan I should not have censured the council member, but that it was reasonable for the ethics commission to advise the same council member not to vote (as it did in Carrigan II). But in her dissent, Justice Pickering makes a reasonable argument that the provision is not vague.

To reach the conclusion that the provision is vague, it is not necessary to bring in the First Amendment. Due process is more than sufficient to deal with the vagueness of this provision. If it is to be struck, the provision should be struck on due process grounds.

A Balancing Test
Even if one accepts that the First Amendment is relevant to this case (and I do not), there is an alternative to strict scrutiny in free speech cases, known as the Pickering balancing test (no relation to the Justice who dissented in this case). The test is "based on the view that the state, as an employer, has a stronger interest in regulating an employee’s speech than in regulating the speech of the general public, in order to promote efficiency in the public services it offers." The court in Carrigan I says this only applies to government employees, not to elected officials.

That's reasonable, considering the basis for the Pickering test, but that doesn't mean that the only alternative is strict scrutiny. In a case where there is not this level of vagueness, another balancing test would be more appropriate, a test that recognizes the obligations an elected official has to put the public interest ahead of personal interests.

Free Speech As a Form of Legislative Immunity
Employing a strict scrutiny test opens up a Pandora's box. Effectively, the free speech argument becomes a legislative immunity argument. If you think I'm saying this just because legislative immunity is my obsession, see how the Carrigan I decision refers to the same court's Hardy decision applying legislative immunity (see my blog post on the Hardy decision):

Recently, we recognized in [Hardy] that “voting on legislation is a core legislative function.”  Because voting is a core legislative function, it follows that voting serves an important role in political speech.

If core legislative functions, which are what is protected by legislative immunity, play an important role in political speech, and a legislator's political speech is protected by the First Amendment just like any other individual's political speech, then what, effectively, is the difference between free political speech and legislative immunity arguments? Accepting Carrigan's argument, the difference is not a constitutional one as much as a strategic one. That is, local government officials, who do not have absolute legislative immunity (as do federal and, at least where in the state constitution, state officials), cannot demand strict scrutiny of statutes or ordinances that might be seen to interfere with their core legislative functions.

If Carrigan had absolute legislative immunity, he wouldn't have bothered with the First Amendment, or he would have relegated it to a secondary argument. His lawyers were clever enough to find a way to apply the Hardy legislative immunity decision, which involved a state legislator, to local legislators via the First Amendment.

Looking Ahead
The district court didn't fully accept this ploy, but the state Supreme Court did. And now the case is going to the U.S. Supreme Court, despite the fact (or because?) the particular provision is both weak and unusual, thus making the plaintiff's case easier in one sense, but the free speech argument unnecessary. Will the U.S. Supreme Court insist on focusing on due process, and throwing out the free speech argument? Or, if it insists on accepting the free speech argument, will it come up with a second balancing approach that takes into account a local government official's obligations and the very different nature of their free speech rights?

Or will it ignore the raison d'être of local government ethics, treat elected officials like ordinary citizens, and apply the strict scrutiny approach, putting all its eggs in the Citizens United bread basket? Let's hope not.

I'd like to end with the last words of Justice Pickering's dissent:

[A]pplying First Amendment strict scrutiny and overbreadth precepts to invalidate state conflicts-of-interest laws that govern local governmental officials who vote is a mistake that I fear opens the door to much litigation and little good.

Robert Wechsler
Director of Research-Retired, City Ethics

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