Some Surprising First Amendment Rulings

In a deeply divided 5-4 decision, the Supreme Court ruled against the candidate and in favor of the Florida Bar. Perhaps the biggest surprise was the author of the opinion-Chief Justice Roberts. Joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, Chief Justice Roberts first found that the restriction was subject to strict scrutiny, and then held that this was "one of the rare cases in which a speech restriction withstands strict scrutiny."2 Here, the state's asserted interest in "public confidence injudicial integrity" was enough to justify the ban on personal judicial campaign solicitations.3 As Chief Justice Roberts's opinion for the Court concluded: "Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict."4 In dissent, Justice Scalia, joined by Justice Thomas, took the Court majority to task for allegedly "flatten[ing] one settled First Amendment principle after another" to reach its result.5 According to Justice Scalia, although the majority "purported]" to reach its decision by applying strict scrutiny, "it would be more accurate to say that it does so by applying the appearance of strict scrutiny."6 Justice Scalia called out the Court for elevating the interest in preserving the impression of an impartial judiciary over other First Amendment interests it had rejected in previous cases and pointedly concluded: "The First Amendment is not abridged for the benefit of the Brotherhood of the Robe."7 Justices Kennedy and Alito filed separate dissents.