Judging judges: why strict scrutiny resolves the circuit split over judicial speech restrictions.

• Author: Zaheer, Ashna

INTRODUCTION

On June 27, 2002 the Supreme Court, in Republican Party of Minnesota v. White (1), struck down as unconstitutional a provision of Minnesota's judicial code that prohibited judicial candidates from announcing their views on disputed legal and political issues. (2) In a five-four opinion, the majority reviewed the speech restriction under strict scrutiny and held that the regulation was not narrowly tailored to meet a compelling state interest, therefore violating judicial candidates' First Amendment rights. (3)

Judicial election has been a longstanding feature of the majority of states' judicial selection. (4) Currently, forty states have some form of judicial election system. (5) Further, regulation of judicial candidates' speech during elections is not uncommon. Traditionally, the judiciary has been regarded as the "guarantor of individual rights," (6) "dedicated to 'inflexible and uniform adherence' to the 'fundamental law' of the Constitution." (7) Inherent in the role of the judiciary is the notion that judges must act impartially in applying the law, "putting aside any preconceived notions, political agendas, social commitments, and personal biases." (8) However, the election process, and the accompanying politicization, has posed threats to this idea. Accordingly, the majority of states that elect their judges have adopted codes of judicial conduct, which effectively regulate and restrict judicial campaign speech in order to maintain the "independence, integrity [and] impartiality" of its judiciary. (9)

The decision in White was especially notable because it was the first time the Supreme Court considered the constitutionality of states' restrictions on judicial campaign speech. Many of these provisions regulating judicial speech had gone unchallenged for quite some time, and were generally abided by until recent times. (10) In invalidating Minnesota's "announce" clause, White made clear that states would not be permitted to stifle judicial candidate speech at the expense of First Amendment protections. (11) Indeed, the Court subjected Minnesota's speech restriction to strict scrutiny, the most intensive type of judicial review. (12) However, the decision also left many issues unanswered. Justice Kennedy, in his concurring opinion, emphasized the fact that the holding applied to judicial candidates rather than incumbent judges. (13) Thus, he noted that the opinion left open the possibility that public employee speech principles, which allow for greater government regulation and less judicial scrutiny, could be extended to sitting judges seeking reelection. (14)

After White, lower courts began considering the legality of other provisions restricting judicial campaign speech. (15) However, the courts have split on the appropriate level of scrutiny with which to review judicial speech restrictions. Like the Supreme Court in White, the Sixth and Eighth Circuits have rightly afforded judicial candidates' speech the utmost protection under the First Amendment, and have reviewed these restrictions under strict scrutiny. (16) On the other hand, the Seventh Circuit, acknowledging Justice Kennedy's concurrence, has applied a lesser "balancing test" to uphold the validity of various provisions, based on the faulty premise that judicial candidates are public employees. (17)

This Note explores the constitutionality of restraints on judicial election speech, specifically focusing on the appropriate level of scrutiny that courts should afford when reviewing the validity of such restraints. Part I provides an overview of the Court's First Amendment jurisprudence with respect to both strict scrutiny and the balancing test standard. Part II examines the White decision in its entirety. Part III summarizes lower courts' application of White, and the circuit split that has emerged regarding the appropriate standard of review for judicial speech restraints. Part IV argues that restrictions on judicial candidates' speech, like restrictions on all other political speech must be reviewed under strict scrutiny. It will show that based on First Amendment speech principles, as well as practical considerations, the lesser balancing test is inapplicable to judicial campaign speech.

1. FIRST AMENDMENT STANDARDS OF SCRUTINY

   Before turning to White and the circuit cases, and analyzing the appropriate standard of review for restraints on judicial election speech, it is necessary to briefly discuss the Supreme Court's First Amendment jurisprudence with respect to these different standards of review.

   1. Strict Scrutiny

      Strict scrutiny is the most intensive type of judicial review. (18) Restrictions on speech reviewed under this standard are generally presumed invalid, and the government has the heavy burden of proving the constitutionality of the restriction. (19) The Supreme Court has drawn a distinction between content-based speech regulations, which are at the heart of First Amendment protection and subject to strict scrutiny, and content-neutral restrictions, which are reviewed under a less rigorous standard. (20) The general rule is that a restriction is deemed "content-neutral" only if it is both viewpoint neutral (21) and subject matter neutral. (22) Otherwise, the restriction will likely fall under the exacting standard of strict scrutiny, only subject to certain categorical exceptions, including incitement, (23) defamation, (24) obscenity, (25) and child pornography. (26) Further, the Court has declared that political speech is at the core of the First Amendment, noting: "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." (27) Accordingly, restrictions on political speech have repeatedly been subjected to strict scrutiny. (28)

      Although rare, a regulation can survive strict scrutiny if the restriction is narrowly tailored to serve a compelling state interest. (29) To be narrowly tailored, a regulation must: (1) actually advance the state's compelling interest, (2) not be overinclusive, in the sense that it restricts speech that does not implicate the compelling interest, (3) be the least restrictive alternative, and (4) not be underinclusive, in the sense that it fails to restrict a significant amount of speech that implicates the compelling governmental interest. (30)

   2. Balancing Test

      Although the general rule is that content-based speech restrictions are subject to strict scrutiny, the Court has held that certain types of speech are entitled to less protection under the First Amendment, including that of public employees. (31) Under this lower standard of review, the Court balances the employee's right to free speech against the government's interest in restricting the speech. This section examines the seminal cases on public employee speech, including those most pertinent to our discussion.

      1. Picketing v. Board of Education (32)

         In Picketing v. Board of Education, Pickering, a public high school teacher, was fired after he sent a letter to a local newspaper criticizing the school board's dispersion of funds, and informing taxpayers of the real reasons why additional tax revenue was being sought. (33) The school board dismissed the teacher on the grounds that his "statements unjustifiably impugned the 'motives, honesty, integrity, truthfulness, responsibility and competence' of both the Board and the school administration[,]" and "damaged the professional reputations of its members and of the school administrators." (34)

         In determining whether the First Amendment protected Pickering's speech, the Court reviewed the dismissal under a less rigorous standard than that of strict scrutiny. (35) Instead, the court acknowledged that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." (36) Accordingly, the Court concluded that the appropriate standard in this case was to balance "the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." (37)

         Even under the less intensive review, the Court held that the facts of the case tipped the balance in favor of the teacher, such that the First Amendment protected his speech. The Court noted that the teacher's statements neither impeded his job performance nor interfered with the school's operation. (38) Further, the Court emphasized that the statements, which addressed the school's allocation of funds, were a matter of "legitimate public concern." (39) Because teachers are likely to have an informed opinion on how funds should be allocated, the Court held that it was "essential that they be able to speak out freely ... without fear of retaliatory dismissal." (40) Therefore, the Court concluded that the teacher's interests outweighed the state's, and the school's regulation of his speech violated the First Amendment. (41)

      2. Connick v. Myers (42)

         In Connick v. Myers, the Court reinforced and refined the decision of Pickering. The dispute in Connick arose after the plaintiff, an Assistant District Attorney, was notified, that despite her objections, she was being transferred to a different section of the criminal court. (43) Angered by the decision, the plaintiff circulated a questionnaire soliciting the views of staff members and attorneys concerning the "office transfer policy, office morale, the need for a grievance committee, [and] the level of confidence in supervisors." (44) The plaintiff was immediately fired for insubordination, and she sued claiming a violation of the First Amendment. (45)

         Relying on the Picketing balancing test, the Court ruled against the plaintiff. (46) Specifically, the Court said that the plaintiff's questionnaire did not comment on matters of public...