The reach of free speech: recent rulings make it tough to nail down the boundaries of protected speech and other thorny state-federal issues.

• Author: Savage, David G.
• Position: SUPREME COURT

As the Supreme Court begins a new term, a look at the decisions the justices handed down last term shows, as is often the case, a mixed bag for states.

Although the court upheld state laws to control immigration and help parents send their children to religious schools, it invalidated others passed to protect doctors' prescription records and restrict children from buying violent video games. Several of the decisions turn on what constitutes "free speech" protected by the First Amendment, and the justices came to some surprising conclusions.

They struck down a Vermont law, initiated by physicians, that barred the sale of doctors' prescription records to drug makers to use in their marketing activities. The court's opinion in Sorrell v. IMS Health described prescription data as "speech" fully protected by the First Amendment.

A legislator's vote for and advocacy of a bill, however, is not "protected speech," concluded Justice Antonin Scalia in a Nevada case involving a conflict of interests. All this might be puzzling to state lawmakers who think they know what real speech is when heard on the floor of a legislature.

"How can it be that restrictions upon legislators' voting are not restrictions upon legislators' protected speech?" Scalia asked. "The answer is a legislator's vote is the commitment of his apportioned share of the legislature's power.... [It] is not personal to the legislator, but belongs to the people," he said in Nevada Commission on Ethics v. Carrigan. In that case, Michael Carrigan, an elected city councilman from Sparks, Nev., was charged with a state ethics violation for voting to approve a development project that was backed by his longtime friend and campaign manager. He appealed and won a ruling from the state Supreme Court, which said the ethics charge violated the First Amendment. However, in a unanimous decision, the U.S. Supreme Court said legislators cannot use free speech as a defense to a charge they violated a conflict-of-interest rule.

Candidates' Free Speech

The free-speech rights of candidates came into play when the conservative bloc, led by Chief Justice John G. Roberts, struck down part of an Arizona voter initiative that offers public funding to candidates who agree to forego private fund-raising and abide by spending limits. To keep pace with a well-funded opponent relying on private money, the law allowed a candidate to obtain matching public funds once the spending limit was crossed by his opponent.

Roberts said the matching funds impose "a substantial burden" on the free-speech rights of the privately funded candidates. "It is not legitimate for the government to attempt to equalize electoral opportunities in this manner," he said for the 5-4 majority in Arizona Free Enterprise Club v. Bennett. "Leveling the playing field can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech."

The newest justice, Elena Kagan, spoke for the liberal bloc, saying Arizona's law would encourage...