The Carrigan Free Speech Case Goes to the Supreme Court - The Florida Amicus Brief

Note: I made a few important changes to this blog post on January 10, in conjunction with the posting of my analysis of the parties' briefs in this case.

The Nevada Supreme Court's Carrigan decision, which I discussed in detail last month, has been accepted by the U.S. Supreme Court, likely to be argued in April. It is a case involving a council member censured by a state ethics commission for voting with a conflict of interest, as basic a local government ethics matter as there can be. The briefs can be found on the Scotusblog, except that the online Florida amicus brief is corrupted. So I've attached a copy of it below.

It's interesting that the free speech approach to undermining ethics laws is going to reach the Supreme Court before the legislative immunity approach, which is not only more common, but also more appropriate, if improperly handled by the courts.

I will deal with the briefs in separate blog posts, starting with Florida's amicus brief, which argues primarily that the standard for applying the First Amendment needs to be cleared up. It notes up front that, with respect to the standards for determining whether an ethics provision is constitutional with respect to First Amendment free speech rights, "four States face strict scrutiny standards, sixteen States must meet a heightened scrutiny test under Pickering v. Board of Education, 391 U.S. 563 (1968), eleven States are subject to only rational basis review, and the remaining nineteen States (which include Florida) are left with no firm standard."

The amicus brief then employs the words of Thomas Jefferson himself to argue for the importance of withdrawal in the face of a personal interest:

Where the private interests of a member are concerned in a bill or question, he is to withdraw. And where such an interest has appeared, his voice has been disallowed, even after division. In a case so contrary not only to the laws of decency, but to the fundamental principles of the social compact, which denies to any man to be a judge in his own cause, it is for the honor of the House that this rule of immemorial observance should be strictly adhered to.

The next argument involves the need for states (and presumably localities) to develop ethics laws that suit their circumstances:

Subjecting officials’ voting provisions to strict scrutiny would effectively tie States’ hands and would prevent ethics laws from evolving as necessary to suit individual States’ circumstances. Such provisions demand flexibility that is contrary to the narrow tailoring requirements of strict scrutiny.

Then the brief looks at the logical outcome of the Nevada decision:

If the decision of the Nevada Supreme Court stands here, Florida’s statutes and those of other similarly situated States will inevitably become the target of litigious public officials seeking to avoid ethics violation convictions.

But this is already true, except for the part about convictions, which only occurs in some jurisdictions that have criminalized the ethics process. The reason is that the free speech approach is simply a new wrinkle in a series of legislative immunity cases. There is no doubt that, if allowed to stand, the Carrigan decision, and its partial dependence on Citizens United, will make it far easier for local legislators to ignore recusal provisions, but the Carrigan case is not nearly as dangerous as the legislative immunity decisions. The principal reason is that legislative immunity is a real argument, and free speech is a bogus argument. In addition, legislative immunity affects all legislative activity while free speech involves primarily speech.

The principal problem with the Florida brief is its assumption that the First Amendment should be applied to conflict of interest laws. I agree with the dissenting Justice Pickering of the Nevada Supreme Court that it does not apply. As far as I'm concerned, this is not the case in which to determine which First Amendment test should be employed. This isn't even the case to determine that local legislators must depend on common-law legislative immunity instead, because this is a case that can, and should, be decided narrowly on the basis of due process, due to the vagueness of the Nevada statute's catch-all provision.

It's worth noting that states seem more interested in preventing free speech strict scrutiny than in preventing legislative immunity from being applied in an ethics context. This makes no sense. At the state level, according to recent decisions, there is increasingly little doubt that state legislators do not need to make a free speech argument to allow them to vote when they have a conflict of interest, because they can make a legislative immunity argument instead. The free speech argument is a more serious impediment to ethics laws at the local level, as in the Carrigan case, because local legislators do not have absolute legislative immunity. In other words, free speech is a good tactic for a local legislator, at least until the courts recognize that it should not be applied in the government ethics context, as I argue in my next blog post.

Robert Wechsler
Director of Research-Retired, City Ethics

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