Supreme Court rules legislative votes not protected speech

The U.S. Supreme Court ruled today that a legislator’s act of casting a legislative vote is not protected personal speech for First Amendment purposes. The Court’s opinion reverses a decision by the Nevada Supreme Court, which had held that a state recusal law infringed on the free speech rights of local legislators.

Michael Carrigan, a city councilor in Sparks, Nev., challenged the Nevada law after the Nevada Commission on Ethics censured him for voting on a city council matter in which he had a conflict of interest. The state Supreme Court agreed with Carrigan’s argument that the act of voting in the council was speech protected by the First Amendment, and that the ethics law at issue was too broad to be consistent with his First Amendment rights.

The Nevada Commission on Ethics asked the U.S. Supreme Court to review that decision last fall. Today, all nine justices on the Court voted to reverse the Nevada court’s ruling.

Justice Antonin Scalia wrote the Court’s opinion, which was joined by seven other justices in full. Scalia stated that a legislator’s vote is “a core legislative function” that should not be conflated with personal speech protected by the First Amendment.

“[A] legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal,” Scalia said. “The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”

That the legislative vote was an act of governance appeared to be central to the Court’s analysis. The Court’s opinion distinguished between a private act of voting and a legislative act, and emphasized that “a legislator has no right to use official powers for expressive purposes.”

The opinion also relied on the historical acceptance of conflict of interest and recusal laws as evidence that such restrictions on legislators do not implicate the First Amendment.

“The Nevada Supreme Court and Carrigan have not cited a single decision invalidating a generally applicable conflict-of-interest recusal rule — and such rules have been commonplace for over 200 years,” Scalia said in the Court's opinion.

Justices Anthony Kennedy and Samuel Alito filed concurring opinions.

Kennedy joined the Court’s opinion, but suggested that recusal statutes could be problematic in other cases. “[T]he possibility that Carrigan was censured because he was thought to be beholden to a person who helped him win an election raises constitutional concerns of the first magnitude,” Kennedy said. But such concerns were not at issue in this case, Kennedy said.

Alito disagreed with the Court’s premise that restrictions on legislative voting did not implicate the speech rights of legislators. “[T]he act of voting is not drained of its expressive content when the vote has a legal effect,” Alito asserted. Nonetheless, Alito agreed that legislative recusal rules were permissible given their historical use; because such restrictions “were not regarded during the founding era as impermissible restrictions of freedom of speech,” they do not run afoul of the First Amendment, Alito said.

John Elwood, who argued the case on behalf of the Nevada Commission on Ethics, said that he and his client were "pleased that the Supreme Court agreed with our position that government officials' legislative power does not belong to them personally but to the people they represent, and thus legislative recusal rules do not infringe personal Free Speech rights under the First Amendment."

The Reporters Committee for Freedom of the Press and the Student Press Law Center filed a friend-of-the-court brief on behalf of fourteen other news organizations in support of the commission’s position. The news organization’s brief urged the high court to hold that voting and similar official actions by government officials do not qualify as the type of speech that the First Amendment was meant to protect, and emphasized the negative implications to open government that could flow from allowing government officials to challenge good government laws on First Amendment grounds.