9th Cir. Does About-Face on Judicial Speech

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By Kimberly Robinson

Jan. 27 — The en banc Ninth Circuit reversed course Jan. 27 when it upheld Arizona's restrictions on judicial candidates' speech.

In May 2014, a panel of the U.S. Court of Appeals for the Ninth Circuit said the restrictions ran afoul of the First Amendment (82 U.S.L.W. 1746, 5/20/14).

In reversing that decision, the court relied heavily on the U.S. Supreme Court's intervening decision in Williams-Yulee v. Fla. Bar, 83 U.S.L.W. 4269, 2015 BL 123637 (U.S. April 29, 2015) (83 U.S.L.W. 1622, 5/5/15).

In Williams-Yulee, the high court upheld Florida's personal solicitation ban on judicial candidates.

“ ‘We have recognized the vital state interest in safeguarding public confidence in the fairness and integrity of the nation's elected judges,' ” because the judiciary's authority “ ‘depends in large measure on the public's willingness to respect and follow its decisions,' ” the Ninth Circuit said, quoting Williams-Yulee.

Split Resolved

Williams-Yulee put to rest a circuit split over the level of scrutiny to apply to restrictions on judicial candidates' speech (82 U.S.L.W. 1859, 6/3/14).

Strict scrutiny applies because the “ ‘First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office,' ” the Ninth Circuit said, quoting Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).

Under the restrictions, judicial candidates are prohibited from personally soliciting funds for their own campaigns or for a campaign for another candidate or political organization, publicly endorsing another candidate, making speeches on behalf of another candidate or political organization, or actively taking part in any political campaign, the court explained.

Those restrictions met the demanding strict scrutiny test because they are narrowly tailored to the state's compelling interest in preserving judicial integrity.

Judge Ronald M. Gould wrote the court's opinion. Chief Judge Sidney R. Thomas, and Judges Diarmuid F. O'Scannlain, Susan P. Graber, William A. Fletcher, Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan, Morgan Christen and Andrew D. Hurwitz joined the opinion. Judge Marsha S. Berzon filed a separate concurrence.

The Bopp Law Firm represented the laws' challenger. The Office of the Arizona Attorney General represented the state.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com