On April 29, 2015, the U.S. Supreme Court decided Williams-Yulee v. Florida Bar. The Court held that the First Amendment permits States to restrict judicial candidates’ speech by prohibiting them from personally soliciting campaign funds.
Florida is one of 39 states where voters elect trial or appellate judges. To preserve the public’s confidence in the integrity of the judiciary, the Florida Supreme Court adopted Canon 7C(1), which prohibits judicial candidates from personally soliciting campaign funds but allows campaign committees to solicit funds on their candidate’s behalf. Similar restrictions have been adopted in 30 of the 39 states where trial or appellate judges are elected.
Petitioner Lanell Williams-Yulee, an unsuccessful candidate for a seat on a county court, was charged in a disciplinary action for violating Canon 7C(1) after she posted online a personally signed letter asking for campaign contributions, and then distributed the letter via a mass mailing. Yulee argued that the First Amendment protects a judicial candidate’s right to solicit funds in an election. The Florida Supreme Court appointed a referee, who held a hearing and recommended a finding of guilt and a sanction. The Florida Supreme Court adopted the referee’s recommendations, concluding that the State’s compelling interest in preserving public confidence in its elected judiciary justifies the narrowly tailored prohibition on direct candidate solicitations.
In a 5-4 decision, the Supreme Court affirmed the Florida Supreme Court, emphasizing a State’s right to “assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.” The five members of the majority did not agree on the proper standard of constitutional review — a four-Justice plurality would apply strict scrutiny, while Justice Ginsburg would apply a lower standard of review — but they agreed that Canon 7C(1) survives even strict scrutiny. Four dissenting Justices also would have applied strict scrutiny to strike down Canon 7C(1), making a total of eight votes for applying the highest level of review.
The Court noted the intuitive importance of the State interest served by Canon7C(1), as “[t]he judiciary’s authority . . . depends in large measure on the public’s willingness to respect and follow its decisions.” By prohibiting only direct candidate requests for contributions, but allowing candidates to pursue funds through their committees and other means, the Court concluded that Canon 7C(1) was narrowly tailored to serve this interest. The Court found no fatal underinclusivity in the exception that allows committees to raise funds for a candidate. “The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.” The committee exception, according to the Court, demonstrates that the Canon “aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal request for money by judges and judicial candidates.” Likewise, the Court found no fault with the failure of the Florida Judicial Ethics Advisory Committee, which provides guidance about campaign election rules, to ban personal thank you notes from the candidate herself. Throughout the opinion, the Court drew a sharp distinction between the role of judicial candidates and politicians, and therefore discounted the bearing of precedents applying the First Amendment to political elections.
Chief Justice Roberts delivered the opinion of the Court, except as to Part II. Justices Breyer, Sotomayor, and Kagan joined the opinion in full, and Justice Ginsburg joined except as to Part II. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined. Justices Kennedy and Alito each filed dissenting opinions.