9th Circuit Affirms Arizona Judge Speech Laws as Constitutional

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By Jonathan R. Tung, Esq. on February 02, 2016 6:00 AM

Our nation's most liberal circuit, the Ninth Circuit, just affirmed a lower district's ruling that judges cannot endorse other judges or political groups while angling for their own judge's seat.

The circuit found that despite legal arguments Wolfson presented, the Arizona laws put in place to limit judge speech survived the high bar of "strict scrutiny" review.

Rise of Randolph Wolfson

Randolph Wolfson, a two-time judicial candidate who pursued the bench in 2006 and 2008, challenged several provisions of his state's Code of Judicial Conduct regulating campaigns. The handful of laws (the Personal Solicitation Clause, the Endorsement Clauses, and the Campaign Prohibition) ethically and legally precluded Wolfson from publicly seeking monies and contributions for himself, or other political groups or judicial candidates. They also precluded speeches, promotions and pretty much anything else that could even be remotely construed as promoting a political or judicial group.

Strict Scrutiny Speech Review

At the district level, the court found its way to what would eventually be confirmed by the Ninth Circuit as the correct result: a ban on political campaigning is a restriction of speech, but justified under strict scrutiny considerations of public policy.

In the end, the circuit affirmed, citing Williams-Yulee v. Florida Bar, the district court's finding: the government, indeed the people, have a compelling interest in protecting the public confidences in the integrity of the judiciary.

Williams-Yulee v. Florida Bar

The case of Williams-Yulee v. Florida Bar was rather on point in that it specifically applied to the speech restrictions of a judicial candidate. The key statement in that case was this: "A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest." The case was critical in the Ninth Circuit ruling because a holding that Arizona laws did not pass the Williams-Yulee strict scrutiny rules would put the Ninth Circuit in conflict with the Sixth, Eighth and Elenventh Circuits.

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