Reason (Volokh Conspiracy): Judicial Candidates’ Free Speech Rights
By Eugene Volokh
Montana, like many states, elects judges. Montana also doesn’t list party affiliations for judges on its ballots (a position Montana is free to take). But Montana adds to that by restricting the speech of judicial candidates — barring them from soliciting party endorsements, and informing the public of any party endorsements that they get.
The Ninth Circuit upheld that restriction last year, relying on the Supreme Court’s 5-4 decision in Williams-Yulee v. Florida Bar (2015). That decision upheld a much narrower speech restriction: a ban on judicial candidates directly soliciting funds. But the Ninth Circuit concluded that Williams-Yulee authorized a much broader range of restrictions on judicial candidate speech as well.
The petition for review in that case (French v. Jones) is now before the Supreme Court, and last week my students Nicole Karatzas, Christina Kroll, and Eric Lamm and I filed an amicus brief supporting the petition, on behalf of the Institute for Free Speech. Here’s the text of the brief, in case some of you are interested; recall that the brief is aimed at persuading the Court to devote time to hearing the case — because it involves an important issue that arises often, and that has divided lower courts — and not just at persuading the Court that the result below is wrong.