NOTICE: This opinion is subject to formal revision before
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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1499
_________________
LANELL WILLIAMS-YULEE, PETITIONER
v.THE FLORIDA BAR
on writ of certiorari to the supreme court of florida
[April 29, 2015]
Chief Justice Roberts delivered the opinion of the Court, except
as to Part II.
Our Founders vested authority to appoint federal judges in the
President, with the advice and consent of the Senate, and entrusted
those judges to hold their offices during good behavior. The
Constitution permits States to make a different choice, and most of
them have done so. In 39 States, voters elect trial or appellate
judges at the polls. In an effort to preserve public confidence in
the integrity of their judiciaries, many of those States prohibit
judges and judicial candidates from personally soliciting funds for
their campaigns. We must decide whether the First Amendment permits
such restrictions on speech.
We hold that it does. Judges are not politicians, even when they
come to the bench by way of the ballot. And a State’s decision to
elect its judiciary does not compel it to treat judicial candidates
like campaigners for political office. A State may assure its
people that judges will apply the law without fear or favor—and
without having personally asked anyone for money. We affirm the
judgment of the Florida Supreme Court.
I
A
When Florida entered the Union in 1845, its Constitution
provided for trial and appellate judges to be elected by the
General Assembly. Florida soon followed more than a dozen of its
sister States in transferring authority to elect judges to the
voting public. See J. Shugerman, The People’s Courts: Pursuing
Judicial Independence in America 103–122 (2012). The experiment did
not last long in the Sunshine State. The war came, and Florida’s
1868 Constitution returned judicial selection to the political
branches. Over time, however, the people reclaimed the power to
elect the state bench: Supreme Court justices in 1885 and trial
court judges in 1942. See Little, An Overview of the Historical
Development of the Judicial Article of the Flor-ida Constitution,
19 Stetson L. Rev. 1, 40 (1989).
In the early 1970s, four Florida Supreme Court justices resigned
from office following corruption scandals. Florida voters responded
by amending their Constitution again. Under the system now in
place, appellate judges are appointed by the Governor from a list
of candidates proposed by a nominating committee—a process known as
“merit selection.” Then, every six years, voters decide whether to
retain incumbent appellate judges for another term. Trial judges
are still elected by popular vote, unless the local jurisdiction
opts instead for merit selection. Fla. Const., Art. V, §10;
Hawkins, Perspective on Judicial Merit Retention in Florida, 64
Fla. L. Rev. 1421, 1423–1428 (2012).
Amid the corruption scandals of the 1970s, the Florida Supreme
Court adopted a new Code of Judicial Conduct. 281 So. 2d 21 (1973).
In its present form, the first sentence of Canon 1 reads, “An
independent and honorable judiciary is indispensable to justice in
our society.” Code of Judicial Conduct for the State of Florida 6
(2014). Canon 1 instructs judges to observe “high standards of
conduct” so that “the integrity and independence of the judiciary
may be preserved.”
Ibid. Canon 2 directs that a judge “shall
act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.”
Id., at 7.
Other provisions prohibit judges from lending the prestige of their
offices to private interests, engaging in certain business
transactions, and personally participating in soliciting funds for
nonprofit organizations. Canons 2B, 5C(3)(b)(i), 5D;
id., at
7, 23, 24.
Canon 7C(1) governs fundraising in judicial elections. The
Canon, which is based on a provision in the Ameri-can Bar
Association’s Model Code of Judicial Conduct, provides:
“A candidate, including an incumbent judge, for a judicial
office that is filled by public election between competing
candidates shall not personally solicit campaign funds, or solicit
attorneys for publicly stated support, but may establish committees
of responsible persons to secure and manage the expenditure of
funds for the candidate’s campaign and to obtain public statements
of support for his or her candidacy. Such committees are not
prohibited from soliciting campaign contributions and public
support from any person or corporation authorized by law.”
Id., at 38.
Florida statutes impose additional restrictions on campaign
fundraising in judicial elections. Contributors may not donate more
than $1,000 per election to a trial court candidate or more than
$3,000 per retention election to a Supreme Court justice. Fla.
Stat. §106.08(1)(a) (2014). Campaign committee treasurers must file
periodic reports disclosing the names of contributors and the
amount of each contribution. §106.07.
Judicial candidates can seek guidance about campaign ethics
rules from the Florida Judicial Ethics Advisory Committee. The
Committee has interpreted Canon 7 to allow a judicial candidate to
serve as treasurer of his own campaign committee, learn the
identity of campaign contributors, and send thank you notes to
donors. An Aid to Understanding Canon 7, pp. 51–58 (2014).
Like Florida, most other States prohibit judicial candidates
from soliciting campaign funds personally, but allow them to raise
money through committees. According to the American Bar
Association, 30 of the 39 States that elect trial or appellate
judges have adopted restrictions similar to Canon 7C(1). Brief for
American Bar Association as
Amicus Curiae 4.
B
Lanell Williams-Yulee, who refers to herself as Yulee, has
practiced law in Florida since 1991. In September 2009, she decided
to run for a seat on the county court for Hillsborough County, a
jurisdiction of about 1.3 million people that includes the city of
Tampa. Shortly after filing paperwork to enter the race, Yulee
drafted a letter announcing her candidacy. The letter described her
experience and desire to “bring fresh ideas and positive solutions
to the Judicial bench.” App. to Pet. for Cert. 31a. The letter then
stated:
“An early contribution of $25, $50, $100, $250, or $500, made
payable to ‘Lanell Williams-Yulee Campaign for County Judge’, will
help raise the initial funds needed to launch the campaign and get
our message out to the public. I ask for your support [i]n meeting
the primary election fund raiser goals. Thank you in advance for
your support.”
Id., at 32a.
Yulee signed the letter and mailed it to local voters. She also
posted the letter on her campaign Web site.
Yulee’s bid for the bench did not unfold as she had hoped. She
lost the primary to the incumbent judge. Then the Florida Bar filed
a complaint against her. As relevant here, the Bar charged her with
violating Rule 4–8.2(b) of the Rules Regulating the Florida Bar.
That Rule requires judicial candidates to comply with applicable
provisions of Florida’s Code of Judicial Conduct, including the ban
on personal solicitation of campaign funds in Canon 7C(1).
Yulee admitted that she had signed and sent the fundraising
letter. But she argued that the Bar could not discipline her for
that conduct because the First Amendment protects a judicial
candidate’s right to solicit campaign funds in an
election.[
1]* The Florida Supreme Court appointed
a referee, who held a hearing and recommended a finding of guilt.
As a sanction, the referee recommended that Yulee be publicly
reprimanded and ordered to pay the costs of the proceeding
($1,860). App. to Pet. for Cert. 19a–25a.
The Florida Supreme Court adopted the referee’s recommendations.
138 So. 3d 379 (2014). The court explained that Canon 7C(1)
“clearly restricts a judicial candidate’s speech” and therefore
must be “narrowly tailored to serve a compelling state interest.”
Id., at 384. The court held that the Canon satisfies that
demanding inquiry. First, the court reasoned, prohibiting judicial
candidates from personally soliciting funds furthers Florida’s
compelling interest in “preserving the integrity of [its] judiciary
and maintaining the public’s confidence in an impartial judiciary.”
Ibid. (internal quotation marks omitted; alteration in
original). In the court’s view, “personal solicitation of campaign
funds, even by mass mailing, raises an appearance of impropriety
and calls into question, in the public’s mind, the judge’s
impartiality.”
Id., at 385. Second, the court concluded that
Canon 7C(1) is narrowly tailored to serve that compelling interest
because it “ ‘insulate[s] judicial candidates from the
solicitation and receipt of funds while leaving open, ample
alternative means for candidates to raise the resources necessary
to run their campaigns.’ ”
Id., at 387 (quoting
Simes v.
Arkansas Judicial Discipline & Disability
Comm’n, 368 Ark. 577, 588, 247 S. W. 3d 876, 883
(2007)).
The Florida Supreme Court acknowledged that some Federal Courts
of Appeals—“whose judges have lifetime appointments and thus do not
have to engage in fundraising”—had invalidated restrictions similar
to Canon 7C(1). 138 So. 3d, at 386, n. 3. But the court found
it persuasive that every State Supreme Court that had considered
similar fundraising provisions—along with several Fed-eral Courts
of Appeals—had upheld the laws against First Amendment challenges.
Id., at 386. Florida’s chief justice and one associate
justice dissented.
Id., at 389. We granted certiorari. 573
U. S. ___ (2014).
II
The First Amendment provides that Congress “shall make no law
. . . abridging the freedom of speech.” The Fourteenth
Amendment makes that prohibition applicable to the States.
Stromberg v.
California,283 U. S. 359,368
(1931). The parties agree that Canon 7C(1) restricts Yulee’s speech
on the basis of its content by prohibiting her from soliciting
contributions to her election campaign. The parties disagree,
however, about the level of scrutiny that should govern our
review.
We have applied exacting scrutiny to laws restricting the
solicitation of contributions to charity, upholding the speech
limitations only if they are narrowly tailored to serve a
compelling interest. See
Riley v.
National Federation of
Blind of N. C., Inc.,487 U. S. 781,798 (1988);
id.,
at 810 (Rehnquist, C. J., dissenting). As we have explained,
noncommercial solicitation “is characteristically intertwined with
informative and perhaps persuasive speech.”
Id., at 796
(majority opinion) (quoting
Schaumburg v.
Citizens for
Better Environment,444 U. S. 620,632 (1980)). Applying a
lesser standard of scrutiny to such speech would threaten “the
exercise of rights so vital to the maintenance of democratic
institutions.”
Schneider v.
State (Town of
Irvington),308 U. S. 147,161 (1939).
The principles underlying these charitable solicitation cases
apply with even greater force here. Before asking for money in her
fundraising letter, Yulee explained her fitness for the bench and
expressed her vision for the judiciary. Her stated purpose for the
solicitation was to get her “message out to the public.” App. to
Pet. for Cert. 32a. As we have long recognized, speech about public
issues and the qualifications of candidates for elected office
commands the highest level of First Amendment protection. See
Eu v.
San Francisco County Democratic Central
Comm.,489 U. S. 214,223 (1989). Indeed, in our only prior
case concerning speech restrictions on a candidate for judicial
office, this Court and both parties assumed that strict scrutiny
applied.
Republican Party of Minn. v.
White,536
U. S. 765,774 (2002).
Although the Florida Supreme Court upheld Canon 7C(1) under
strict scrutiny, the Florida Bar and several
amici contend
that we should subject the Canon to a more permissive standard:
that it be “closely drawn” to match a “sufficiently important
interest.”
Buckley v.
Valeo,424 U. S. 1,25
(1976) (
per curiam). The “closely drawn” standard is a poor
fit for this case. The Court adopted that test in
Buckley to
address a claim that campaign contribution limits violated a
contributor’s “freedom of political association.”
Id., at
24–25. Here, Yulee does not claim that Canon 7C(1) violates her
right to free association; she argues that it violates her right to
free speech. And the Florida Bar can hardly dispute that the Canon
infringes Yulee’s freedom to discuss candidates and public
issues—namely, herself and her qualifications to be a judge. The
Bar’s call to import the “closely drawn” test from the contribution
limit context into a case about solicitation therefore has little
avail.
As several of the Bar’s
amici note, we applied the
“closely drawn” test to solicitation restrictions in
McConnell v.
Federal Election Comm’n,540 U. S.
93,136 (2003), overruled in part by
Citizens United v.
Federal Election Comm’n,558 U. S. 310 (2010). But the
Court in that case determined that the solicitation restrictions
operated primarily to prevent circumvention of the contribution
limits, which were the subject of the “closely drawn” test in the
first place. 540 U. S., at 138–139.
McConnell offers no
help to the Bar here, because Florida did not adopt Canon 7C(1) as
an anticircumvention measure.
In sum, we hold today what we assumed in
White: A State
may restrict the speech of a judicial candidate only if the
restriction is narrowly tailored to serve a compelling
interest.
III
The Florida Bar faces a demanding task in defending Canon 7C(1)
against Yulee’s First Amendment challenge. We have emphasized that
“it is the rare case” in which a State demonstrates that a speech
restriction is narrowly tailored to serve a compelling interest.
Burson v.
Freeman,504 U. S. 191,211 (1992)
(plurality opinion). But those cases do arise. See
ibid.;
Holder v.
Humanitarian Law Project,561 U. S.
1–39 (2010);
McConnell, 540 U. S., at 314 (opinion of
Kennedy, J.); cf.
Adarand Constructors, Inc. v.
Peña,515 U. S. 200,237 (1995) (“we wish to dispel the
notion that strict scrutiny is ‘strict in theory, but fatal in
fact’ ”). Here, Canon 7C(1) advances the State’s compelling
interest in preserving public confidence in the integrity of the
judiciary, and it does so through means narrowly tailored to avoid
unnecessarily abridging speech. This is therefore one of the rare
cases in which a speech restriction withstands strict scrutiny.
A
The Florida Supreme Court adopted Canon 7C(1) to promote the
State’s interests in “protecting the integrity of the judiciary”
and “maintaining the public’s confidence in an impartial
judiciary.” 138 So. 3d, at 385. The way the Canon advances those
interests is intuitive: Judges, charged with exercising strict
neutrality and independence, cannot supplicate campaign donors
without diminishing public confidence in judicial integrity. This
principle dates back at least eight centuries to Magna Carta, which
proclaimed, “To no one will we sell, to no one will we refuse or
delay, right or justice.” Cl. 40 (1215), in W. McKechnie, Magna
Carta, A Commentary on the Great Charter of King John 395 (2d ed.
1914). The same concept underlies the common law judicial oath,
which binds a judge to “do right to all manner of people
. . . without fear or favour, affection or ill-will,” 10
Encyclopaedia of the Laws of England 105 (2d ed. 1908), and the
oath that each of us took to “administer justice without respect to
persons, and do equal right to the poor and to the rich,”28
U. S. C. §453. Simply put, Florida and most other States
have concluded that the public may lack confidence in a judge’s
ability to administer justice without fear or favor if he comes to
office by asking for favors.
The interest served by Canon 7C(1) has firm support in our
precedents. We have recognized the “vital state interest” in
safeguarding “public confidence in the fairness and integrity of
the nation’s elected judges.”
Caperton v.
A. T. Massey
Coal Co.,556 U. S. 868,889 (2009) (internal quotation
marks omitted). The importance of public confidence in the
integrity of judges stems from the place ofthe judiciary in the
government. Unlike the executive or the legislature, the judiciary
“has no influence over either the sword or the purse;
. . . neither force nor will but merely judgment.” The
Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton)
(capitalization altered). The judiciary’s authority therefore
depends in large measure on the public’s willingness to respect and
follow its decisions. As Justice Frankfurter once put it for the
Court, “justice must satisfy the appearance of justice.”
Offutt v.
United States,348 U. S. 11,14 (1954).
It follows that public perception of judicial integrity is “a state
interest of the highest order.”
Caperton, 556 U. S., at
889 (quoting
White, 536 U. S., at 793 (Kennedy, J.,
concurring)).
The principal dissent observes that bans on judicial candidate
solicitation lack a lengthy historical pedigree.
Post, at
1–2 (opinion of Scalia, J.). We do not dispute that fact, but it
has no relevance here. As the precedent cited by the principal
dissent demonstrates, a history and tradition of regulation are
important factors in determining whether to recognize “new
categories of unprotected speech.”
Brown v.
Entertainment
Merchants Assn., 564 U. S. ___, ___ (2011) (slip op., at
3); see
post, at 1. But nobody argues that solicitation of
campaign funds by judicial candidates is a category of unprotected
speech. As explained above, the First Amendment fully applies to
Yulee’s speech. The question is instead whether that Amendment
permits the particular regulation of speech at issue here.
The parties devote considerable attention to our cases analyzing
campaign finance restrictions in political elections. But a State’s
interest in preserving public confidence in the integrity of its
judiciary extends beyond its interest in preventing the appearance
of corruption in legislative and executive elections. As we
explained in
White, States may regulate judicial elections
differently than they regulate political elections, because the
role of judges differs from the role of politicians. 536
U. S., at 783;
id., at 805 (Ginsburg, J., dissenting).
Politicians are expected to be appropriately responsive to the
preferences of their supporters. Indeed, such “responsiveness is
key to the very concept of self-governance through elected
officials.”
McCutcheon v.
Federal Election Comm’n,
572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at
39). The same is not true of judges. In deciding cases, a judge is
not to follow the preferences of his supporters, or provide any
special consideration to his campaign donors. A judge instead must
“observe the utmost fairness,” striving to be “perfectly and
completely independent, with nothing to influence or controul him
but God and his conscience.” Address of John Marshall, in
Proceedings and Debates of the Virginia State Convention of
1829–1830, p. 616 (1830). As in
White, therefore, our
precedents applying the First Amendment to political elections have
little bearing on the issues here.
The vast majority of elected judges in States that allow
personal solicitation serve with fairness and honor. But “[e]ven if
judges were able to refrain from favoring donors, the mere
possibility that judges’ decisions may be moti-vated by the desire
to repay campaign contributions is likely to undermine the public’s
confidence in the judiciary.”
White, 536 U. S., at 790
(O’Connor, J., concurring). In the eyes of the public, a judge’s
personal solicitation could result (even unknowingly) in “a
possible temptation . . . which might lead him not to
hold the balance nice, clear and true.”
Tumey v.
Ohio,273 U. S. 510,532 (1927). That risk is especially
pronounced because most donors are lawyers and litigants who may
appear before the judge they are supporting. See A. Bannon, E.
Velasco, L. Casey, & L. Reagan, The New Politics of Judicial
Elections: 2011–12, p. 15 (2013).
The concept of public confidence in judicial integrity does not
easily reduce to precise definition, nor does it lend itself to
proof by documentary record. But no one denies that it is genuine
and compelling. In short, it is the regrettable but unavoidable
appearance that judges who personally ask for money may diminish
their integrity that prompted the Supreme Court of Florida and most
other States to sever the direct link between judicial candidates
and campaign contributors. As the Supreme Court of Oregon
explained, “the spectacle of lawyers or potential litigants
directly handing over money to judicial candidates should be
avoided if the public is to have faith in the impartiality of its
judiciary.”
In re Fadeley, 310 Ore. 548, 565, 802
P. 2d 31, 41 (1990). Moreover, personal solicitation by a
judicial candidate “inevitably places the solicited individuals in
a position to fear retaliation if they fail to financially support
that candidate.”
Simes, 368 Ark., at 585, 247 S. W. 3d,
at 882. Potential litigants then fear that “the integrity of the
judicial system has been compromised, forcing them to search for an
attorney in part based upon the criteria of which attorneys have
made the obligatory contributions.”
Ibid. A State’s decision
to elect its judges does not require it to tolerate these risks.
The Florida Bar’s interest is compelling.
B
Yulee acknowledges the State’s compelling interest in judicial
integrity. She argues, however, that the Canon’s failure to
restrict other speech equally damaging to judicial integrity and
its appearance undercuts the Bar’s position. In particular, she
notes that Canon 7C(1) allows a judge’s campaign committee to
solicit money, which arguably reduces public confidence in the
integrity of the judiciary just as much as a judge’s personal
solicitation. Yulee also points out that Florida permits judicial
candidates to write thank you notes to campaign donors, which
ensures that candidates know who contributes and who does not.
It is always somewhat counterintuitive to argue that a law
violates the First Amendment by abridging
too little speech.
We have recognized, however, that underinclusiveness can raise
“doubts about whether the government is in fact pursuing the
interest it invokes, rather than disfavoring a particular speaker
or viewpoint.”
Brown, 564 U. S., at ___ (slip op., at
14). In a textbook illustration of that principle, we invalidated a
city’s ban on ritual animal sacrifices because the city failed to
regulate vast swaths of conduct that similarly diminished its
asserted interests in public health and animal welfare.
Church
of Lukumi Babalu Aye, Inc. v.
Hialeah,508 U. S.
520–547 (1993).
Underinclusiveness can also reveal that a law does not actually
advance a compelling interest. For example, a State’s decision to
prohibit newspapers, but not electronic media, from releasing the
names of juvenile defendants suggested that the law did not advance
its stated purpose of protecting youth privacy.
Smith v.
Daily Mail Publishing Co.,443 U. S. 97–105 (1979).
Although a law’s underinclusivity raises a red flag, the First
Amendment imposes no freestanding “underinclusiveness limitation.”
R. A. V. v.
St. Paul,505 U. S. 377,387
(1992) (internal quotation marks omitted). A State need not address
all aspects of a problem in one fell swoop; policymakers may focus
on their most pressing concerns. We have accordingly upheld
laws—even under strict scrutiny—that conceivably could have
restricted even greater amounts of speech in service of their
stated interests.
Burson, 504 U. S., at 207; see
McConnell, 540 U. S., at 207–208;
Metromedia,
Inc. v.
San Diego,453 U. S. 490–512 (1981)
(plurality opinion);
Buckley, 424 U. S., at 105.
Viewed in light of these principles, Canon 7C(1) raises no fatal
underinclusivity concerns. The solicitation ban aims squarely at
the conduct most likely to undermine public confidence in the
integrity of the judiciary: personal requests for money by judges
and judicial candidates. The Canon applies evenhandedly to all
judges and judicial candidates, regardless of their viewpoint or
chosen means of solicitation. And unlike some laws that we have
found impermissibly underinclusive, Canon 7C(1) is not riddled with
exceptions. See
City of Ladue v.
Gilleo,512
U. S. 43–53 (1994). Indeed, the Canon contains zero exceptions
to its ban on personal solicitation.
Yulee relies heavily on the provision of Canon 7C(1) that allows
solicitation by a candidate’s campaign committee. But Florida,
along with most other States, has reasonably concluded that
solicitation by the candidate personally creates a categorically
different and more severe risk of undermining public confidence
than does solicitation by a campaign committee. The identity of the
solicitor matters, as anyone who has encountered a Girl Scout
selling cookies outside a grocery store can attest. When the
judicial candidate himself asks for money, the stakes are higher
for all involved. The candidate has personally invested his time
and effort in the fundraising appeal; he has placed his name and
reputation behind the request. The solicited individual knows that,
and also knows that the solicitor might be in a position to
singlehandedly make decisions of great weight: The same person who
signed the fundraising letter might one day sign the judgment. This
dynamic inevitably creates pressure for the recipient to comply,
and it does so in a way that solicitation by a third party does
not. Just as inevitably, the personal involvement of the candidate
in the solicitation creates the public appearance that the
candidate will remember who says yes, and who says no.
In short, personal solicitation by judicial candidates
implicates a different problem than solicitation by campaign
committees. However similar the two solicitations may be in
substance, a State may conclude that they present markedly
different appearances to the public. Florida’s choice to allow
solicitation by campaign commit-tees does not undermine its
decision to ban solicitation by judges.
Likewise, allowing judicial candidates to write thank you notes
to campaign donors does not detract from the State’s interest in
preserving public confidence in the integrity of the judiciary.
Yulee argues that permitting thank you notes heightens the
likelihood of actual bias by ensuring that judicial candidates know
who supported their campaigns, and ensuring that the supporter
knows that the candidate knows. Maybe so. But the State’s
compelling interest is implicated most directly by the candidate’s
personal solicitation itself. A failure to ban thank you notes for
contributions not solicited by the candidate does not undercut the
Bar’s rationale.
In addition, the State has a good reason for allowing candidates
to write thank you notes and raise money through committees. These
accommodations reflect Flor-ida’s effort to respect the First
Amendment interests of candidates and their contributors—to resolve
the “fundamental tension between the ideal character of the
judicial office and the real world of electoral politics.”
Chisom v.
Roemer,501 U. S. 380,400 (1991). They
belie the principal dissent’s suggestion that Canon 7C(1) reflects
general “hostility toward judicial campaigning” and has “nothing to
do with the appearances created by judges’ asking for money.”
Post, at 11. Nothing?
The principal dissent also suggests that Canon 7C(1) is
underinclusive because Florida does not ban judicial candidates
from asking individuals for personal gifts or loans.
Post,
at 10. But Florida law treats a personal “gift” or “loan” as a
campaign contribution if the donor makes it “for the purpose of
influencing the results of an election,” Fla. Stat. §106.011(5)(a),
and Florida’s Judicial Qualifications Commission has determined
that a judicial candidate violates Canon 7C(1) by personally
soliciting such a loan. See
In re Turner, 76 So. 3d
898, 901–902 (Fla. 2011). In any event, Florida can ban personal
solicitation of campaign funds by judicial candidates without
making them obey a comprehensive code to leading an ethical life.
Underinclusivity creates a First Amendment concern when the State
regulates one aspect of a problem while declining to regulate a
different aspect of the problem that affects its stated interest
in a comparable way. See
Flor-ida Star v.
B. J. F.,491 U. S. 524,540 (1989). The
principal dissent offers no basis to conclude that judicial
candidates are in the habit of soliciting personal loans, football
tickets, or anything of the sort.
Post, at 10. Even under
strict scrutiny, “[t]he First Amendment does not require States to
regulate for problems that do not exist.”
Burson, 504
U. S., at 207 (State’s regulation of political solicitation
around a polling place, but not charitable or commercial
solicitation, was not fatally underinclusive under strict
scrutiny).
Taken to its logical conclusion, the position advanced by Yulee
and the principal dissent is that Florida may ban the solicitation
of funds by judicial candidates only if the State bans
all
solicitation of funds in judicial elections. The First Amendment
does not put a State to that all-or-nothing choice. We will not
punish Florida for leaving open more, rather than fewer, avenues of
expression, especially when there is no indication that the
selective restriction of speech reflects a pretextual motive.
C
After arguing that Canon 7C(1) violates the First Amendment
because it restricts too little speech, Yulee argues that the Canon
violates the First Amendment because it restricts too much. In her
view, the Canon is not narrowly tailored to advance the State’s
compelling interest through the least restrictive means. See
United States v.
Playboy Entertainment Group,
Inc.,529 U. S. 803,813 (2000).
By any measure, Canon 7C(1) restricts a narrow slice of speech.
A reader of Justice Kennedy’s dissent could be forgiven for
concluding that the Court has just upheld a latter-day version of
the Alien and Sedition Acts, approving “state censorship” that
“locks the First Amendment out,” imposes a “gag” on candidates, and
inflicts “dead weight” on a “silenced” public debate.
Post,
at 2–4. But in reality, Canon 7C(1) leaves judicial candidates free
to discuss any issue with any person at any time. Candidates can
write letters, give speeches, and put up billboards. They can
contact potential supporters in person, on the phone, or online.
They can promote their campaigns on radio, television, or other
media. They cannot say, “Please give me money.” They can, however,
direct their campaign committees to do so. Whatever else may be
said of the Canon, it is surely not a “wildly disproportionate
restriction upon speech.”
Post, at 1 (Scalia, J.,
dissenting).
Indeed, Yulee concedes—and the principal dissent seems to agree,
post, at 8
—that Canon 7C(1) is valid in numerous
applications. Yulee acknowledges that Florida can prohibit judges
from soliciting money from lawyers and litigants appearing before
them. Reply Brief 18. In addition, she says the State “might” be
able to ban “direct one-to-one solicitation of lawyers and
individuals or businesses that could reasonably appear in the court
for which the individual is a candidate.”
Ibid. She also
suggests that the Bar could forbid “in person” solicitation by
judicial candidates. Tr. of Oral Arg. 7; cf.
Ohralik v.
Ohio State Bar Assn.,436 U. S. 447 (1978) (permitting
State to ban in person solicitation of clients by lawyers). But
Yulee argues that the Canon cannot constitutionally be applied to
her chosen form of solicitation: a letter posted online and
distributed via mass mailing. No one, she contends, will lose
confidence in the integrity of the judiciary based on personal
solicitation to such a broad audience.
This argument misperceives the breadth of the compelling
interest that underlies Canon 7C(1). Florida has reasonably
determined that personal appeals for money by a judicial candidate
inherently create an appearance of impropriety that may cause the
public to lose confidence in the integrity of the judiciary. That
interest may be implicated to varying degrees in particular
contexts, but the interest remains whenever the public perceives
the judge personally asking for money.
Moreover, the lines Yulee asks us to draw are unwork-able. Even
under her theory of the case, a mass mailing would create an
appearance of impropriety if addressed to a list of all lawyers and
litigants with pending cases. So would a speech soliciting
contributions from the 100 most frequently appearing attorneys in
the jurisdiction. Yulee says she might accept a ban on one-to-one
solicitation, but is the public impression really any different if
a judicial candidate tries to buttonhole not one prospective donor
but two at a time? Ten? Yulee also agrees that in person
solicitation creates a problem. But would the public’s concern
recede if the request for money came in a phone call or a text
message?
We decline to wade into this swamp. The First Amendment requires
that Canon 7C(1) be narrowly tailored, not that it be “perfectly
tailored.”
Burson, 504 U. S., at 209. The impossibility
of perfect tailoring is especially apparent when the State’s
compelling interest is as intangible as public confidence in the
integrity of the judiciary. Yulee is of course correct that some
personal solicitations raise greater concerns than others. A judge
who passes the hat in the courthouse creates a more serious
appearance of impropriety than does a judicial candidate who makes
a tasteful plea for support on the radio. But most problems arise
in greater and lesser gradations, and the First Amendment does not
confine a State to addressing evils in their most acute form. See
id., at 210. Here, Florida has concluded that all personal
solicitations by judicial candidates create a public appearance
that undermines confidence in the integrity of the judiciary;
banning all personal solicitations by judicial candidates is
narrowly tailored to address that concern.
In considering Yulee’s tailoring arguments, we are mindful that
most States with elected judges have determined that drawing a line
between personal solicitation by candidates and solicitation by
committees is necessary to preserve public confidence in the
integrity of the judiciary. These considered judgments deserve our
respect, especially because they reflect sensitive choices by
States in an area central to their own governance—how to select
those who “sit as their judges.”
Gregory v.
Ashcroft,501 U. S. 452,460 (1991).
Finally, Yulee contends that Florida can accomplish its
compelling interest through the less restrictive means of recusal
rules and campaign contribution limits. We dis-agree. A rule
requiring judges to recuse themselves from every case in which a
lawyer or litigant made a campaign contribution would disable many
jurisdictions. And a flood of postelection recusal motions could
“erode public confidence in judicial impartiality” and thereby
exacerbate the very appearance problem the State is trying to
solve.
Caperton, 556 U. S., at 891 (Roberts,
C. J., dissenting). Moreover, the rule that Yulee envisions
could create a perverse incentive for litigants to make campaign
contributions to judges solely as a means to trigger their later
recusal—a form of peremptory strike against a judge that would
enable transparent forum shopping.
As for campaign contribution limits, Florida already applies
them to judicial elections. Fla. Stat. §106.08(1)(a). A State may
decide that the threat to public confidence created by personal
solicitation exists apart from the amount of money that a judge or
judicial candidate seeks. Even if Florida decreased its
contribution limit, the ap-pearance that judges who personally
solicit funds might improperly favor their campaign donors would
remain. Although the Court has held that contribution limits
advance the interest in preventing
quid pro quo corruption
and its appearance in political elections, we have never held that
adopting contribution limits precludes a State from pursuing its
compelling interests through additional means. And in any event, a
State has compelling interests in regulating judicial elections
that extend beyond its interests in regulating political elections,
because judges are not politicians.
In sum, because Canon 7C(1) is narrowly tailored to serve a
compelling government interest, the First Amendment poses no
obstacle to its enforcement in this case. As a result of our
decision, Florida may continue to prohibit judicial candidates from
personally soliciting campaign funds, while allowing them to raise
money through committees and to otherwise communicate their
electoral messages in practically any way. The principal dissent
faults us for not answering a slew of broader questions, such as
whether Florida may cap a judicial candidate’s spending or ban
independent expenditures by corporations.
Post, at 8–9.
Yulee has not asked these questions, and for good reason—they are
far afield from the narrow regulation actually at issue in this
case.
We likewise have no cause to consider whether the citizens of
States that elect their judges have decided anything about the
“oracular sanctity of judges” or whether judges are due “a hearty
helping of humble pie.”
Post,at 12. The principal dissent
could be right that the decision to adopt judicial elections
“probably springs,” at least in part, from a desire to make judges
more accountable to the public,
ibid., although the history
on this matter is more complicated. See J. Shugerman, The People’s
Courts, at 5 (arguing that States adopted judicial elections to
increase judicial independence). In any event, it is a long way
from general notions of judicial accountability to the principal
dissent’s view, which evokes nothing so much as Delacroix’s
painting of Liberty leading a determined band of
citoyens,
this time against a robed aristocracy scurrying to shore up the
ramparts of the judicial castle through disingenuous ethical rules.
We claim no similar insight into the People’s passions, hazard no
assertions about ulterior motives of those who promulgated Canon
7C(1), and firmly reject the charge of a deceptive “pose of
neutrality” on the part of those who uphold it.
Post, at
12.
* * *
The desirability of judicial elections is a question that has
sparked disagreement for more than 200 years. Hamilton believed
that appointing judges to positions with life tenure constituted
“the best expedient which can be devised in any government to
secure a steady, upright, and impartial administration of the
laws.” The Federalist No. 78, at 465. Jefferson thought that making
judges “dependent on none but themselves” ran counter to the
principle of “a government founded on the public will.” 12 The
Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts
reflect the view of Hamilton; most States have sided with
Jefferson. Both methods have given our Nation jurists of wisdom and
rectitude who have devoted themselves to maintaining “the public’s
respect . . . and a reserve of public goodwill, without
becoming subservient to public opinion.” Rehnquist, Judicial
Independence, 38 U. Rich. L. Rev. 579, 596 (2004).
It is not our place to resolve this enduring debate. Our limited
task is to apply the Constitution to the question presented in this
case. Judicial candidates have a First Amendment right to speak in
support of their campaigns. States have a compelling interest in
preserving public confidence in their judiciaries. When the State
adopts a narrowly tailored restriction like the one at issue here,
those principles do not conflict. A State’s decision to elect
judges does not compel it to compromise public confidence in their
integrity.
The judgment of the Florida Supreme Court is
Affirmed.