Seventh Circuit Says No to Judge’s Request to Endorse Candidates

In Siefert v Alexander, the Seventh Circuit held that a Wisconsin Circuit Court Judge, John Siefert, did not have a First Amendment right to endorse candidates for office in light of  a prohibition contained in the Wisconsin Code of Judicial Conduct. The district court had found that the code provisions prohibiting a judge or judicial candidate from announcing a partisan affiliation, endorsing partisan candidates and personally soliciting contributions violated the First Amendment.  The Seventh Circuit agreed that the State’s prohibitions were content-based and affirmed the district court’s finding that the prohibition on speech announcing party affiliation was not narrowly tailored to serve a compelling state interest.  It held that a less restrictive alternative of recusal in the event of bias was an available remedy which would not ban such speech outright.

However, the Court found that the prohibitions against partisan candidate endorsements was permissible and did not violate Judge Siefert’s speech rights. Rather than apply strict scrutiny, the court applied a balancing approach to this prohibition.  It found that Wisconsin had an interest in regulating the non-campaign political activities of its judges and that prohibiting endorsements served that interest. The majority likened this restriction to the regulation of political speech in the workplace, such as under the Hatch Act, where federal employees are prohibited from engaging in political activity on the job.  Thus, the Court reasoned that a “more deferential approach to government prohibition” was appropriate.

With respect to the solicitation ban, the Court found that the prohibition was a content-based restriction but found that the ban was narrowly tailored to preserve judicial impartiality and prevent corruption.

In a dissent, Judge Rovner disagreed that a lesser standard than strict scrutiny was appropriate with respect to the political endorsement ban since it was a clearly a content-based restriction.  She noted: “The majority concedes that under a strict scrutiny analysis, the regulation . . . would fail. Rather than reach that unpalatable result, however, it has manufactured a new balancing test not heretofore applied to the First Amendment rights of elected judges.”  Judge Rovner explained that the Wisconsin rules permitted judges to make non-partisan endorsements  and that the under-inclusiveness of the provision was fatal to the rule’s constitutionality.  She explained her disagreement with the majority’s analysis:  “Thus, although elected judges are not like other elected officials, they are also not like public employees subject to Pickering [v. Board of Ed. of Township High School Dist. 205, 391 U.S. 563 (1968)] — that is, employees who answer only to the government as employer and not to the public at large.”

Judge Rovner’s dissent is convincing.  If the rules constitute content-based speech restrictions, strict scrutiny should apply.

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