Williams-Yulee v. Florida Bar ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WILLIAMS-YULEE v. FLORIDA BAR
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 13–1499. Argued January 20, 2015—Decided April 29, 2015
Florida is one of 39 States where voters elect judges at the polls. To
promote public confidence in the integrity of the judiciary, the Florida
Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct,
which provides that judicial candidates “shall not personally solicit
campaign funds . . . but may establish committees of responsible per-
sons” to raise money for election campaigns.
Petitioner Lanell Williams-Yulee (Yulee) mailed and posted online
a letter soliciting financial contributions to her campaign for judicial
office. The Florida Bar disciplined her for violating a Florida Bar
Rule requiring candidates to comply with Canon 7C(1), but Yulee
contended that the First Amendment protects a judicial candidate’s
right to personally solicit campaign funds in an election. The Florida
Supreme Court upheld the disciplinary sanctions, concluding that
Canon 7C(1) is narrowly tailored to serve the State’s compelling in-
terest.
Held: The judgment is affirmed.
138 So. 3d 379, affirmed.
CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except
as to Part II, concluding that the First Amendment permits Canon
7C(1)’s ban on the personal solicitation of campaign funds by judicial
candidates. Pp. 8–22.
(a) Florida’s interest in preserving public confidence in the integri-
ty of its judiciary is compelling. The State may conclude that judges,
charged with exercising strict neutrality and independence, cannot
supplicate campaign donors without diminishing public confidence in
judicial integrity. Simply put, 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. This Court’s precedents have recog-
nized the “vital state interest” in safeguarding “ ‘public confidence in
2 WILLIAMS-YULEE v. FLORIDA BAR
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the fairness and integrity of the nation’s elected judges,’ ” Caperton v.
A. T. Massey Coal Co., 556 U. S. 868, 889. Unlike the legislature or
the executive, the judiciary “has no influence over either the sword or
the purse,” Federalist No. 78, p. 465 (A. Hamilton), so its authority
depends in large measure on the public’s willingness to respect and
follow its decisions. Public perception of judicial integrity is accord-
ingly “ ‘a state interest of the highest order.’ ” 556 U. S., at 889.
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, because a judge’s
role differs from that of a politician. Republican Party of Minn. v.
White, 536 U. S. 765, 783. Unlike a politician, who is expected to be
appropriately responsive to the preferences of supporters, a judge in
deciding cases may not follow the preferences of his supporters or
provide any special consideration to his campaign donors. As in
White, therefore, precedents applying the First Amendment to politi-
cal elections have little bearing on the issues here.
The vast majority of elected judges in States allowing personal so-
licitation serve with fairness and honor, but in the eyes of the public,
a judicial candidate’s personal solicitation could result (even unknow-
ingly) 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.
That risk is especially pronounced where most donors are lawyers
and litigants who may appear before the judge they are supporting.
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 sev-
er the direct link between judicial candidates and campaign contribu-
tors. Pp. 9–12.
(b) Canon 7C(1) raises no fatal underinclusivity concerns. The so-
licitation 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 ev-
enhandedly to all judges and judicial candidates, regardless of view-
point or means of solicitation. And unlike some laws that have been
found impermissibly underinclusive, Canon 7C(1) is not riddled with
exceptions.
Yulee relies heavily on the provision of Canon 7C(1) that allows so-
licitation 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. When the judicial candidate himself asks for
money, the stakes are higher for all involved. A judicial candidate
Cite as: 575 U. S. ____ (2015) 3
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asking for money places his name and reputation behind the request,
and the solicited individual knows that the same person who signed
the fundraising letter might one day sign the judgment. This dynam-
ic inevitably creates pressure for the recipient to comply, 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. However similar the two solicitations may be in
substance, a State may conclude that they present markedly different
appearances to the public.
Permitting a judicial candidate to write thank you notes to cam-
paign donors likewise does not detract from the State’s interest in
preserving public confidence in the integrity of the judiciary. The
State’s compelling interest is implicated most directly by the candi-
date’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 Florida’s effort to respect the First Amend-
ment interests of candidates and their contributors—to resolve the
“fundamental tension between the ideal character of the judicial of-
fice and the real world of electoral politics.” Chisom v. Roemer, 501
U. S. 380, 400. The State should not be punished for leaving open
more, rather than fewer, avenues of expression, especially when
there is no indication of a pretextual motive for the selective re-
striction of speech. Pp. 12–16.
(c) Canon 7C(1) is also not overinclusive. By any measure, it re-
stricts a narrow slice of speech. It leaves judicial candidates free to
discuss any issue with any person at any time; to write letters, give
speeches, and put up billboards; to contact potential supporters in
person, on the phone, or online; and to promote their campaigns
through the media. Though they cannot ask for money, they can di-
rect their campaign committees to do so.
Yulee concedes that Canon 7C(1) is valid in numerous applications,
but she contends that the Canon cannot constitutionally be applied to
her chosen form of solicitation: a letter posted online and distributed
via mass mailing. This argument misperceives the breadth of the
compelling interest underlying 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 inter-
est may be implicated to varying degrees in particular contexts, but
the interest remains whenever the public perceives the judge person-
4 WILLIAMS-YULEE v. FLORIDA BAR
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ally asking for money. Canon 7C(1) must be narrowly tailored, not
“perfectly tailored.” Burson v. Freeman, 504 U. S. 191, 209. The
First Amendment does not confine a State to addressing evils in their
most acute form. Here, Florida has concluded that all personal solici-
tations by judicial candidates create a public appearance that un-
dermines confidence in the integrity of the judiciary; banning all per-
sonal solicitations by judicial candidates is narrowly tailored to
address that concern.
Yulee errs in contending that Florida can accomplish its compelling
interest through recusal rules and campaign contribution limits. A
rule requiring recusal in every case in which a lawyer or litigant
made a campaign contribution would disable many jurisdictions, and
a flood of postelection recusal motions could exacerbate the very ap-
pearance problem the State is trying to solve. As for contribution
limits, Florida already applies them to judicial elections, and this
Court has never held that adopting such limits precludes a State
from pursuing its compelling interests through additional means.
The desirability of judicial elections is a question that has sparked
disagreement for more than 200 years, but it is not the Court’s place
to resolve that enduring debate. The Court’s limited task is to apply
the Constitution to the question presented in this case. Judicial can-
didates 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 tai-
lored restriction like the one at issue here, those principles do not
conflict. A State’s decision to elect judges does not compel it to com-
promise public confidence in their integrity. Pp. 16–22.
ROBERTS, C. J., delivered the opinion of the Court, except as to Part
II. BREYER, SOTOMAYOR, and KAGAN, JJ., joined that opinion in full, and
GINSBURG, J., joined except as to Part II. BREYER, J., filed a concurring
opinion. GINSBURG, J., filed an opinion concurring in part and concur-
ring in the judgment, in which BREYER, J., joined as to Part II. SCALIA,
J., filed a dissenting opinion, in which THOMAS, J., joined. KENNEDY, J.,
and ALITO, J., filed dissenting opinions.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 Sen-
ate, 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 judg-
ment of the Florida Supreme Court.
2 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
I
A
When Florida entered the Union in 1845, its Constitu-
tion 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 Peo-
ple’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 Consti-
tution 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 ap-
pointed 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 Reten-
tion 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 sen-
tence 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
Cite as: 575 U. S. ____ (2015) 3
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be preserved.” Ibid. Canon 2 directs that a judge “shall
act at all times in a manner that promotes public confi-
dence 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 partici-
pating 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 ju-
dicial office that is filled by public election between
competing candidates shall not personally solicit cam-
paign 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 pub-
lic 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 cam-
paign 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
4 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
campaign committee, learn the identity of campaign con-
tributors, and send thank you notes to donors. An Aid to
Understanding Canon 7, pp. 51–58 (2014).
Like Florida, most other States prohibit judicial candi-
dates 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 Associa-
tion 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 an-
nouncing her candidacy. The letter described her experi-
ence 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 Cam-
paign 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–
Cite as: 575 U. S. ____ (2015) 5
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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 fund-
raising letter. But she argued that the Bar could not
discipline her for that conduct because the First Amend-
ment protects a judicial candidate’s right to solicit cam-
paign funds in an election.* 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 rec-
ommendations. 138 So. 3d 379 (2014). The court ex-
plained that Canon 7C(1) “clearly restricts a judicial can-
didate’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 in-
quiry. First, the court reasoned, prohibiting judicial can-
didates 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, “per-
sonal solicitation of campaign funds, even by mass mail-
ing, 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)
——————
* Yulee also contended that she had not violated Canon 7C(1), which
applies to “a judicial office that is filled by public election between
competing candidates,” because the incumbent judge had not declared
his campaign for reelection at the time she sent her solicitation letter.
She has since abandoned that argument.
6 WILLIAMS-YULEE v. FLORIDA BAR
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Opinion ofOBERTS
of R the Court
, C. J.
is narrowly tailored to serve that compelling interest
because it “ ‘insulate[s] judicial candidates from the solici-
tation 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 fundrais-
ing”—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 Federa­
tion of Blind of N. C., Inc., 487 U. S. 781, 798 (1988); id.,
at 810 (Rehnquist, C. J., dissenting). As we have ex-
plained, noncommercial solicitation “is characteristically
Cite as: 575 U. S. ____ (2015) 7
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Opinion ofOBERTS
of R the Court
, C. J.
intertwined with informative and perhaps persuasive
speech.” Id., at 796 (majority opinion) (quoting Schaum­
burg 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 candi-
date for judicial office, this Court and both parties as-
sumed 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 associa-
tion; 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
8 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
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 solici-
tation 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), over-
ruled 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. Free­
man, 504 U. S. 191, 211 (1992) (plurality opinion). But
those cases do arise. See ibid.; Holder v. Humanitarian
Law Project, 561 U. S. 1, 25–39 (2010); McConnell, 540
U. S., at 314 (opinion of KENNEDY, J.); cf. Adarand Con­
structors, 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
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
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 independ-
ence, cannot supplicate campaign donors without dimin-
ishing public confidence in judicial integrity. This princi-
ple 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 per-
sons, 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 inter-
est” 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 quo-
tation marks omitted). The importance of public confi-
dence in the integrity of judges stems from the place of
the judiciary in the government. Unlike the executive or the
legislature, the judiciary “has no influence over either the
10 WILLIAMS-YULEE v. FLORIDA BAR
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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 judici-
ary’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 tradi-
tion 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 elec-
tions. But a State’s interest in preserving public confi-
dence 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
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
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 offi-
cials.” 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
12 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
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 can-
didates 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 judi-
cial 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 candi-
dates 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
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
speech. We have recognized, however, that underinclu-
siveness 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, 543–
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 Publish­
ing Co., 443 U. S. 97, 104–105 (1979).
Although a law’s underinclusivity raises a red flag, the
First Amendment imposes no freestanding “underinclu-
siveness 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 inter-
ests. Burson, 504 U. S., at 207; see McConnell, 540 U. S.,
at 207–208; Metromedia, Inc. v. San Diego, 453 U. S. 490,
511–512 (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
14 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
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,
52–53 (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 cook-
ies 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 cam-
paign 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-
Cite as: 575 U. S. ____ (2015) 15
Opinion of the Court
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 “funda-
mental 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 princi-
pal 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 can-
didates 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 Qualifica-
tions Commission has determined that a judicial candi-
date violates Canon 7C(1) by personally soliciting such a
loan. See In re Turner, 76 So. 3d 898, 901–902 (Fla. 2011).
16 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
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 princi-
pal dissent offers no basis to conclude that judicial candi-
dates 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).
Cite as: 575 U. S. ____ (2015) 17
Opinion of the Court
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, approv-
ing “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. Candi-
dates can write letters, give speeches, and put up bill-
boards. They can contact potential supporters in person,
on the phone, or online. They can promote their cam-
paigns 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 dispropor-
tionate 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 busi-
nesses 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 judi-
cial 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.
18 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
This argument misperceives the breadth of the compel-
ling 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 impli-
cated 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 Amend-
ment 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
Cite as: 575 U. S. ____ (2015) 19
Opinion of the Court
concluded that all personal solicitations by judicial candi-
dates create a public appearance that undermines confi-
dence 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 deter-
mined 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 contri-
butions 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-
20 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
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 ques-
tions, such as whether Florida may cap a judicial candi-
date’s spending or ban independent expenditures by cor-
porations. 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 deci-
sion 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
Cite as: 575 U. S. ____ (2015) 21
Opinion of the Court
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. Ham-
ilton believed that appointing judges to positions with life
tenure constituted “the best expedient which can be de-
vised 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 “de-
pendent on none but themselves” ran counter to the prin-
ciple 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,
22 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of the Court
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.
Cite as: 575 U. S. ____ (2015) 1
BREYER, J., concurring
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]
JUSTICE BREYER, concurring.
As I have previously said, I view this Court’s doctrine
referring to tiers of scrutiny as guidelines informing our
approach to the case at hand, not tests to be mechanically
applied. See, e.g., United States v. Alvarez, 567 U. S. ___,
___ (2012) (BREYER, J., concurring in judgment) (slip op.,
at 1–3); Nixon v. Shrink Missouri Government PAC, 528
U. S. 377, 400–403 (2000) (BREYER, J., concurring). On
that understanding, I join the Court’s opinion.
Cite as: 575 U. S. ____ (2015) 1
Opinion of GINSBURG, J.
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]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins
as to Part II, concurring in part and concurring in the
judgment.
I
I join the Court’s opinion save for Part II. As explained
in my dissenting opinion in Republican Party of Minnesota
v. White, 536 U. S. 765, 803 (2002), I would not apply
exacting scrutiny to a State’s endeavor sensibly to “differ-
entiate elections for political offices . . . , from elections
designed to select those whose office it is to administer
justice without respect to persons,” id., at 805.
II
I write separately to reiterate the substantial latitude,
in my view, States should possess to enact campaign-
finance rules geared to judicial elections. “Judges,” the
Court rightly recognizes, “are not politicians,” ante, at 1,
so “States may regulate judicial elections differently than
they regulate political elections,” ante, at 10. And because
“the role of judges differs from the role of politicians,”
ibid., this Court’s “precedents applying the First Amend-
ment to political elections [should] have little bearing” on
elections to judicial office. Ante, at 11.
The Court’s recent campaign-finance decisions, trained
on political actors, should not hold sway for judicial elec-
2 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of GINSBURG, J.
tions. In Citizens United v. Federal Election Comm’n, 558
U. S. 310 (2010), the Court invalidated a campaign-finance
restriction designed to check the outsized influence of
monied interests in politics. Addressing the Government’s
asserted interest in preventing “influence over or access to
elected officials,” id., at 359, the Court observed that
“[f ]avoritism and influence” are inevitable “in representa-
tive politics.” Ibid. (quoting McConnell v. Federal Elec-
tion Comm’n, 540 U. S. 93, 297 (KENNEDY, J., concurring
in judgment in part and dissenting in part); emphasis
added). A plurality of the Court responded similarly in
McCutcheon v. Federal Election Comm’n, 572 U. S. ___
(2014), when it addressed the prospect that wealthy do-
nors would have ready access to, and could therefore
influence, elected policymakers. “[A] central feature of
democracy,” the plurality maintained, is “that constituents
support candidates who share their beliefs and interests,
and candidates who are elected can be expected to be
responsive to those concerns.” Id., at ___ (slip op., at 2).
For reasons spelled out in the dissenting opinions in
Citizens United and McCutcheon, I would have upheld the
legislation there at issue. But even if one agrees with
those judgments, they are geared to elections for repre-
sentative posts, and should have “little bearing” on judicial
elections. Ante, at 11. “Favoritism,” i.e., partiality, if
inevitable in the political arena, is disqualifying in the
judiciary’s domain. See Marshall v. Jerrico, Inc., 446 U. S.
238, 242 (1980) (“The Due Process Clause entitles a person
to an impartial and disinterested tribunal in both civil and
criminal cases.”). Unlike politicians, judges are not “ex-
pected to be responsive to [the] concerns” of constituents.
McCutcheon, 572 U. S., at ___ (plurality opinion) (slip op.,
at 2). Instead, “it is the business of judges to be indiffer-
ent to popularity.” Chisom v. Roemer, 501 U. S. 380, 401,
n. 29 (1991) (internal quotation marks omitted).
States may therefore impose different campaign-finance
Cite as: 575 U. S. ____ (2015) 3
Opinion of GINSBURG, J.
rules for judicial elections than for political elections.
Experience illustrates why States may wish to do so.
When the political campaign-finance apparatus is applied
to judicial elections, the distinction of judges from politi-
cians dims. Donors, who gain audience and influence
through contributions to political campaigns, anticipate
that investment in campaigns for judicial office will yield
similar returns. Elected judges understand this dynamic.
As Ohio Supreme Court Justice Paul Pfeifer put it:
“Whether they succeed or not,” campaign contributors
“mean to be buying a vote.” Liptak & Roberts, Campaign
Cash Mirrors a High Court’s Rulings, N. Y. Times, Oct. 1,
2006, pp. A1, A22 (internal quotation marks omitted).
In recent years, moreover, issue-oriented organizations
and political action committees have spent millions of
dollars opposing the reelection of judges whose decisions
do not tow a party line or are alleged to be out of step with
public opinion. Following the Iowa Supreme Court’s 2009
invalidation of the State’s same-sex marriage ban, for
example, national organizations poured money into a
successful campaign to remove three justices from that
Court. J. Shugerman, The People’s Courts: Pursuing
Judicial Independence in America 3 (2012). Attack adver-
tisements funded by issue or politically driven organiza-
tions portrayed the justices as political actors; they lam-
basted the Iowa Supreme Court for “usurp[ing] the will of
voters.” A. Skaggs, M. da Silva, L. Casey, & C. Hall, The
New Politics of Judicial Elections 2009–10, p. 9 (C. Hall
ed. 2011) (internal quotation marks omitted).
Similarly portraying judges as belonging to another
political branch, huge amounts have been spent on adver-
tisements opposing retention of judges because they ren-
dered unpopular decisions in favor of criminal defendants.
D. Goldberg, S. Samis, E. Bender, & R. Weiss, The New
Politics of Judicial Elections 2004, pp. 5, 10–11 (J.
Rutledge ed. 2005) (hereinafter Goldberg). In North Caro-
4 WILLIAMS-YULEE v. FLORIDA BAR
Opinion of GINSBURG, J.
lina, for example, in 2014, a political action committee
aired “a widely condemned TV spot accusing [North Caro-
lina Supreme Court Justice Robin] Hudson of being ‘soft’
on child-molesters.” Oliphant, When Judges Go Courting,
National Journal Magazine, Oct. 18, 2014, p. 28. And in
West Virginia, as described in Caperton v. A. T. Massey
Coal Co., 556 U. S. 868, 873 (2009), coal executive Don
Blankenship lavishly funded a political action committee
called “And For The Sake Of The Kids.” That group
bought advertisements accusing Justice Warren McGraw
of freeing a “child rapist” and allowing that “rapist” to
“work as a janitor at a West Virginia school.” Goldberg 4;
see A. Bannon, E. Velasco, L. Casey, & L. Reagan, The
New Politics of Judicial Elections 2011–12, p. 22 (L. Kin-
ney and P. Hardin eds. 2013) (reporting that in 2011 and
2012, interest-oriented groups were 22 times more likely
to purchase an “attack” advertisement than were judicial
candidates themselves).
Disproportionate spending to influence court judgments
threatens both the appearance and actuality of judicial
independence. Numerous studies report that the money
pressure groups spend on judicial elections “can affect
judicial decision-making across a broad range of cases.”
Brief for Professors of Law, Economics, and Political Sci-
ence as Amici Curiae 14 (hereinafter Professors’ Brief), see
id., at 5–17; J. Shepherd & M. Kang, Skewed Justice 1
(2014), available at http://skewedjustice.org (All Internet
materials as visited Apr. 24, 2015, and included in Clerk
of Court’s case file) (finding that a recent “explosion in
spending on television attack advertisements . . . has
made courts less likely to rule in favor of defendants in
criminal appeals”).
How does the electorate perceive outsized spending on
judicial elections? Multiple surveys over the past 13 years
indicate that voters overwhelmingly believe direct contri-
butions to judges’ campaigns have at least “some influ-
Cite as: 575 U. S. ____ (2015) 5
Opinion of GINSBURG, J.
ence” on judicial decisionmaking. See Professors’ Brief
23 (citing polls). Disquieting as well, in response
to a recent poll, 87% of voters stated that advertisements
purchased by interest groups during judicial elections
can have either “some” or “a great deal of influence” on an
elected “judge’s later decisions.” Justice at Stake/Brennan
Center National Poll 3, Question 9 (Oct. 22–24,
2013) (conducted by 20/20 Insight LLC), available at
http://www.justiceatstake.org/file.cfm/media/news/toplines
337_B2D51323DC5D0.pdf.
“A State’s decision to elect its judges does not require it
to tolerate these risks.” Ante, at 12. What may be true of
happy families, L. Tolstoy, Anna Karenina 1 (R. Pevear
and L. Volokhonsky transls. 2000) (“All happy families are
alike”), or of roses, G. Stein, Sacred Emily, in Geography
and Plays 178, 187 (1922) (reprint 1968) (“Rose is a rose is
a rose is a rose”), does not hold true in elections of every
kind. States should not be put to the polar choices of
either equating judicial elections to political elections, or
else abandoning public participation in the selection of
judges altogether. Instead, States should have leeway to
“balance the constitutional interests in judicial integrity
and free expression within the unique setting of an
elected judiciary.” White, 536 U. S., at 821 (GINSBURG, J.,
dissenting).
Cite as: 575 U. S. ____ (2015) 1
SCALIA, J., dissenting
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]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
An ethics canon adopted by the Florida Supreme Court
bans a candidate in a judicial election from asking anyone,
under any circumstances, for a contribution to his cam-
paign. Faithful application of our precedents would have
made short work of this wildly disproportionate restriction
upon speech. Intent upon upholding the Canon, however,
the Court flattens one settled First Amendment principle
after another.
I
The first axiom of the First Amendment is this: As a
general rule, the state has no power to ban speech on the
basis of its content. One need not equate judges with
politicians to see that this principle does not grow weaker
merely because the censored speech is a judicial candi-
date’s request for a campaign contribution. Our cases hold
that speech enjoys the full protection of the First Amend-
ment unless a widespread and longstanding tradition
ratifies its regulation. Brown v. Entertainment Merchants
Assn., 564 U. S. ___, ___ (2011) (slip op., at 3). No such
tradition looms here. Georgia became the first State to
elect its judges in 1812, and judicial elections had spread
to a large majority of the States by the time of the Civil
2 WILLIAMS-YULEE v. FLORIDA BAR
SCALIA, J., dissenting
War. Republican Party of Minn. v. White, 536 U. S. 765,
785 (2002). Yet there appears to have been no regulation
of judicial candidates’ speech throughout the 19th and
early 20th centuries. Ibid. The American Bar Association
first proposed ethics rules concerning speech of judicial
candidates in 1924, but these rules did not achieve wide-
spread adoption until after the Second World War. Id., at
786.
Rules against soliciting campaign contributions arrived
more recently still. The ABA first proposed a canon advis-
ing against it in 1972, and a canon prohibiting it only in
1990. See Brief for American Bar Association as Amicus
Curiae 2–4. Even now, 9 of the 39 States that elect judges
allow judicial candidates to ask for campaign contribu-
tions. See id., at 4. In the absence of any long-settled
custom about judicial candidates’ speech in general or
their solicitations in particular, we have no basis for relax-
ing the rules that normally apply to laws that suppress
speech because of content.
One likewise need not equate judges with politicians to
see that the electoral setting calls for all the more vigi-
lance in ensuring observance of the First Amendment.
When a candidate asks someone for a campaign contribu-
tion, he tends (as the principal opinion acknowledges) also
to talk about his qualifications for office and his views on
public issues. Ante, at 6–7 (plurality opinion). This ex-
pression lies at the heart of what the First Amendment is
meant to protect. In addition, banning candidates from
asking for money personally “favors some candidates over
others—incumbent judges (who benefit from their current
status) over non-judicial candidates, the well-to-do (who
may not need to raise any money at all) over lower-income
candidates, and the well-connected (who have an army of
potential fundraisers) over outsiders.” Carey v. Wolnitzek,
614 F. 3d 189, 204 (CA6 2010). This danger of legislated
(or judicially imposed) favoritism is the very reason the
Cite as: 575 U. S. ____ (2015) 3
SCALIA, J., dissenting
First Amendment exists.
Because Canon 7C(1) restricts fully protected speech on
the basis of content, it presumptively violates the First
Amendment. We may uphold it only if the State meets its
burden of showing that the Canon survives strict scru-
tiny—that is to say, only if it shows that the Canon is nar-
rowly tailored to serve a compelling interest. I do not for a
moment question the Court’s conclusion that States have
different compelling interests when regulating judicial
elections than when regulating political ones. Unlike a
legislator, a judge must be impartial—without bias for or
against any party or attorney who comes before him. I
accept for the sake of argument that States have a compel-
ling interest in ensuring that its judges are seen to be
impartial. I will likewise assume that a judicial candi-
date’s request to a litigant or attorney presents a danger
of coercion that a political candidate’s request to a con-
stituent does not. But Canon 7C(1) does not narrowly
target concerns about impartiality or its appearance; it ap-
plies even when the person asked for a financial contribu-
tion has no chance of ever appearing in the candidate’s
court. And Florida does not invoke concerns about coer-
cion, presumably because the Canon bans solicitations re-
gardless of whether their object is a lawyer, litigant, or
other person vulnerable to judicial pressure. So Canon
7C(1) fails exacting scrutiny and infringes the First
Amendment. This case should have been just that
straightforward.
II
The Court concludes that Florida may prohibit personal
solicitations by judicial candidates as a means of preserv-
ing “public confidence in the integrity of the judiciary.”
Ante, at 8. It purports to reach this destination by
applying strict scrutiny, but it would be more accurate
to say that it does so by applying the appearance of strict
4 WILLIAMS-YULEE v. FLORIDA BAR
SCALIA, J., dissenting
scrutiny.
A
The first sign that mischief is afoot comes when the
Court describes Florida’s compelling interest. The State
must first identify its objective with precision before one
can tell whether that interest is compelling and whether
the speech restriction narrowly targets it. In White, for
example, the Court did not allow a State to invoke hazy
concerns about judicial impartiality in justification of an
ethics rule against judicial candidates’ announcing their
positions on legal issues. 536 U. S., at 775. The Court
instead separately analyzed the State’s concerns about
judges’ bias against parties, preconceptions on legal is-
sues, and openmindedness, and explained why each con-
cern (and each for a different reason) did not suffice to
sustain the rule. Id., at 775–780.
In stark contrast to White, the Court today relies on
Florida’s invocation of an ill-defined interest in “public
confidence in judicial integrity.” The Court at first sug-
gests that “judicial integrity” involves the “ability to ad-
minister justice without fear or favor.” Ante, at 9. As its
opinion unfolds, however, today’s concept of judicial integ-
rity turns out to be “a mere thing of wax in the hands of
the judiciary, which they may twist, and shape into any
form they please.” 12 The Works of Thomas Jefferson 137
(P. Ford ed. 1905). When the Court explains how solicita-
tion undermines confidence in judicial integrity, integrity
starts to sound like saintliness. It involves independence
from any “ ‘possible temptation’ ” that “ ‘might lead’ ” the
judge, “even unknowingly,” to favor one party. Ante, at 11
(emphasis added). When the Court turns to distinguish-
ing in-person solicitation from solicitation by proxy, the
any-possible-temptation standard no longer helps and
thus drops out. The critical factors instead become the
“pressure” a listener feels during a solicitation and the
Cite as: 575 U. S. ____ (2015) 5
SCALIA, J., dissenting
“appearance that the candidate will remember who says
yes, and who says no.” Ante, at 14. But when it comes
time to explain Florida’s decision to allow candidates to
write thank-you notes, the “appearance that the candidate
. . . remember[s] who says yes” gets nary a mention. Ante,
at 14–15. And when the Court confronts Florida’s decision
to prohibit mass-mailed solicitations, concern about pres-
sure fades away. Ante, at 18. More outrageous still, the
Court at times molds the interest in the perception that
judges have integrity into an interest in the perception
that judges do not solicit—for example when it says, “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.”
Ante, at 19. This is not strict scrutiny; it is sleight of
hand.
B
The Court’s twistifications have not come to an end;
indeed, they are just beginning. In order to uphold Canon
7C(1) under strict scrutiny, Florida must do more than
point to a vital public objective brooding overhead. The
State must also meet a difficult burden of demonstrating
that the speech restriction substantially advances the
claimed objective. The State “bears the risk of uncertainty,”
so “ambiguous proof will not suffice.” Entertainment
Merchants, 564 U. S., at ___ (slip op., at 12). In an arrest-
ing illustration, this Court held that a law punishing lies
about winning military decorations like the Congressional
Medal of Honor failed exacting scrutiny, because the
Government could not satisfy its “heavy burden” of prov-
ing that “the public’s general perception of military
awards is diluted by false claims.” United States v. Alva-
rez, 567 U. S. ___, ___ (2012) (plurality opinion) (slip op.,
at 14).
6 WILLIAMS-YULEE v. FLORIDA BAR
SCALIA, J., dissenting
Now that we have a case about the public’s perception of
judicial honor rather than its perception of military hon-
ors, the Justices of this Court change the rules. The Court
announces, on the basis of its “intuiti[on],” that allowing
personal solicitations will make litigants worry that
“ ‘judges’ decisions may be motivated by the desire to repay
campaign contributions.’ ” Ante, at 11. But this case is not
about whether Yulee has the right to receive campaign
contributions. It is about whether she has the right to ask
for campaign contributions that Florida’s statutory law
already allows her to receive. Florida bears the burden of
showing that banning requests for lawful contributions
will improve public confidence in judges—not just a little
bit, but significantly, because “the Government does not
have a compelling interest in each marginal percentage
point by which its goals are advanced.” Entertainment
Merchants, supra, at ___, n. 9 (slip op., at 16, n. 9).
Neither the Court nor the State identifies the slightest
evidence that banning requests for contributions will
substantially improve public trust in judges. Nor does
common sense make this happy forecast obvious. The
concept of judicial integrity “dates back at least eight
centuries,” ante, at 9, and judicial elections in America
date back more than two centuries, supra, at 1—but rules
against personal solicitations date back only to 1972,
supra, at 2. The peaceful coexistence of judicial elections
and personal solicitations for most of our history calls into
doubt any claim that allowing personal solicitations would
imperil public faith in judges. Many States allow judicial
candidates to ask for contributions even today, but nobody
suggests that public confidence in judges fares worse in
these jurisdictions than elsewhere. And in any event, if
candidates’ appeals for money are “ ‘characteristically
intertwined’ ” with discussion of qualifications and views
on public issues, ante, at 7 (plurality opinion), how can the
Court be so sure that the public will regard them as im-
Cite as: 575 U. S. ____ (2015) 7
SCALIA, J., dissenting
proprieties rather than as legitimate instances of cam-
paigning? In the final analysis, Florida comes nowhere
near making the convincing demonstration required by
our cases that the speech restriction in this case substan-
tially advances its objective.
C
But suppose we play along with the premise that pro-
hibiting solicitations will significantly improve the public
reputation of judges. Even then, Florida must show that
the ban restricts no more speech than necessary to achieve
the objective. See Sable Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 126 (1989).
Canon 7C(1) falls miles short of satisfying this require-
ment. The Court seems to accept Florida’s claim that
solicitations erode public confidence by creating the per-
ception that judges are selling justice to lawyers and
litigants. Ante, at 9. Yet the Canon prohibits candidates
from asking for money from anybody—even from someone
who is neither lawyer nor litigant, even from someone who
(because of recusal rules) cannot possibly appear before
the candidate as lawyer or litigant. Yulee thus may not
call up an old friend, a cousin, or even her parents to ask
for a donation to her campaign. The State has not come
up with a plausible explanation of how soliciting someone
who has no chance of appearing in the candidate’s court
will diminish public confidence in judges.
No less important, Canon 7C(1) bans candidates from
asking for contributions even in messages that do not
target any listener in particular—mass-mailed letters,
flyers posted on telephone poles, speeches to large gather-
ings, and Web sites addressed to the general public. Mes-
sages like these do not share the features that lead the
Court to pronounce personal solicitations a menace to
public confidence in the judiciary. Consider online solici-
tations. They avoid “ ‘the spectacle of lawyers or potential
8 WILLIAMS-YULEE v. FLORIDA BAR
SCALIA, J., dissenting
litigants directly handing over money to judicial candi-
dates,’ ” ante, at 12. People who come across online solici-
tations do not feel “pressure” to comply with the request,
ante, at 14. Nor does the candidate’s signature on the
online solicitation suggest “that the candidate will re-
member who says yes, and who says no,” ibid. Yet Canon
7C(1) prohibits these and similar solicitations anyway.
This tailoring is as narrow as the Court’s scrutiny is strict.
Perhaps sensing the fragility of the initial claim that all
solicitations threaten public confidence in judges, the
Court argues that “the lines Yulee asks [it] to draw are
unworkable.” Ante, at 18. That is a difficulty of the
Court’s own imagination. In reality, the Court could have
chosen from a whole spectrum of workable rules. It could
have held that States may regulate no more than solicita-
tion of participants in pending cases, or solicitation of
people who are likely to appear in the candidate’s court, or
even solicitation of any lawyer or litigant. And it could
have ruled that candidates have the right to make fund-
raising appeals that are not directed to any particular
listener (like requests in mass-mailed letters), or at least
fundraising appeals plainly directed to the general public
(like requests placed online). The Supreme Court of Flor-
ida has made similar accommodations in other settings. It
allows sitting judges to solicit memberships in civic organ-
izations if (among other things) the solicitee is not “likely
ever to appear before the court on which the judge serves.”
Code of Judicial Conduct for the State of Florida 23 (2014)
(Judicial Conduct Code). And it allows sitting judges to
accept gifts if (among other things) “the donor is not a
party or other person . . . whose interests have come or are
likely to come before the judge.” Id., at 24. It is not too
much to ask that the State show election speech similar
consideration.
The Court’s accusation of unworkability also suffers
from a bit of a pot-kettle problem. Consider the many
Cite as: 575 U. S. ____ (2015) 9
SCALIA, J., dissenting
real-world questions left open by today’s decision. Does
the First Amendment permit restricting a candidate’s
appearing at an event where somebody else asks for cam-
paign funds on his behalf? See Florida Judicial Ethics
Advisory Committee Opinion No. 2012–14 (JEAC Op.).
Does it permit prohibiting the candidate’s family from
making personal solicitations? See ibid. Does it allow
prohibiting the candidate from participating in the crea-
tion of a Web site that solicits funds, even if the candi-
date’s name does not appear next to the request? See
JEAC Op. No. 2008–11. More broadly, could Florida ban
thank-you notes to donors? Cap a candidate’s campaign
spending? Restrict independent spending by people other
than the candidate? Ban independent spending by corpo-
rations? And how, by the way, are judges supposed to
decide whether these measures promote public confidence
in judicial integrity, when the Court does not even have a
consistent theory about what it means by “judicial integ-
rity”? For the Court to wring its hands about workability
under these circumstances is more than one should have
to bear.
D
Even if Florida could show that banning all personal
appeals for campaign funds is necessary to protect public
confidence in judicial integrity, the Court must overpower
one last sentinel of free speech before it can uphold Canon
7C(1). Among its other functions, the First Amendment is
a kind of Equal Protection Clause for ideas. The state
ordinarily may not regulate one message because it harms
a government interest yet refuse to regulate other mes-
sages that impair the interest in a comparable way. Ap-
plying this principle, we invalidated a law that prohibited
picketing dwellings but made an exception for picketing
about labor issues; the State could not show that labor
picketing harmed its asserted interest in residential pri-
10 WILLIAMS-YULEE v. FLORIDA BAR
SCALIA, J., dissenting
vacy any less than other kinds of picketing. Carey v.
Brown, 447 U. S. 455, 464–465 (1980). In another case, we
set aside a ban on showing movies containing nudity in
drive-in theaters, because the government did not demon-
strate that movies with nude scenes would distract pass-
ing drivers any more than, say, movies with violent
scenes. Erznoznik v. Jacksonville, 422 U. S. 205, 214–215
(1975).
The Court’s decision disregards these principles. The
Court tells us that “all personal solicitations by judicial
candidates create a public appearance that undermines
confidence in the integrity of the judiciary.” Ante, at 19.
But Canon 7C(1) does not restrict all personal solicita-
tions; it restricts only personal solicitations related to
campaigns. The part of the Canon challenged here prohib-
its personal pleas for “campaign funds,” and the Canon
elsewhere prohibits personal appeals to attorneys for
“publicly stated support.” Judicial Conduct Code 38. So
although Canon 7C(1) prevents Yulee from asking a law-
yer for a few dollars to help her buy campaign pamphlets,
it does not prevent her asking the same lawyer for a per-
sonal loan, access to his law firm’s luxury suite at the local
football stadium, or even a donation to help her fight the
Florida Bar’s charges. What could possibly justify these
distinctions? Surely the Court does not believe that re-
quests for campaign favors erode public confidence in a
way that requests for favors unrelated to elections do not.
Could anyone say with a straight face that it looks worse
for a candidate to say “please give my campaign $25” than
to say “please give me $25”?*
——————
* Neither Florida nor the Court identifies any other ethics rule that
would prevent candidates like Yulee from asking for favors unrelated to
elections, and I know of none. The Supreme Court of Florida has
adopted various rules restricting sitting judges’ solicitation and ac-
ceptance of favors, but these rules do not bind challengers like Yulee.
Cite as: 575 U. S. ____ (2015) 11
SCALIA, J., dissenting
Fumbling around for a fig-leaf, the Court says that “the
First Amendment imposes no freestanding ‘underinclu-
siveness limitation.’ ” Ante, at 13. This analysis elides the
distinction between selectivity on the basis of content and
selectivity on other grounds. Because the First Amend-
ment does not prohibit underinclusiveness as such, law-
makers may target a problem only at certain times or in
certain places. Because the First Amendment does pro-
hibit content discrimination as such, lawmakers may not
target a problem only in certain messages. Explaining
this distinction, we have said that the First Amendment
would allow banning obscenity “only in certain media or
markets” but would preclude banning “only that obscenity
which includes offensive political messages.” R. A. V. v.
St. Paul, 505 U. S. 377, 387–388 (1992) (emphasis delet-
ed). This case involves selectivity on the basis of content.
The Florida Supreme Court has decided to eliminate the
appearances associated with “personal appeals for money,”
ante, at 18, when the appeals seek money for a campaign
but not when the appeals seek money for other purposes.
That distinction violates the First Amendment. See
Erznoznik, supra, at 215.
Even on the Court’s own terms, Canon 7C(1) cannot
stand. The Court concedes that “underinclusiveness can
raise ‘doubts about whether the government is in fact
pursuing the interest it invokes.’ ” Ante, at 13. Canon
7C(1)’s scope suggests that it has nothing to do with the
appearances created by judges’ asking for money, and
everything to do with hostility toward judicial campaign-
——————
See, e.g., Canon 4D(2)(a), Judicial Conduct Code 18–19 (“A judge as [a
member or officer of an organization] . . . shall not personally or directly
participate in the solicitation of funds . . . ”); Canon 5D(5), id., at 24 (“A
judge shall not accept . . . a gift, bequest, favor or loan . . .”); JEAC Op.
No. 2010–14 (“[J]udicial candidates are only governed by Canon 7, and
not by the remainder of the Code of Judicial Conduct”).
12 WILLIAMS-YULEE v. FLORIDA BAR
SCALIA, J., dissenting
ing. How else to explain the Florida Supreme Court’s
decision to ban all personal appeals for campaign funds
(even when the solicitee could never appear before the
candidate), but to tolerate appeals for other kinds of funds
(even when the solicitee will surely appear before the
candidate)? It should come as no surprise that the ABA,
whose model rules the Florida Supreme Court followed
when framing Canon 7C(1), opposes judicial elections—
preferring instead a system in which (surprise!) a commit-
tee of lawyers proposes candidates from among whom the
Governor must make his selection. See White, 536 U. S.,
at 787.
The Court tries to strike a pose of neutrality between
appointment and election of judges, but no one should be
deceived. A Court that sees impropriety in a candidate’s
request for any contributions to his election campaign does
not much like judicial selection by the people. One cannot
have judicial elections without judicial campaigns, and
judicial campaigns without funds for campaigning, and
funds for campaigning without asking for them. When a
society decides that its judges should be elected, it neces-
sarily decides that selection by the people is more im-
portant than the oracular sanctity of judges, their immun-
ity from the (shudder!) indignity of begging for funds, and
their exemption from those shadows of impropriety that
fall over the proletarian public officials who must run for
office. A free society, accustomed to electing its rulers,
does not much care whether the rulers operate through
statute and executive order, or through judicial distortion
of statute, executive order, and constitution. The prescrip-
tion that judges be elected probably springs from the
people’s realization that their judges can become their
rulers—and (it must be said) from just a deep-down feel-
ing that members of the Third Branch will profit from a
hearty helping of humble pie, and from a severe reduction
of their great remove from the (ugh!) People. (It should
Cite as: 575 U. S. ____ (2015) 13
SCALIA, J., dissenting
not be thought that I myself harbor such irreverent and
revolutionary feelings; but I think it likely—and year by
year more likely—that those who favor the election of
judges do so.) In any case, hostility to campaigning by
judges entitles the people of Florida to amend their Con-
stitution to replace judicial elections with the selection of
judges by lawyers’ committees; it does not entitle the
Florida Supreme Court to adopt, or this Court to endorse,
a rule of judicial conduct that abridges candidates’ speech
in the judicial elections that the Florida Constitution
prescribes.
* * *
This Court has not been shy to enforce the First
Amendment in recent Terms—even in cases that do not
involve election speech. It has accorded robust protection
to depictions of animal torture, sale of violent video games
to children, and lies about having won military medals.
See United States v. Stevens, 559 U. S. 460 (2010); Enter-
tainment Merchants, 564 U. S. ___; Alvarez, 567 U. S. ___.
Who would have thought that the same Court would today
exert such heroic efforts to save so plain an abridgement of
the freedom of speech? It is no great mystery what is
going on here. The judges of this Court, like the judges of
the Supreme Court of Florida who promulgated Canon
7C(1), evidently consider the preservation of public respect
for the courts a policy objective of the highest order. So it
is—but so too are preventing animal torture, protecting
the innocence of children, and honoring valiant soldiers.
The Court did not relax the Constitution’s guarantee of
freedom of speech when legislatures pursued those goals;
it should not relax the guarantee when the Supreme Court
of Florida pursues this one. The First Amendment is not
abridged for the benefit of the Brotherhood of the Robe.
I respectfully dissent.
Cite as: 575 U. S. ____ (2015) 1
KENNEDY, J., dissenting
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]
JUSTICE KENNEDY, dissenting.
The dissenting opinion by JUSTICE SCALIA gives a full
and complete explanation of the reasons why the Court’s
opinion contradicts settled First Amendment principles.
This separate dissent is written to underscore the irony in
the Court’s having concluded that the very First Amend-
ment protections judges must enforce should be lessened
when a judicial candidate’s own speech is at issue. It is
written to underscore, too, the irony in the Court’s having
weakened the rigors of the First Amendment in a case
concerning elections, a paradigmatic forum for speech and
a process intended to protect freedom in so many other
manifestations.
First Amendment protections are both personal and
structural. Free speech begins with the right of each
person to think and then to express his or her own ideas.
Protecting this personal sphere of intellect and conscience,
in turn, creates structural safeguards for many of the
processes that define a free society. The individual speech
here is political speech. The process is a fair election.
These realms ought to be the last place, not the first, for
the Court to allow unprecedented content-based re-
strictions on speech. See Monitor Patriot Co. v. Roy, 401
U. S. 265, 272 (1971) (the First Amendment has its “fullest
and most urgent application precisely to the conduct of
2 WILLIAMS-YULEE v. FLORIDA BAR
KENNEDY, J., dissenting
campaigns for political office”). As James Madison ob-
served: “A popular Government, without popular infor-
mation, or the means of acquiring it, is but a Prologue to a
Farce or a Tragedy; or, perhaps both. [A] people who
mean to be their own Governors, must arm themselves
with the power which knowledge gives.” Letter to William
T. Berry (Aug. 4, 1822), in J. Madison, Writings 790
(J. Rakove ed. 1999). The Court’s decision in this case im-
perils the content neutrality essential both for individual
speech and the election process.
With all due respect for the Court, it seems fair and
necessary to say its decision rests on two premises, neither
one correct. One premise is that in certain elections—here
an election to choose the best qualified judge—the public
lacks the necessary judgment to make an informed choice.
Instead, the State must protect voters by altering the
usual dynamics of free speech. The other premise is that
since judges should be accorded special respect and dig-
nity, their election can be subject to certain content-based
rules that would be unacceptable in other elections. In my
respectful view neither premise can justify the speech
restriction at issue here. Although States have a compel-
ling interest in seeking to ensure the appearance and the
reality of an impartial judiciary, it does not follow that the
State may alter basic First Amendment principles in
pursuing that goal. See Republican Party of Minn. v.
White, 536 U. S. 765, 788 (2002).
While any number of troubling consequences will follow
from the Court’s ruling, a simple example can suffice to
illustrate the dead weight its decision now ties to public
debate. Assume a judge retires, and two honest lawyers,
Doe and Roe, seek the vacant position. Doe is a respected,
prominent lawyer who has been active in the community
and is well known to business and civic leaders. Roe, a
lawyer of extraordinary ability and high ethical standards,
keeps a low profile. As soon as Doe announces his or her
Cite as: 575 U. S. ____ (2015) 3
KENNEDY, J., dissenting
candidacy, a campaign committee organizes of its own
accord and begins raising funds. But few know or hear
about Roe’s potential candidacy, and no one with resources
or connections is available to assist in raising the funds
necessary for even a modest plan to speak to the elec-
torate. Today the Court says the State can censor Roe’s
speech, imposing a gag on his or her request for funds, no
matter how close Roe is to the potential benefactor or
donor. The result is that Roe’s personal freedom, the right
of speech, is cut off by the State.
The First Amendment consequences of the Court’s
ruling do not end with its denial of the individual’s right to
speak. For the very purpose of the candidate’s fundraising
was to facilitate a larger speech process: an election cam-
paign. By cutting off one candidate’s personal freedom to
speak, the broader campaign debate that might have
followed—a debate that might have been informed by new
ideas and insights from both candidates—now is silenced.
Elections are a paradigmatic forum for speech. Though
present day campaign rhetoric all too often might thwart
or obscure deliberative discourse, the idea of elections is
that voters can engage in, or at least consider, a principled
debate. That debate can be a means to find consensus for
a civic course that is prudent and wise. This pertains both
to issues and to the choice of elected officials. The First
Amendment seeks to make the idea of discussion, open
debate, and consensus-building a reality. But the Court
decides otherwise. The Court locks the First Amendment
out.
Whether an election is the best way to choose a judge is
itself the subject of fair debate. But once the people of a
State choose to have elections, the First Amendment
protects the candidate’s right to speak and the public’s
ensuing right to open and robust debate. See ibid. One
advantage of judicial elections is the opportunity offered
for the public to become more knowledgeable about their
4 WILLIAMS-YULEE v. FLORIDA BAR
KENNEDY, J., dissenting
courts and their law. This might stimulate discourse over
the requisite and highest ethical standards for the judici-
ary, including whether the people should elect a judge who
personally solicits campaign funds. Yet now that teaching
process is hindered by state censorship. By allowing the
State’s speech restriction, the Court undermines the
educational process that free speech in elections should
facilitate.
It is not within our Nation’s First Amendment tradition
to abridge speech simply because the government believes
a question is too difficult or too profound for voters. If the
State is concerned about unethical campaign practices, it
need not revert to the assumption that voters themselves
are insensitive to ethics. Judicial elections were created to
enable citizens to decide for themselves which judges are
best qualified and which are most likely to “stand by the
constitution of the State against the encroachment of
power.” Report of the Debates and Proceedings of the
Convention for the Revision of the Constitution of the
State of New York 672 (1846). The Court should not now
presume citizens are unequipped for that task when it
comes to judging for themselves who should judge them.
If there is concern about principled, decent, and
thoughtful discourse in election campaigns, the First
Amendment provides the answer. That answer is more
speech. See, e.g., Whitney v. California, 274 U. S. 357, 377
(1927) (Brandeis, J., concurring) (when the government
objects to speech, “the remedy to be applied is more
speech, not enforced silence”). For example, candidates
might themselves agree to appoint members of a panel
charged with periodic evaluation of campaign statements,
candor, and fairness. Those evaluations could be made
public. And any number of private organizations or voter
groups seeking to evaluate campaign rhetoric could do the
same. See White, supra, at 795 (KENNEDY, J. concurring).
Modern communication technologies afford voters and
Cite as: 575 U. S. ____ (2015) 5
KENNEDY, J., dissenting
candidates an unparalleled opportunity to engage in the
campaign and election process. These technologies may
encourage a discourse that is principled and informed.
The Internet, in particular, has increased in a dramatic
way the rapidity and pervasiveness with which ideas may
spread. Whether as a result of disclosure laws or a candi-
date’s voluntary decision to make the campaign transpar-
ent, the Internet can reveal almost at once how a candi-
date sought funds; who the donors were; and what
amounts they gave. Indeed, disclosure requirements offer
a powerful, speech-enhancing method of deterring corrup-
tion—one that does not impose limits on how and when
people can speak. See Doe v. Reed, 561 U. S. 186, 199
(2010) (“Public disclosure also promotes transparency and
accountability in the electoral process to an extent other
measures cannot”). Based on disclosures the voters can
decide, among other matters, whether the public is well
served by an elected judiciary; how each candidate defines
appropriate campaign conduct (which may speak volumes
about his or her judicial demeanor); and what persons and
groups support or oppose a particular candidate. See
Buckley v. Valeo, 424 U. S. 1, 67 (1976) (per curiam). With
detailed information about a candidate’s practices in
soliciting funds, voters may be better informed in choosing
those judges who are prepared to do justice “without fear
or favor.” 10 Encyclopaedia of the Laws of England 105
(2d ed. 1908). The speech the Court now holds foreclosed
might itself have been instructive in this regard, and it
could have been open to the electorate’s scrutiny. Judicial
elections, no less than other elections, presuppose faith in
democracy. Judicial elections are no exception to the
premise that elections can teach.
In addition to narrowing the First Amendment’s reach,
there is another flaw in the Court’s analysis. That is its
error in the application of strict scrutiny. The Court’s
evisceration of that judicial standard now risks long-term
6 WILLIAMS-YULEE v. FLORIDA BAR
KENNEDY, J., dissenting
harm to what was once the Court’s own preferred First
Amendment test. As JUSTICE SCALIA well explains, the
state law at issue fails strict scrutiny for any number of
reasons. The candidate who is not wealthy or well con-
nected cannot ask even a close friend or relative for a bit of
financial help, despite the lack of any increased risk of
partiality and despite the fact that disclosure laws might
be enacted to make the solicitation and support public.
This law comes nowhere close to being narrowly tailored.
And by saying that it survives that vital First Amendment
requirement, the Court now writes what is literally a
casebook guide to eviscerating strict scrutiny any time the
Court encounters speech it dislikes. On these premises,
and for the reasons explained in more detail by JUSTICE
SCALIA, it is necessary for me to file this respectful dissent.
Cite as: 575 U. S. ____ (2015) 1
ALITO, J., dissenting
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]
JUSTICE ALITO, dissenting.
I largely agree with what I view as the essential ele-
ments of the dissents filed by JUSTICES SCALIA and
KENNEDY. The Florida rule before us regulates speech
that is part of the process of selecting those who wield the
power of the State. Such speech lies at the heart of the
protection provided by the First Amendment. The Florida
rule regulates that speech based on content and must
therefore satisfy strict scrutiny. This means that it must
be narrowly tailored to further a compelling state interest.
Florida has a compelling interest in making sure that its
courts decide cases impartially and in accordance with the
law and that its citizens have no good reason to lack confi-
dence that its courts are performing their proper role. But
the Florida rule is not narrowly tailored to serve that
interest.
Indeed, this rule is about as narrowly tailored as a
burlap bag. It applies to all solicitations made in the
name of a candidate for judicial office—including, as was
the case here, a mass mailing. It even applies to an ad in
a newspaper. It applies to requests for contributions in
any amount, and it applies even if the person solicited is
not a lawyer, has never had any interest at stake in any
case in the court in question, and has no prospect of ever
having any interest at stake in any litigation in that court.
2 WILLIAMS-YULEE v. FLORIDA BAR
ALITO, J., dissenting
If this rule can be characterized as narrowly tailored, then
narrow tailoring has no meaning, and strict scrutiny,
which is essential to the protection of free speech, is seri-
ously impaired.
When petitioner sent out a form letter requesting cam-
paign contributions, she was well within her First
Amendment rights. The Florida Supreme Court violated
the Constitution when it imposed a financial penalty and
stained her record with a finding that she had engaged in
unethical conduct. I would reverse the judgment of the
Florida Supreme Court.