Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech

Abstract

In Nevada Commission on Ethics v. Carrigan, the Supreme Court ruled that the First Amendment was not violated by a state ethics rule prohibiting public officials from voting on legislative matters with respect to which they have a conflict of interest. Carrigan is one of those cases where the Supreme Court reached the right result for the wrong reasons - in this instance, egregiously wrong reasons that threaten First Amendment principles. Justice Scalia’s majority opinion in the case takes the position that the vote of a member of a state legislature is not an expressive act and therefore is entitled to no protection whatsoever under the First Amendment. This position establishes a dangerous principle that seriously restricts the meaning of free speech. Moreover, Justice Scalia’s reasoning in the case is by turns incoherent, illogical, and disrespectful of precedent. Had Justice Scalia been willing to follow long-standing First Amendment doctrine, the case could have been decided the same way without setting forth the dangerous principle that a legislator’s vote is not an expressive act under the First Amendment.

Keywords: Freedom of Speech, Right to Vote