Justices reject argument that officials’ votes are protected free speech

Posted June 13, 2011, at 5:43 p.m.

WASHINGTON — The Supreme Court upheld ethics laws across the nation that forbid legislators and city council members from voting on matters in which they have a conflict of interest, rejecting the argument that governmental votes cast by elected officials are “free speech” protected by the First Amendment.

Conflict-of-interest rules “have been commonplace for over 200 years,” said Justice Antonin Scalia, and they have never been thought to infringe on the free speech rights of lawmakers, he said.

The issue arose when Michael Carrigan, a city councilman from Sparks, Nev., was censured by the Nevada Commission on Ethics because he had cast a vote in favor of a hotel and casino project that was backed by his campaign manager. The commission said that under the state ethics law, he was required to abstain from voting because of his close relationship with the campaign manager.

Carrigan appealed and won a ruling from the Nevada Supreme Court. Its judges held that “voting by public officers on public issues is protected speech under the First Amendment.”

The U.S. Supreme Court voted 9-0 to reverse the Nevada high court in a decision announced Monday.

In the past, the court has said the Constitution gives legislators a right to speak freely, but it does not give them a right to cast a vote on matters in which they have a conflict of interest, Scalia said. The right to vote in a legislative body “is not personal to the legislator but belongs to the people. The legislator has no personal right to it,” he said.

Allowing the Nevada decision to stand would threaten ethics laws nationwide, the justices were told. They took up the state’s appeal and rejected the free speech defense in Nevada Commission on Ethics v. Carrigan.

Meanwhile, the court, evenly split 4-4, left in place a law that makes it harder for foreign-born children to claim U.S. citizenship through an unwed father compared to unwed mother.

It is a rare gender distinction that remains in U.S. law. Ruben Flores-Villar was born in Mexico to a Mexican mother and a teenage American father, who raised him in San Diego. Under the law, an unwed mother can transfer her citizenship to her foreign-born child if she lived in the United States for a year. However, an unwed father must prove he lived in the U.S. for at least five years after his 14th birthday to transfer his citizenship to his child.

Flores-Villar challenged the law on the grounds that different treatment for fathers and mothers violated the “equal protection of the laws.” But with Justice Elena Kagan sitting out, the remaining justices said they were divided and could not issue a ruling.

Still pending before the high court is a major free speech dispute over video games and whether California can limit the sale of violent video games to minors. Arguments in that case were heard Nov. 2, and a decision is overdue. The court said it will announce more decisions on Thursday.

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