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Legislative voting is governance, not speech, Reporters Committee tells Supreme Court

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For Immediate Release: March 1, 2011 Washington, D.C. — Joined by 14 news organizations and the Student Press Law Center,…

For Immediate Release: March 1, 2011

Washington, D.C. — Joined by 14 news organizations and the Student Press Law Center, the Reporters Committee for Freedom of the Press today filed an amicus brief with the U.S. Supreme Court arguing that legislative votes are acts of governance, not constitutionally protected free speech.

“An official government action, such as the casting of a legislative vote, certainly may include an expressive component,” the brief argues. “But that fact does not mean that voting and other actions taken by elected officials in their official capacities implicate the type of expression that the First Amendment’s Free Speech Clause was ‘meant to protect.’”

The media coalition filed the brief in the case of Nevada Commission on Ethics v. Michael A. Carrigan, in which a Sparks, Nev., city council member claims a state law prohibiting public officials from voting on matters in which they have a conflict of interest violates the lawmakers’ free speech rights. Carrigan was censured by the state’s ethics commission for voting in a city council matter involving a client of his campaign manager’s business.

On appeal, the Nevada Supreme Court ruled in Carrigan’s favor. The Nevada court determined that legislators’ votes are free speech protected by the First Amendment and any such restrictions would have to meet traditionally high constitutional standards for limiting political speech.

The Reporters Committee and its fellow amici, however, cautioned the Supreme Court against allowing the state court’s ruling to stand not only because of the potential impact on existing state ethics and open government laws, but also because voting is an act of governing, not speech.

Simply stated, the “amici urge this Court to hold that open government and ethics statutes that are generally applicable and evenhanded regulations on acts of governance should not be viewed as restrictions on political speech subject to strict scrutiny under the First Amendment.”

The First Amendment is designed to protect the people from government censorship, the brief argues, and should not be used as a means to prevent the people from overseeing actions by government officials.

The amicus brief can be found on the Reporters Committee website.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.