Lawyers Aren't Waifs

On January 20, 2015, the Supreme Court heard oral arguments in Yulee v. The Florida Bar, a First Amendment challenge to Florida’s prohibition on contributions to judicial candidates. The defendant in this case, Lanell Williams-Yulee, a candidate for a county court judgeship, signed a mass-mailing soliciting contributions that was sent to voters in her county and posted on her web page. The ban is broad enough to encompass those behaviors as well as speeches in front of large audiences.

The Florida Bar claimed that Yulee violated the prohibition on solicitation. She responded that the rule is unenforceable because it violates the First Amendment. Florida’s Supreme Court ruled for the Bar and Yulee appealed to the United States Supreme Court.

Supreme Court oral argument focused on three possible justifications for the rule: avoiding corruption or the appearance of corruption, preventing bias or the appearance of bias, and protecting the persons solicited against coercion. The Bar’s lawyer disclaimed a possible fourth explanation, that the restriction was intended to preserve judicial dignity.

Yulee argued that the ban cannot satisfy any of the proffered justifications. Such underinclusiveness, she argued, is generally fatal to a restriction on constitutionally protected speech, because it demonstrates that the government’s interest is insufficiently compelling to justify the limitation.  If a problem really were severe enough to necessitate restricting a constitutional right, the government would attempt to solve the entire problem, not merely part of it.

Yulle is right -- the rule cannot possibly accomplish those goals. A judicial candidate’s campaign committee is permitted to solicit donations on his behalf and to tell him who contributed. The Judicial candidates can then send donors letters thanking them for their contribution. Why would Florida be less concerned about the appearance of corruption or bias in that scenario than in the one it bans?

At oral argument, Justice Breyer speculated that the crucial difference is that a judicial candidate requesting a donation “puts pressure on people to give it.” Florida’s lawyer responded that this is “clearly a good argument because it’s difficult for me to give you another reason . . .” 

In other words, the prohibition’s true aim is to prevent people from feeling “pressure” to make campaign contributions. If that’s true, why does Florida allow campaign committees to make solicitations on a judicial candidate’s behalf? And why is the ban limited to candidates for one office?  

Justice Breyer had an answer for these questions as well.  He explained that “the normal response . . . by a lawyer to a judge” is “yes” and “that’s almost universal” and “that’s why . . . they’re writing the rule the way they do.” 

Justice Sotomayor agreed that the prohibition is intended do “deal with” the fact that it is “inherent in the lawyer-judge context that” lawyers will do whatever a judicial candidate wants.  She supports this by stating that, “it’s very, very, very, rare” that a lawyer will refuse to do something she requests.  

According to this view, the bar’s rule is not incomplete. It is focused on remedying a specific problem -- lawyers’ inability to resist judicial candidates personal solicitation without government assistance. 

In order uphold the law based on this argument, the Supreme Court would have to accept the absurd proposition that lawyers need the state to protect them from the pressure contained in a mass-mailing or a letter posted on a webpage. The Court would have to believe that, without government protection, lawyers would stagger zombielike and hand over their wallets every time they heard a judicial candidate request donations at a public speech or through a webpage.

Ironically, in this case, Yulee’s mass-mailing did not succeed in generating any donations.  Maybe the lawyers in her county were not as helpless as some Supreme Court justices might think.

Florida’s other regulations, in addition to common-sense, undermine this view of lawyers as defenseless victims.

Florida strictly regulates lawyers’ ability to advertise and solicit clients. According to the Florida bar, it must regulate advertising in order to protect “the public” from “false, misleading, or deceptive information by lawyers” and to protect “the public “from advertising that causes the public to have an inaccurate view of . . . lawyers in general or the legal profession in general.”

Apparently, Florida believes that as soon as attorneys decide to advertise their services, they transform from helpless sheep in need of government coddling into the wolves from whom non-lawyers must be protected.

Prior to 1977, attorney advertising was generally prohibited. A ban that the Supreme Court determined was based, at least in part, on fears that “the naiveté of the public will cause advertising by attorneys to be misleading” or that that lawyers might take advantage of the fact that the public “is not sophisticated enough to realize the limitations of advertising.” It’s amazing how quickly a state can turn lawyers from dangerous predators to vulnerable prey.

Florida’s misguided attempt at protecting lawyer’s feelings does not merely deprive Yulee of her first Amendment rights, it also distorts the electoral process.

When a government restricts who may speak or what may be said, its actions have unintended consequences. At oral argument in Yulee, Chief Justice Robert noted that “it’s self-evident” that “prohibiting a form of raising funds is to the great advantage of the incumbent because the only way that . . . incumbents are going to be challenged [is] if you have someone who can get their own message out.”

States will always find some waif they thinks needs governmental protection.  This is often a laudable goal, but lawyers are not defenseless, and the state does not have a compelling interest in helping them resist campaign solicitations.  If a state wants to protect lawyers from feeling pressure, it must do so in compliance with the First Amendment.

Howard Slugh is an attorney practicing in Washington D.C.