The April 2011 edition of the Zoning and Planning Law Report (West/Thomson Reuters) features my article Supreme Court Preview: Voting as Speech When a Government Official Has a Conflict of Interest - "Analogy Gone Wild" or First Amendment Right?, 34 Zoning & Planning L. Rptr. (Apr. 2011), which summarizes the issues in Comm'n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011).
From the Introduction:
In late April 2011, the U.S. Supreme Court will hear oral arguments in Nevada Commission on Ethics v. Carrigan, reviewing a Nevada Supreme Court decision holding that a city councilman had a First Amendment right to cast a vote on a development proposal in which it appeared he had a conflict of interest. The Nevada court invalidated a state statute under which the state Ethics Commission censured the councilman because he did not recuse himself and instead voted to approve an application to develop a hotel/casino. The casino developer’s consultant was a "longtime professional and personal friend" of the councilman and was his campaign manager.The Court’s decision in this case will be worth following for at least two reasons. First, the Court is confronted with an issue it has not squarely addressed before: whether a government official’s vote on a legislative or quasi-judicial matter is "speech" protected by the First Amendment, or whether it is conduct—"[an] act ... quintessentially one of governance." The lower courts have not produced a consistent answer to this question, with some viewing voting as the highest form of political speech and thus for the most part insulated from regulation, while others view voting-as-speech as an "analogy gone wild," subjecting regulations impacting official voting only to the highly deferential rational basis standard of review. Even if the Court views official voting as not quite speech—but having an expressive element protected by the First Amendment—it could give it some form of intermediate level of protection and treat it similarly to speech by government employees, which may be regulated in varying degrees depending on the circumstances. The second reason this case is worth following is that the Court’s decision could have widespread impact on local zoning and planning procedures nationwide, particularly if it agrees with the rationale of the Nevada court, which concluded that the councilman’s voting on the development application was protected political speech, and consequently that the ethics statute was subject to strict judicial scrutiny. Should the Court adopt this approach, a variety of state and local regulations governing the conduct of members of city and county councils and boards of supervisors, planning commissions, zoning boards of appeals, and similar bodies would be called into question, and possibly subject to serious challenge.
The Court will hear oral arguments on April 27, 2011.
More, including the briefs of the parties, is available on our case resource page.