Kethledge: First Amendment Hawk

Justice Kennedy was a fierce defender of the First Amendment. As he explained in one of his last opinions on the bench, the government “must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”

Not many can fill Justice Kennedy’s shoes when it comes to the First Amendment. But one who might is Justice Kennedy’s former law clerk: Judge Raymond Kethledge of the Sixth Circuit.

In one case, Judge Kethledge wrote an opinion invalidating an Ohio law that prohibited candidates for state prosecutors’ office from accepting campaign contributions from Medicaid providers. Ohio argued that a law which banned the speech of all 93,000 Medicaid providers was necessary to prevent corruption. Yet Kethledge explained that “a state must do more than merely recite a general interest in prevent corruption.” It must “demonstrate how its [law] furthers a sufficiently important interest.” Examining the evidence, Judge Kethledge noted that although only about 300 of Ohio’s Medicaid providers were implicated in Medicaid fraud, the Ohio law prevented nearly 100,000 providers from speaking. A law with such an imprecise fit between means and ends flunks the First Amendment.

In another case, the police threatened to arrest two people who were walking around a festival with a sign conveying a Christian message. The city defended its actions, pointing to a ban on the “soliciting of causes outside of booth space” during the Sweet Corn Festival. The city argued that the ban was necessary for crowd control, but it identified no crowd concerns at the festival. Judge Kethledge fully joined the opinion striking down the law. In so doing, he found the ban far too restrictive, since it prohibited all signs, leaflets, and even one-on-one discussions.

In a third case, Judge Kethledge rejected a First Amendment challenge to ordinances that regulated the licensing and location of adult businesses. There’s not much to say about the merits: the Supreme Court has held that laws which seek to limit the secondary effects of adult businesses receive less scrutiny. Lower court judges are bound by Supreme Court precedent. I mention the case because it features my favorite Kethledge one-liner of all time. The dissent in the case felt that the main issue should’ve been a different one: “the beaches of Normandy lie elsewhere.” Kethledge’s rejoinder was even better: “Where the dissent actually finds itself, however, is at Pas de Calais.”

Court watchers love comparing nominees to sitting justices. Judge Kethledge’s writing reminds me of the Chief’s. His focus on statutory text? Justice Thomas. He shares Justice Kennedy’s commitment to civil discourse. Will Judge Kethledge fortify his former boss’s legacy on the First Amendment? We may find out soon enough.


(Disclosure: Years ago, I was a student in Judge Kethledge’s Fundamentals of Appellate Advocacy Seminar).


Supreme Court opinion is a big victory for the First Amendment

On Thursday, the Supreme Court issued its decision in Minnesota Voters Alliance v. Mansky. I drafted the cert petition and litigated the case with my colleagues at Pacific Legal Foundation.

You can read more about the decision in my op-ed for the Hill. Here’s a snippet:

A key argument in the case was that the apparel law inevitably would be enforced in an unequal manner. Conservative poll workers might be more willing to enforce a political-apparel ban against voters wearing the apparel of the AFL-CIO; liberal poll workers, against voters wearing Chamber of Commerce t-shirts.

Thorny First Amendment questions with redistricting

Two of the cases at the Supreme Court this term involve redistricting. Can a state draw district lines in a way that favors the politically powerful party? Or are some districts so blatantly discriminatory that they violate the First Amendment. I don’t have fully formed views on Gill (Wisconsin) and Benisek (Maryland), but here are some initial thoughts.

First, there are difficult line-drawing problems with most cases. Yet the line-drawing problem in this case seem particularly challenging. As the Chief Justice noted during oral argument in Benisek, nearly everyone would agree that some degree of politics is acceptable in redistricting decisions. How political is too political? How is the Court supposed to police the line?

Second, there are quite a few things that alter voter efficacy. Wyoming and California both get two senators. Because there are more people in California, the average voter in California has less say on who gets elected than her counterpart in Wyoming. Under this system, some people’s vote matters more, yet few would say that this raises constitutional concerns.

On the other side, though, it seems that blatant forms of political redistricting call for redress. Consider a state with 100 residents — 30 Republicans and 70 Democrats. Could the state make a district for each Republican and just one for all 70 Democrats? Nor do the problems go away with proportional representation. If the state had a district for every 10 residents, a creative redistricting Republican-leaning commissioner could draw districts in a way to give the Republicans even numbers in the legislature despite being outnumbered 30 to 70. (Five districts with 10 Democrats; five districts with 6 Republicans and 4 Democrats). This seems like a classic political process failure that demands judicial intervention.

The redistricting cases are some of the hardest cases this term. We’ll see what the Court does before July.


Upcoming events for Minnesota Voters Alliance v. Mansky

Oral argument in Minnesota Voters Alliance v. Mansky is just 13 days away. I’ll be in Washington D.C. for most of the next two weeks to talk about how this case affects the Free Speech rights of everyone from members of the Tea Party to the NAACP.

On Thursday, February 22, I’ll be on a panel at the Cato Institute with Cato’s Trevor Burrus and Munger Tolles partner Ginger Anders. Anders, who has argued 18 cases before the Supreme Court, is one of the lawyers for the government in Minnesota Voters Alliance. You may register for the event here or watch it online.

On Monday, February 26, I’ll be speaking to the America’s Future Foundation during Happy Hour at Ireland’s Four Courts in Arlington. Read more about the event on Facebook and register on Eventbrite.

On Tuesday, February 27, I’ll be speaking at 12:15 to the Georgetown Law Federalist Society in McDonough 201. Come get a preview of the case the day before it is argued before the Supreme Court.

Fed Soc talk and press call on MVA v. Mansky

Two events next week on Minnesota Voters Alliance v. Mansky, a case that will be argued in the Supreme Court of the United States in just 18 days.

On Monday, I will be speaking to the Federalist Society at the University of Minnesota Law School. The event will take place at 12:15 p.m. in Mondale Hall Room 30.

On Tuesday, Andy Cilek, Dave Breemer, and I will host a press call at 2 p.m. EST. Contact Pacific Legal Foundation Media Director Kate Pomeroy ( if you’re a member of the press and would like to join the call.