Nevada Commission on Ethics v. Carrigan
564 U.S. 117
| SCOTUS | 2011Background
- Nevada's Ethics in Government Law bars a public officer from voting on or advocating passage of a matter if the officer's independent judgment would be affected by a private commitment to others, defined in subsections (a)-(d) and a catchall in (e).
- Carrigan, a Sparks City Council member, was investigated by the Nevada Commission on Ethics for voting on the Lazy 8 hotel/casino project due to a private relationship with Vasquez, a paid consultant for a related company.
- The Commission determined a disqualifying conflict under §281A.420(8)(e) and censured Carrigan for not abstaining from the vote, though no civil penalty was imposed because the violation was not willful.
- Carrigan challenged the statute as unconstitutional under the First Amendment; the District Court denied relief, and the Nevada Supreme Court reversed, holding that voting could be protected speech and that §281A.420(8)(e) was overbroad.
- The Supreme Court granted certiorari to address whether legislators have a First Amendment right to vote on matters, and whether recusal provisions are constitutionally valid.
- The Court held that a legislator’s vote is not protected speech and reversed the Nevada Supreme Court, remanding for proceedings not inconsistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is a legislator's vote protected First Amendment speech? | Carrigan: voting is expressive conduct. | Scalia majority: voting is a governmental act, not speech. | Not protected; voting is not speech. |
| Are Nevada's recusal provisions overbroad under the First Amendment? | Carrigan: catchall §281A.420(8)(e) is overbroad and restricts speech/association. | Nevada: longstanding recusal rules are constitutionally permissible; limits are justified. | Overbreadth challenge rejected; voting restrictions are permissible. |
| Do recusal rules infringe rights of association or are they vague? | Carrigan: catchall burdens association and may be vague. | State did not brief or argue these issues below; not reached. | Not addressed; waived. |
Key Cases Cited
- Ashcroft v. ACLU, 535 U.S. 564 (2002) (First Amendment generally protects speech)
- Roth v. United States, 354 U.S. 476 (null) (obscenity not protected speech)
- Printz v. United States, 521 U.S. 898 (1997) (executive/legislative recusal and contemporaneous evidence of constitutional meaning)
- Raines v. Byrd, 521 U.S. 811 (1997) (legislators lack standing; voting power as trustee)
- Doe v. Reed, 561 U.S. 186 (2010) (signing petitions can have legal effects but remain expressive)
- Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (ballot access and expressive value of speech on ballots)
- Brown v. Hartlage, 456 U.S. 45 (1982) (campaign speech and political participation)
- Doe v. Reed, 561 U.S. 186 (2010) (see above)