Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech

Jeffrey M. Shaman
Publication Date: 
July 18, 2012

ACS is pleased to distribute “Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech,” an Issue Brief by Jeffrey M. Shaman, Vincent de Paul Professor of Law at DePaul University College of Law. Carrigan “is one of those cases where the Supreme Court reached the right result for the wrong reasons--in this instance, egregiously wrong reasons,” Professor Shaman asserts.

In the Issue Brief, Shaman laments that Justice Scalia’s originalist reasoning in Carrigan deviated from long-settled First Amendment precedent and distorted what could have been a straightforward decision upholding a law prohibiting legislators with a conflict of interest from voting. Moreover, “[i]nexplicably, no less than seven members of the Supreme Court signed on to the Scalia opinion in Carrigan and thereby implemented the dubious ruling that the vote of a member of a legislature is a non-expressive act entitled to no protection whatsoever under the First Amendment,” Shaman writes. “Perhaps the day will come when the Supreme Court will repudiate the tortured logic displayed in Carrigan and will restore the principle that a legislator’s vote is an expressive act under the First Amendment that may not be restricted except where there is a strong reason to do so. Short of that, one can only hope that Justice Scalia’s opinion in Carrigan will fade into obscurity … .”