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April 30, 2015


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Steve L.

"[D]iluting strict scrutiny in free speech poses a greater threat to democracy than does either judicial elections or raising campaign funds for judicial elections."

I agree with you as a general matter, but how does Williams-Yulee "dilute" strict scrutiny. The opinion seems very much limited to its facts, and the controversy is only over whether this particular rule is "narrowly tailored." It is hard to see how that would have any spillover effect on future cases, given the particular nature of judicial campaigns.

Calvin Massey

If the Florida bar rule is narrowly tailored to the state's objective, then narrow tailoring has lost its meaning. As Justice Alito said, this is about as narrowly tailored as a burlap bag. So, if narrow tailoring means only that the means chosen are a rational way to the end, there has been created a huge hole in strict scrutiny in free speech cases. Of course, the Court might try to limit this to future judicial election cases, but once an exception is made the exception develops a life of its own. I'm skeptical that this new and debased version of narrow tailoring can be neatly confined to judicial elections.

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