Opinion of the Day

After yesterday’s high-tension SCOTUS ruling in Hobby Lobby, some lighthearted yet with serious consequence opinion from the District Court for the District of Columbia, 1989. Clarke v. United States addresses the question of whether a legislator’s vote is protected speech under the First Amendment to the Constitution. Believe it or not, the defendants, with a presumably straight face, argued that it is not. The District Court disagreed, and Congress now knows that it must amend our laws directly rather than conditioning the use of our own funds on the Council amending its laws in ways directed by Congress.

Some highlights:

The United States suggests that this condition does no more than force the Council members to “hold their noses” and adopt the law. First amendment protection, however, encompasses both the right to speak and the right not to speak, and even the olfactory burden to which the United States refers is constitutionally suspect.


Finally, Congress has no clearly defined interest, compelling or otherwise, in so burdening plaintiffs’ speech. (emphasis added)


The keystone of the United States’ argument is that plaintiffs’ voting is not protected speech, and it gives three reasons for this conclusion. First, it argues, the act of voting possesses no intrinsic communicative quality. Second, it contends that official acts by public officials are not protected speech. Finally, the United States asserts that, even if legislators in general have a first amendment right to vote as they please, D.C. Council members do not…

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