Under the strict scrutiny test, the party supporting the rule has the burden to prove that the rule is (1) narrowly tailored, to serve (2) a compelling state interest. In order to show that the rule is narrowly tailored, the party must demonstrate that it does not unnecessarily circumscribe protected expression.
Since 1974, the code of judicial conduct promulgated by the Supreme Court of Minnesota included a canon (the "announce clause"), which prohibited any candidates for judicial office, including incumbent judges, from announcing their views on disputed legal or political issues. Incumbent judges who violated the announce clause were subject to disciplinary action including removal from office or suspension without pay, while attorneys who violated the rule faced penalties including disbarment or suspension. In 1996, after a lawyer running for the Supreme Court of Minnesota distributed campaign literature that criticized several of the state supreme court's decisions on issues such as crime, welfare, and abortion, a complaint alleging that this literature violated the announce clause was filed with the state agency responsible for investigating alleged ethical violations by lawyer-candidates for judicial office. Although the complaint was dismissed by the agency due to its doubts regarding the announce clause's constitutionality, the lawyer withdrew from the race to avoid further complaints that might have damaged his law practice. When the lawyer ran for the same office in 1998, he unsuccessfully requested an advisory opinion from the agency as to whether it would enforce the announce clause. The lawyer then, along with other plaintiffs including a state political party, filed an action against officers of the agency in the United States District Court for the District of Minnesota, which action sought (1) a declaratory judgment that the announce clause violated the Federal Constitution's First Amendment, and (2) an injunction barring the enforcement of the clause. However, the District Court, in granting the defendant officers' motion for summary judgment, (1) construed the announce clause as reaching only disputed issues that were likely to come before candidates if they were elected judge, and (2) ruled that the clause, so construed, did not violate the First Amendment (63 F Supp 2d 967). On appeal, the United States Court of Appeals for the Eighth Circuit accepted the District Court's limiting construction of the announce clause, and further construed the clause as allowing both criticism of past judicial decisions and general discussions of case law and judicial philosophy.
Did the announce clause violate the First Amendment?
Applying strict scrutiny, the Court determined that the announce clause violated the First Amendment. The announce clause was not narrowly tailored to serve impartiality in the traditional sense, where impartiality meant the lack of bias for or against either party to the proceeding, or in the sense that impartiality meant openmindedness. Also, the announce clause failed the strict scrutiny review because it was woefully underinclusive, prohibiting announcements by judges and would-be judges only at certain times and in certain forms. The Court reversed the grant of summary judgment to respondents and remanded the case.