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High Court to Weigh Speech Rights of Public Officials

In a case with implications for school board members nationwide, the U.S. Supreme Court has agreed to decide whether First Amendment free speech concerns are raised when states require local elected officials to recuse themselves from voting on certain issues for ethics reasons.

The justices late on Friday accepted an appeal from the Nevada Commission on Ethics, a panel that enforces a state ethics law on local members of city councils, school boards, and other agencies. The commission appealed a July 2010 ruling by the Nevada Supreme Court that invalidated a portion of the state recusal statute on free speech grounds.

The commission had censured Michael A. Carrigan, a Sparks, Nev., City Council member, for failing to recuse himself from a vote for a hotel and casino project for which the developer had retained a close friend of Carrigan's. Carrigan appealed, and a state trial court upheld the ethics provisions under a balancing test from a 1968 U.S. Supreme Court decision about public-employee speech, Pickering v. Board of Education.

But the state's highest court held that it was inappropriate to apply the Pickering test and that "voting by an elected public officer on public issues is protected speech under the First Amendment."

The Nevada Supreme Court instead applied strict scrutiny to the ethics provision and held that it was not narrowly tailored because it did not guide elected offices as to which of their personal relationships required recusals.

In its appeal to the U.S. Supreme Court, the Nevada ethics panel said "lower courts have splintered over whether public officials' votes amount to protected speech and, if so, which standard of review applies to regulations on official voting."

The justices on Jan. 7 agreed to hear the appeal in Nevada Commission on Ethics v. Carrigan (Case No. 10-568). The court will hear arguments in the case in April and will likely rule by the end of June.

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