good afternoon may it please the court my name is matthew one fourth and i have the the honor and privilege of representing appellant mark french and his family were present in the courtroom today and with me at counsel table is professor eugene bullock as well as elizabeth arenas and with the court's permission we would miss arias and i would like to ask that our twenty minutes of time be divided ten minutes for her ten minutes for myself i'd also like to ask that five minutes of my time be reserved for a bottle think your honor because rule four point when a seven of the montana judicial code is content based restrictions subject to strict scrutiny the state has the burden of proving that it's narrowly tailored to achieve a compelling state interest the state cannot meet that burden for a number of reasons not the least of which is because the rule has the same kind of under inclusiveness defects as the minnesota rule that was it is issue in republican party of minnesota versus white which one one or two over the it would be white one to the u s supreme court case for example the rules under inclusive because it allows candidates to use and solicit endorsements from all groups case the speech restriction that was it issue involved only a partial ban on solicitations for during a ban on direct solicitations the supreme court made it clear that it was allowing indirect solicitations and therefore it was a very minimal intrusion on free speech in this case the rule at issue here prevents judicial candidates from using political party endorsements at all they can't use them directly their campaign judiciary what's wrong with that the problem your honor is that my client wants to be able to tell the voters about his his political and legal views and that he shares those political the same political legal views that the essentially state all of those viewpoints and values without packaging them in this way yes you're he can say that he can say i believe in the in the values of the republican party and look at their platform those are those are my values he can say that himself the problem is that doesn't have the same kind of credibility especially with voters today unless he can say oh and by the way the republican party and sanders county has reviewed me they read my track record and they agree with me but but the republican party can say that yes yes your honor the republican party can say that independently but it's my client who wants to be able to broadcast that he wants to be able to tell the voters as you know king on doors if he's putting out campaign literature not only am i not only am i saying that i'm a conservative but the republican party has reviewed my record and they agree with me that bolsters that his statements in his campaign his campaign statements immeasurably for him to not be able to do that takes away some of the credibility a lot of the credibility a statement do we know mr ball is an expert in first amendment law and he's written a lot about internet and social media and so on why can't the republican party and he's an example the democratic party send  blast to all its people saying this this guy's this woman is the best judge could possibly be we just indoors and he's absolutely fabulous and then today we seem to be segregating ourselves in society based upon whose tweet list we're on or an e mail said the old traditional ways of notifying people like with placards and so on it seems quite old fashioned is this such a minimal restriction given the advent of social media that it's almost meaningless the problem your honor is that a lot of the voters that mr french wants to reach in sanders county are not are not twenty year olds twenty five year olds who are internet savvy there they tend to be elderly citizens who are not probably well i and then the other problem the bigger problem that we have in montana is that there's no party registration there's no list there's no email list of republicans that mr french can blast out out to or that the republican party can our role in trying to if you will make these cases fit with one another we have to weigh everybody agrees this is a restriction on speech the question is whether the state meets strict scrutiny so we're balancing as i see it the strength of the state's objective which they state is the integrity of the judiciary versus the reality in my view of how limited the restriction really is and i really do take social media concept as an important one i think it probably played a huge role in our most recent presidential election whether one likes it or not and i find it i just i'm wondering whether your argument is a realistic one can you help me what one might missing here one of the things that i think needs to be pointed out is that the state claims that they have this compelling interest of preserving public confidence in the judiciary but there's there's really no basis to say that the use of party endorsements somehow diminishes that public the public expects who gets the side that this is the legislature right the ledge well it's actually the montana supreme court the promulgated these rules but the state has a right as they elect their elected judges your honor so in effect there politicians they're like roads they're they're the kind of folks that want to be able to say that want to be able to limit the ability of challengers to to get their message out and then and that's part of the problem the other part of the problem is that the montana supreme court in promulgating these  rules has as conflated elections with campaigns the state has a right to control the mechanics of an election they can say we're going to have ballots the don't have party identifiers mr french is not challenging that but what this rule does is it goes much further it doesn't it doesn't just simply regulate elections it regulates candidates campaigns by telling them what they can and can't say about themselves and that's a far more serious intrusion on first amendment is only one thing they can say i'm a democrat and if i let it go it's one of the most but it's one of the most important things that they want to be able to say and more importantly that the voters want to be able to hear because frankly voters don't have a whole lot of time to spend on t the state has a right to to arrange the ballot anyway it wants within within reason there's a and there are other there been cases that have that have held that the states have that right we're not challenging the idea that the ballots are omitting party identifiers we don't have a problem with that mr french simply wants to be able to go out on his own and to be able to talk to his voters and tell them the things that he thinks that the that are important for him being good afternoon your honor my name is elizabeth area and i'm here on behalf of center for competitive politics and because in this case i would like to return to the question posed at the outset of the argument about whether or not the four cases  issue are reconcilable with one another and i would argue that they're absolutely reconcilable so what the court said in white was still you think that wolfson follows from what white one we could have done what we could have our reconciled with one another with the court made clear and white was the candidates need to be free to discuss their qualifications for office the speech and debate that occurs about who's running for office and why they're qualified to be voted into office is a core political speech what isn't core political speech is asking for money which the court and when he said we can move this to the campaign committee because it isn't really speaking as directly to the individual's qualifications for our office but here we have speech that speaks directly to an individual's cost occasions for office whether or not they're endorsed by a party and that is extremely distinct from whether or not they are a member of a party office and this person subscribes to a set of beliefs that we also subscribe to and in that way do this a candidate for communicating to the public i'm a qualified candidate you should vote me and there's just really no other way for them to say it so when m candidates that what do you base that yours mark person the asli but the man at montana supreme court has said you know we've evaluated this and we have to deal with these judges and we're concerned that people view the judicial process as a political process and some recent national things of suggested that because we have some so called judges in this area apparently so given that fact isn't  important to defer to the people who has the judicial system in montana to evaluate in their considered opinion whether this narrow restriction allowing all the other things that they can do the candidate can do to try to promote promote and judicial integrity why don't we do a for to them rather than the candidate well your honor because this is a content based restriction so that it's the state's burden  is a very important rule we're going to probably get that because we're very concerned about judicial integrity do we just ipso facto say well that doesn't mean anything or is that in fact part of the state's argument that it does well your honor i think that we can give some credit to the fact that these judges think that but that certainly can't be enough because and that case and they could say well we think that this is necessary to come to meet this compelling interest and that would just give them the ability to restrict all sorts of speech and that couldn't possibly be the right outcome so we need to look in the book at the facts on the ground and say is this actually narrowly tailored and the fit between the preserving the integrity of the judiciary and this risk massive restriction on speech you know me i'm a democrat right why dad what's is why doesn't that give the person plenty of leeway with all the other things that can be done and then before the campaign they can say it openly no problem  i guess what i'm struggling with is who gets to decide i know ultimately we do but we have to look at what's actually happening on the ground how much of a restriction this really is and that's frankly well i'm struggling with i don't part first is that this is a pretty big restriction if you think about it if you're playing for a job but you're not allowed to tell people who your references are and have people come in and say yeah this person's good we stand behind this person you can say whatever you want on your resume but you don't really have that force of credibility behind you and that is really important in an election especially even even if the person that recommendation you want is same across the street with the same we think is great  letters of recommendation into the prospective employer a sexually right so the difference between that and the of the bill if you to speak on your own behalf to explain to the public why you are qualified mr french can't depend on the republican party to speak for him he can hope that they do but when he's looking to win the election he can only speak on behalf of himself and their interests are different than his and he barred from coordinating with the republican party yes he's not allowed to seek endorsements and the other point that we're getting at with all of this is there's a lot of different ways that this connection between the political speech and the judicial elections is going on so the idea that this advances this compelling state interest is a little bit suspect because like you said the republican party can send out the blast or he can say i am a democrat so the idea that now the public is going to think that ok these people are completely free of all partisan influences is just it's not really pushed by does the rule for big a candidate from ascribing political affiliation to his opponent i do not believe so but i'm not certain so i'm looking at a seven and it doesn't look like a comes foursquare there but is was mr french prohibited from saying mike my opponent is a gall durn democrat and he and  he and he follows the democratic party and not only in montana but here's a whole list of of objectionable democrats from california and washington d c and other places and if you elect him that's who you're getting no i don't believe he's prevented from saying that at all and so you think that that's under the rules that the candidates can do that today that is correct and once again that goes to show even though they're prohibited from saying something about themselves they can say something about the party affiliation of their opponent so they can say their own party affiliation that they can't see as i'm indorsed by the republican party which in what way can they were deal with the republicans so they don't think that they're more or a democrat so they can just say i am a member of the democrat party if they are but they can't say that they have been intimate on their sign i don't believe but they can say that i'm not i can't say that the rule is so  clear but i can tell that from looking at a four point one a seven i'm actually not sure either but i know that that the state can't stop them completely from identifying their political party and if they can buy that and then then the mr french can say vote for vote for french and he can put underneath republicans but he can't say the republican party endorsed no but even if he but he could say republican on the sign yes your honor but there's a dramatic difference between i'm a republican and the republican party endorsed me i could be doing all of these things that were completely and typical to the republicans platform and be a completely unqualified candidate and say i'm a republican but i'm only going to get that endorsement i proved to the republican party that i deserve it and now saw it with respect i've seen lots of signs over the years and i don't remember any emphasis about indorsement by a party they put our or d or whatever it happens to be and people just assume that they're republican or a democrat what difference does it make whether they are officially endorsed isn't this just another one of these minutia that it's very easy to get around and when you get it all together this is not much of a restriction just to be clear on i'm not certain that they would be able to say republican on their sign because that might be misleading and so the montana might say that this violates the  know they can't what about what my colleague said if they can say you know my opponent joe whoever is it is a cauldron whatever you know that's pretty clear you know he stands for all these things the negative pregnant that is why i'm just the other side and i do other things not enough it's not enough your honor because when you say your endorsed by someone someone's giving you their stamp of approval you can say whatever you want about yourself but there's nothing you will do exactly but that's that's what brings the legitimacy in with the party we know that people are going to say whatever people put whatever they want out there but once the party who's a repeat player a legitimate actor somebody that people after the people trust says this is the guy we have to believe that people know what a party stands for i'm a member of digger but i have no idea what it stands for today i have no idea is that true of other people i would say that most people have a general sense of what i sure do and does that make a difference in this situation well i don't think that it does because i do think that there are certain maybe even if we just go as broad as more conservative more liberal that people could say ok it there's no there's no bar under this regulation to say i'm a conservative or i'm a liberal right right but there's a barge that you're endorsed by and the conservative group was a little bit if i'm indoors by the republican party in new york city it's very different than if i'm indoors by the republican party and ketchum idaho right yes your honor but the other point is that the party is not going to endorse somebody who's unqualified somebody who doesn't have t i think that if we look at the broad scope of most indorsement the party takes its role very seriously and it's not going to endorse someone that it doesn't think deserves to be a judge especially in something like a judicial candidate where people do not know very much about judicial candidates they don't take they don't have the time or the resources to research qualifications job history education background and make an educated decision themselves they use the party as a shorthand they rely on the party to say ok we're endorsing these the person and that's why when you're running for office and you're trying to explain to the public why you're the best candidate why your the most qualified this core protected political speech you need to be able to tell them i'm endorsed by the the montana supreme court or somebody else it's not a collection of judges in montana to serve on the on the ice issuers so they are the elected judges appoint commissioners on this commission correct  the rules themselves were adopted by the mighty remark so williams you in this court on bank decision in waltz and control this case and i think dictate that the and they are reconcilable with whit one i don't think they are i think pretty before rulings uli i think people assume that white wine applied anytime you had a judicial speech williams usually clarified that and especially wil between the wilson panel decision in the wilson on bond decision that's how much things changed because i think people were assuming that that white one applied what williams really clarified that the under inclusive analysis that plaintiffs are making in the plane was made here is not valid when you're talking about the broad interest issue in judicial integrity and especially protecting the first issues the judges the state has a compelling interest in protecting the public confidence that judges make their decisions based on law and not person ship just a couple of  sort of basic questions about the scope of the law so is it true that a candidate can list on the sign that he or she is a republican probably not list on the sign there's a separate statute that the plaintiffs didn't challenge that prohibit candidates from implying that they are the nominee of the party but if they can just say can they just a registered republican yes they can say if there's a speech they can say that they're republican they can say they're democrat they can you know the state understanding can say that they they can say that part of it does not prohibit revealing party membership and this is a distinction from the seaford case out of the believe the seventh circuit and in fact that case noted that it's less restrictive to say  to prohibit party endorsement because that's what the state is concerned until then they also can refer to the imputed political party of their of their opponent as well there's  somebody somebodies been a registered democrat or everybody knows that he ran for the city council ten years ago as a democrat or somebody surely espouses democratic principles and therefore is unqualified for judicial office there's nothing in the rule that prevents that and so what the ripper habits indorsement that's what it's concerned about is party endorsement in canada indorsement because first of all the state understands that people come to run from the bench with political backgrounds everybody has a political background so it's not trying to hide the obvious but what it wants to is the association that people make that if this person's indorsed by the political party if they side out the endorsement and if they're using their campaign materials they're either  that's what the state wants to avoid and it's also quite possible that you would have a situation which you had to read world war two blue robed candidates running against each other that it was possible in a recent history that hasn't been the case but  that certainly could be but still i think the interest holds the same whether that's the case or not it we do state is trying to avoid people seem judges in partisan terms because they're not politicians and justice roberts made this point in his confirmation party platforms they don't they don't get elected on that basis and that distinguishes them from from typical politicians and i also want to clarify this is not something that came out in two thousand and eight this is been a longstanding part of montana judicial elections if you're familiar with our history early territorial days were marked by vigilantism and extreme distrust in the general and appointed territorial judges and the reason was that they were in those judges were in and acted more comprehensive measures to put that into place which included prohibiting restricting partisan endorsements initially i mean obviously the strict scrutiny that we deal with today would  really around so how are we to factor that in i mean to me it looks like this is just a piece of giants was hardly any content to it i get the history i get the reasoning for it but it really doesn't impose much of a burden from my perspective we need to find if we're going to hold this is a valid state interest and that this validly upholds that helps to uphold is or was is there any evidence in the without it i mean this is this is a lot of there are lots of rules that you can only have so much on the back of a railroad car that's been in place for years and you've got mudflap rules and the fact that they've been there for a long time doesn't mean that they're right  public perception of the integrity of the judiciary and so this is the fundamental here the supreme court in the midst right of the united states said that the legitimacy of the jewish will branch depends on the public viewing judges and as nonpartisan so think so i think that the breadth and the importance of the interest issue here can't be understated and i think that was the point of williams uli and that's certainly what wilson recognized that when you when it's this is not a novel issue this is not a novel  compelling interest this is a this well established and of extreme importance but there are so many ways that a candidate can get the message out here she is a member of a particular party just so many ways  registered democrat just the endorsement concept that somehow is this ship that solves all these problems or stops all these problems is really hard for me to swallow if i don't just say  t i don't believe that it has any real impact what role if any should that play in my analysis so i just have to defer to the justices i think i think the court rulings julian states don't have that roe including montana the court noted that and said that that does not undermine the state's interest because there's deference to the considered judgment of states requirements based on its own history  electorate and that's something when you're talking about endorsements that's what's been important in our history for the last eighty years it's been a foundational part of our judicial actions and the reason i think is endorsements are different as far as our state is concerned because the recognition of endorsements are a unique political currency in of itself it's trade endorsements are not given away for free or traded for promises and that's what judge easterbrook recognizing that in th senate if you if you'll give me your endorsement rules let's in such a way and we're going to cases well look i don't think that's ok in fact that's what that's what the states trying to prevent i mean that's both that reality and the public perception that that's the reality what do you mean then by the concept sponsor not for free bargained for what it was the bargain price the indoor well typically and that this is what the this is what the states trying to avoid the bargain is you know promise to vote for a party plan form a promise to do certain things one right the important one is still there because the republican party can come forward the democratic party can come and say here's a judicial candidate that all good democrats will be supporting the difference is that the perhaps all three of those things and the reason is because the identity is when he said the identity of the speaker matters the identity of the solicitor so if it's the candidate himself or herself that is seeking that endors promoting that endorsement that makes a different people expect our political parties to be bars and that's what they are it doesn't expect judges not to be and so that's that's the distinction i think that's why it makes a real difference what role the vast number of exceptions are ways to communicate the very thing you're talking about what difference does it make in our analysis of whether there's in fact advances the state state object to preserve judicial integrity i think it shows it is it's a narrow narrowly tailored judge and that which of course is a requirement stricture that's right it's showing and i don't know that mr french really has much argument with that page fourteen of his brief the only narrow more narrowly tailored restriction he offers is his having appointed judiciary williams rejected that as a valid choice for a stay or ballot requirement that that they have to an all or nothing choice here but i think what that does show is this is about as narrowly tailored as it can be it's focused on the states direct interest and as you noted there's lots of other ways that judges can talk under the rule can a judicial candidate get in this case a prominent member of the bar to go around and they say well boys are republican or the democratic party really thinks this there talking about how what a great democrat this person is and the party just loves him thinks it's great i think if somebody is doing that it's i mean there's certain people can certainly speak independently they can spend money independently on on a candidate and they do in montana but once one facet of montana judicial elections even frankly even after seniors county parties still i don't know i think sure they have endorsed just the candidates but it doesn't happen very montanans like non non partisan judicial actions is not only has it been a part of our history but it's something i think people think is generally think or is important to the health of the of the judiciary and so whe what we do with it i think there are some factual distinctions there's a couple distinctions i'd like to make but it's hard to say that it wasn't significantly undermined especially under inclusive analysis which wilson and williams really explicitly rejected that analysis the argument that the only state's state's only choice is to go to an appointed judiciary rather than elected judiciary and so i think i think it's tough to reconcile and that the sort of the  the same point that's something that i think sanders county probably took if you look at the case it took a too narrow view of the state's compelling interest and that's what was really clarified that it's very broad and very important  actually it was also a criminal case and so the court noted that when you've got a criminal case that's the penalty for bridge and free speech that puts it at the absolute height of protection to it the third party speaking and that that makes i think a critical difference as well i mean it was political parties and like i said earlier political parties everybody expects them to to be bars and speaks of the state's interest isn't quite as high when it is the candidate himself or herself this is the idea that different we have different systems is a matter of our federal system it's an important part just that states are allowed to  side abides by it but the system only works if the public has respect for the judges and has respect that the judges are making those decisions on the law and the facts not partisanship and so that's something that montana and western i first want to address an issue that you raised a few moments ago by the about whether judicial candidates can talk about the fact that they're affiliated with the with the party the answer is they cannot section thirteen  ticket i'm sorry but it's section thirteen dash ten dash six zero two so paragraph two of the montana code annotated strictly prohibits candidates who are in nonpartisan races including judicial candidates and that the terminology that's used in the statute is you can't use the party name in your candidacy so that they can't use the republican mr fresh can use the republican party name in a signs in his radio advertisements or anything like that but for our purposes we should understand that you cannot use it on yours or say i'm a democrat exactly exactly and i'm quoting that section from from memory so if it's six o three instead of six o t one that may may be coming up in the not too distant future there's another inclusiveness issue that that i want to speak about very briefly the statute the rule bans soliciting verbal endorsements from public officials but doesn't ban soliciting monetary contributions from public officials monetary contributions are the ultimate form of indorsement and for the state to ban one for the state to ban solicitation of verbal indorsements without banning solicitations of monetary contributions makes no sense why and why is that because going to be reported someplace and people will figure it out yes terribly accessible for ordinary people it's the information is online it's actually quite but it's not the kind of thing it's not it it's not it's easily available as having the candidate himself or being able to post it on signs perhaps but  it's still easily accessible that that that the sheriff gave one hundred dollars to a candidate but didn't you the mr french can't ask the sheriff for his verbal endorsement and it simply makes no sense you and your of you made the point that there are a lot of older people out there who don't use the internet so they wouldn't have that information available right just the young people the young people and then the and the savvier older people would have that view that information as well as your response to your opposing counsel's comment that the huge number of exceptions here merely emphasize the narrow tailoring that this particular restriction provides the exceptions in terms of the ability of third parties so  many ways to communicate the message the state was really trying to minimize its impact on is very narrowly tailored it's a legitimate state interest what's your comment on the problem is that in oftentimes in campaigns especially some local campaigns if you're the candidate you're pretty much a one person show there may not be union officials friends relatives and again that may be the case but the reality is there's no bar to these other ere is narrowly tailored it does not your honor because the main communicator especially for local campaigns is the local candidate no mr french cannot rely on the fact that the republican party or his friends or relatives are going to go door knocking go block blasting out e mails on his behalf they might hopefully they will but ultimately he's the one that has to depend on himself to be able to get that information out and he can't do it he can't do it under the french mr michael and help him in which candidate harbored no partisan leanings and that's simply unrealistic in doing so the state is promoting what amounts to a charade candidate judicial candidate they have partisan views the first amendment prevents the state from the first thing my client to participate in that charade by not talking about political party endorsements for that reason for the other reasons that we've talked about today we respectfully request that this court reversed the judgment of the district court and enjoying enforcement of rule four point when he seven thank you thank you to my foreign i want to i want to thank all counsel not in this case it's a complicated case and complicated by some fortunate you are in a big case to have had a professor give you his argument that the court has completed its oral argument counted for the week and we were