In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1713

THE HONORABLE JOHN SIEFERT,

Plaintiff-Appellee,

v.

JAMES C. ALEXANDER, et al., in their

official capacity as members of the

Wisconsin Judicial Commission,

Defendants-Appellants.

On Petition for 

Rehearing En Banc

DECIDED AUGUST 31, 2010

PER CURIAM. A majority of the judges in active service

did not favor rehearing en banc, and the petition therefore is denied.

Circuit Judges Rovner, Wood, Williams and Hamilton

voted to rehear the appeal en banc.

Circuit Judge Sykes did not participate in the consideration of this case.
2 No. 09-1713

ROVNER, Circuit Judge, with whom WOOD, WILLIAMS,

and HAMILTON, Circuit Judges, join, dissenting. As I noted

in my dissent in the initial case before us in Siefert v.

Alexander, 608 F.3d 974 (7th Cir. 2010), laws and regulations that restrict speech on the basis of content are

subject to a strict scrutiny analysis, and when we tread

on the core of those rights, for example, on speech

about the qualifications of candidates for public office,

we must do so with utmost caution. Siefert, 608 F.3d at

991. Nevertheless, in evaluating Wisconsin’s Code of

Judicial Conduct forbidding a judge or judicial candidate from publically endorsing or speaking on behalf

of any partisan candidate (the portion of the opinion

from which I dissented), the majority opinion applied

a more relaxed balancing test not heretofore applied

to the First Amendment rights of judges and judicial

candidates.

When the Supreme Court evaluated the First Amendment rights of judges and judicial candidates in the

seminal case of Republican Party v. White, 536 U.S. 765, 774-

75 (2002), it did so through the lens of strict scrutiny (as

did those justices writing in dissent). Every circuit court

to follow has done the same. See Wersal v. Sexton, No. 09-

1578, 2010 WL 2945171, at *3 (8th Cir. Jul. 29, 2010);

Carey v. Wolnitzek, Nos. 08-6468, 08-6538, 2010 WL 2771866,

at *6 (6th Cir. 2010); Republican Party v. White, 416 F.3d

738, 749-50 (8th Cir. 2005); Weaver v. Bonner, 309 F.3d 1312,

1319 (11th Cir. 2002). See also Stretton v. Disciplinary Bd., 944
No. 09-1713 3

In Stretton, a case that predated the Supreme Court’s use 

of a strict scrutiny analysis in Republican Party, the Third Circuit applied a strict scrutiny analysis but declined to decide whether a less stringent standard might apply. Id. at 141

and n.1.

8-31-10

F.2d 137, 141 & n.1 (3d Cir. 1991) Our decision in Siefert 

departs from the path carved by the Supreme Court and

makes us an outlier among our sister circuits.

Furthermore, since the time this panel has issued its

majority and dissenting opinions, both the Sixth and

Eighth circuits have struck down as unconstitutional

state statutes that restricted the First Amendment rights

of judges and judicial candidates, including a Minnesota

endorsement prohibition nearly identical to the one the

majority opinion upheld in Siefert. Wersal, 2010 WL

2945171, at *8,*11. See also Carey, 2010 WL 2771866, at *17.

Our divergent opinion on this issue is an outlier and

should be reheard en banc. I respectfully dissent from

the denial of rehearing en banc.