Kethledge: First Amendment Hawk

Justice Kennedy was a fierce defender of the First Amendment. As he explained in one of his last opinions on the bench, the government “must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”

Not many can fill Justice Kennedy’s shoes when it comes to the First Amendment. But one who might is Justice Kennedy’s former law clerk: Judge Raymond Kethledge of the Sixth Circuit.

In one case, Judge Kethledge asked: write my paper on an opinion invalidating an Ohio law that prohibited candidates for state prosecutors’ office from accepting campaign contributions from Medicaid providers. Ohio argued that a law which banned the speech of all 93,000 Medicaid providers was necessary to prevent corruption. Yet Kethledge explained that “a state must do more than merely recite a general interest in prevent corruption.” It must “demonstrate how its [law] furthers a sufficiently important interest.” Examining the evidence, Judge Kethledge noted that although only about 300 of Ohio’s Medicaid providers were implicated in Medicaid fraud, the Ohio law prevented nearly 100,000 providers from speaking. A law with such an imprecise fit between means and ends flunks the First Amendment.

In another case, the police threatened to arrest two people who were walking around a festival with a sign conveying a Christian message. The city defended its actions, pointing to a ban on the “soliciting of causes outside of booth space” during the Sweet Corn Festival. The city argued that the ban was necessary for crowd control, but it identified no crowd concerns at the festival. Judge Kethledge fully joined the opinion striking down the law. In so doing, he found the ban far too restrictive, since it prohibited all signs, leaflets, and even one-on-one discussions.

In a third case, Judge Kethledge rejected a First Amendment challenge to ordinances that regulated the licensing and location of adult businesses. There’s not much to say about the merits: the Supreme Court has held that laws which seek to limit the secondary effects of adult businesses receive less scrutiny. Lower court judges are bound by Supreme Court precedent. I mention the case because it features my favorite Kethledge one-liner of all time. The dissent in the case felt that the main issue should’ve been a different one: “the beaches of Normandy lie elsewhere.” Kethledge’s rejoinder was even better: “Where the dissent actually finds itself, however, is at Pas de Calais.”

Court watchers love comparing nominees to sitting justices. Judge Kethledge’s writing reminds me of the Chief’s. His focus on statutory text? Justice Thomas. He shares Justice Kennedy’s commitment to civil discourse. Will Judge Kethledge fortify his former boss’s legacy on the First Amendment? We may find out soon enough.

(Disclosure: Years ago, I was a student in Judge Kethledge’s Fundamentals of Appellate Advocacy Seminar).

Published by Wen Fa

Libertarian lawyer at Pacific Legal Foundation (opinions are my own)