Brown v. Hartlage, No. 80-1285

CourtUnited States Supreme Court
Writing for the CourtBRENNAN
Citation102 S.Ct. 1523,456 U.S. 45,71 L.Ed.2d 732
Decision Date05 April 1982
Docket NumberNo. 80-1285
PartiesCarl W. BROWN, Petitioner v. Earl J. HARTLAGE

456 U.S. 45
102 S.Ct. 1523
71 L.Ed.2d 732
Carl W. BROWN, Petitioner

v.

Earl J. HARTLAGE.

No. 80-1285.
Argued Jan. 30, 1982.
Decided April 5, 1982.
Syllabus

Petitioner, the challenger, in a general election, for respondent's office as a Commissioner of Jefferson County, Ky., committed himself, at a televised press conference, to lowering Commissioners' salaries if elected. Upon learning that such commitment arguably violated a provision of the Kentucky Corrupt Practices Act (§ 121.055), petitioner retracted his pledge. On its face, § 121.055 prohibits a candidate from offering material benefits to voters in consideration for their votes. After petitioner won the election, respondent filed suit in a Kentucky state court, alleging that petitioner had violated § 121.055 and seeking to have the election declared void. Although finding that, under the reasoning of an earlier decision of the Kentucky Court of Appeals construing § 121.055, petitioner had violated the statute by promising to reduce his salary to less than that "fixed by law," the trial court concluded that petitioner had been "fairly elected" and refused to order a new election. The Kentucky Court of Appeals reversed.

Held: Section 121.055 was applied in this case to limit speech in violation of the First Amendment. Pp. 52-62.

(a) Although the States have a legitimate interest in preserving the integrity of their electoral processes, when a State seeks to restrict directly a candidate's offer of ideas to the voters, the First Amendment requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression. Pp. 52-54.

(b) The application of § 121.055 in this case cannot be justified as a prohibition on buying votes. Petitioner's statements, which were made openly and were subject to the criticism of his political opponent and to the scrutiny of the voters, were very different in character from corrupting private agreements and solicitations historically recognized as unprotected by the First Amendment. There is no constitutional basis upon which his pledge to reduce his salary may be equated with a candidate's promise to pay voters privately for their support from his own pocketbook. A candidate's promise to confer some ultimate benefit on the voter, qua taxpayer, citizen, or member of the general public, does not lie beyond the pale of First Amendment protection. Pp. 54-59.

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(c) If § 121.055 was designed to further the State's interest in ensuring that the willingness of some persons to serve in public office without remuneration does not make gratuitous service the sine qua non of plausible candidacy—resulting in persons of independent wealth but less ability being chosen over those who, though better qualified, cannot afford to serve at a reduced salary—it chose a means unacceptable under the First Amendment. The State's fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech. It is not the government's function to select which issues are worth discussing in the course of a political campaign. P. 59-60.

(d) Nor can application of § 121.055 here be justified on the basis of the State's interests and prerogatives with respect to factual misstatements, on the asserted ground that the statute bars promises to serve at a reduced salary only when the salary of the official has been "fixed by law" and the promise cannot, therefore, be delivered. Erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the "breathing space" that they need to survive. Nullifying petitioner's election victory would be inconsistent with the atmosphere of robust political debate required by the First Amendment. There was no showing that he made the disputed statement other than in good faith and without knowledge of its falsity, or with reckless disregard of whether it was false or not. Moreover, he retracted the statement promptly after determining that it might have been false. Pp. 60-62.

Ky.App., 618 S.W.2d 603, reversed and remanded.

Fred M. Goldberg, Louisville, Ky., for petitioner L. Stanley Chauvin, Jr., Louisville, Ky., as amicus curiae in support of the judgment below.

Justice BRENNAN delivered the opinion of the Court.

The question presented is whether the First Amendment, as applied to the States through the Fourteenth Amendment,

Page 47

prohibits a State from declaring an election void because the victorious candidate had announced to the voters during his campaign that he intended to serve at a salary less than that "fixed by law."

I

This case involves a challenge to an application of the Kentucky Corrupt Practices Act. The parties were opposing candidates in the 1979 general election for the office of Jefferson County Commissioner, "C" District. Petitioner, Carl Brown, was the challenger; respondent, Earl Hartlage, was the incumbent.1 On August 15, 1979, in the course of the campaign, Brown held a televised press conference together with Bill Creech, the "B" District candidate on the same party ticket. Brown charged his opponent with complicity in a form of fiscal abuse:

"There are . . . three part-time county commissioners. With state law limiting their authority and responsibility to legislation . . ., it is clear that their jobs are simply not worth $20,000 a year each. It is ludicrous that the part-time commissioners nevertheless see fit to pay themselves the same amount as that paid the full-time county judge. The mere fact that state law allows such outrageous levels of remuneration does not in itself justify those payments. . . . At a fiscal court meeting in 1976, Hartlage led a surprise move to . . . more than double the salaries of the county commissioners! His actions demonstrated his unmistakable disrespect for the office of the chief executive of this county and his utter disdain for the spirit of laws that govern our county system. . . . [U]sing the gray fringes of the law for his

Page 48

own personal gain, Hartlage led the move to funnel county tax dollars into commissioners' pockets." App. 1-2.

On behalf of himself and his running mate, Creech pledged the taxpayers some relief:

"We abhor the commissioners' outrageous salaries. And to prove the strength of our convictions, one of our first official acts as county commissioners will be to lower our salary to a more realistic level. We will lower our salaries, saving the taxpayers $36,000 during our first term of office, by $3,000 each year." Id., at 2.2

Shortly after the press conference, Brown and Creech learned that their commitment to lower their salaries arguably violated the Kentucky Corrupt Practices Act. On August 19, 1979, they issued a joint statement retracting their earlier pledge:

"We are men enough to admit when we've made a mistake.

"We have discovered that there are Kentucky court decisions and Attorney General opinions which indicate that our pledge to reduce our salaries if elected may be illegal.

* * * * *

". . . . [W]e do hereby formally rescind our pledge to reduce the County Commissioners' salary if elected and in-

Page 49

stead pledge to seek corrective legislation in the next session of the General Assembly, to correct this silly provision of State Law." Id., at 4-5.

In the November 6, 1979, election, Brown defeated Hartlage by 10,151 votes.3 Creech was defeated.

Hartlage then filed this action in the Jefferson Circuit Court, alleging that Brown had violated the Corrupt Practices Act and seeking to have the election declared void and the office of Jefferson County Commissioner, "C" District, vacated by Brown. Section 121.055, upon which Hartlage based his claim, provides:

"Candidates prohibited from making expenditure, loan, promise, agreement, or contract as to action when elected, in consideration for vote.—No candidate for nomination or election to any state, county, city or district office shall expend, pay, promise, loan or become pecuniarily liable in any way for money or other thing of value, either directly or indirectly, to any person in consideration of the vote or financial or moral support of that person. No such candidate shall promise, agree or make a contract with any person to vote for or support any particular individual, thing or measure, in consideration for the vote or the financial or moral support of that person in any election, primary or nominating convention, and no person shall require that any candidate make such a promise, agreement or contract." Ky.Rev.Stat. § 121.055 (1982).4

Page 50

In Sparks v. Boggs, 339 S.W.2d 480 (1960), the Kentucky Court of Appeals held that candidates' promises to serve at yearly salaries of $1, and to vote to distribute the salary savings to specified charitable organizations, violated the Corrupt Practices Act where the salaries had been "fixed by law." In the instant case, the trial court found that Brown's prospective salary had been fixed by law and that, under the reasoning of Sparks, Brown's promise violated the Act. Nevertheless, the court concluded that in light of Brown's retraction, the defeat of his running mate, who had joined in the pledge, and the presumption that the will of the people had been revealed through the election process, Brown had been "fairly elected." App. 25. It thus declined to order a new election. Id., at 26.

The Kentucky Court of Appeals reversed. 618 S.W.2d 603. That court agreed with the Circuit Court that the salary of County Commissioners was fixed by law,5 and that Brown's statement was proscribed by § 121.055 as construed in Sparks v. Boggs, supra.6 The Court of Appeals also held, however, that the trial court had erred in failing to order a new election. App. 34-35. It held that retraction of the of-

Page 51

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  • Serafine v. Branaman, No. 14–51151.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 12, 2016
    ...1, 10, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (discussing why commercial speech needs a lesser degree of protection).14 Brown v. Hartlage, 456 U.S. 45, 61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J.,......
  • U.S.A v. Alvarez, No. 08-50345.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 17, 2010
    ...erring candidate's political opponent. The preferred First Amendment remedy of “more speech, not enforced silence,” thus has special force.456 U.S. 45, 61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Gertz, 418 U.S. at 339-404, 94 S.Ct. 2997, and Whitney v. California, 274 U.S. 357, 377,......
  • Pestrak v. Ohio Elections Com'n, No. C-2-84-876.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 7, 1987
    ...to control that debate, especially in the context of a political campaign, it must have a compelling reason to do so. Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). As stated in Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 Whatever differences may ex......
  • Dun Bradstreet, Inc v. Greenmoss Builders, Inc, No. 83-18
    • United States
    • United States Supreme Court
    • March 21, 1984
    ...at 1918 (citations omitted). Yet similar regulation of political speech is subject to the most rigorous scrutiny. See Brown v. Hartlage, 456 U.S. 45, 52-53, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732 (1982); New York Times Co. v. Sullivan, 376 U.S. 254, 279, n. 19, 84 S.Ct. 710, 725, n. 19, 11 L.......
  • Request a trial to view additional results
176 cases
  • Serafine v. Branaman, No. 14–51151.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 12, 2016
    ...1, 10, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (discussing why commercial speech needs a lesser degree of protection).14 Brown v. Hartlage, 456 U.S. 45, 61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J.,......
  • U.S.A v. Alvarez, No. 08-50345.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 17, 2010
    ...erring candidate's political opponent. The preferred First Amendment remedy of “more speech, not enforced silence,” thus has special force.456 U.S. 45, 61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Gertz, 418 U.S. at 339-404, 94 S.Ct. 2997, and Whitney v. California, 274 U.S. 357, 377,......
  • Pestrak v. Ohio Elections Com'n, No. C-2-84-876.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 7, 1987
    ...to control that debate, especially in the context of a political campaign, it must have a compelling reason to do so. Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). As stated in Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 Whatever differences may ex......
  • Dun Bradstreet, Inc v. Greenmoss Builders, Inc, No. 83-18
    • United States
    • United States Supreme Court
    • March 21, 1984
    ...at 1918 (citations omitted). Yet similar regulation of political speech is subject to the most rigorous scrutiny. See Brown v. Hartlage, 456 U.S. 45, 52-53, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732 (1982); New York Times Co. v. Sullivan, 376 U.S. 254, 279, n. 19, 84 S.Ct. 710, 725, n. 19, 11 L.......
  • Request a trial to view additional results

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