In state and local government, politicians (or their aides) can have financial interests that might influence their views about specific issues under their consideration as government officials. Some states pass laws prohibiting certain conflicts of interests, but if what a politician says, and how he votes, are protected as free speech under the First Amendment, then laws cannot limit it.

A fascinating case from Nevada reveals a growing split among conservatives about what constitutes free speech, and what government may prohibit due to conflicts of interests. While the U.S. Supreme Court was unanimous in upholding a Nevada law combating conflicts of interests by state legislators, Justices Scalia and Alito disagreed sharply in their reasoning.

On June 13, the Supreme Court upheld a Nevada law prohibiting a legislator from voting on or advocating the passage or failure of a bill if he has a related conflict of interest. Specifically, "a public officer shall not vote upon or advocate the passage or failure of" a matter for "which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others."

The Nevada Supreme Court struck this down as contrary to the First Amendment right of free speech, and up it went to the U.S. Supreme Court. By a 9-0 margin, the Supreme Court reversed the Nevada Supreme Court and upheld this law. Nevada Commission on Ethics v. Carrigan, 180 L. Ed. 2d 150 (2011).

The actual conflict in this case concerned a councilman who voted to approve a hotel/casino project even though his campaign manager had allegedly worked as a paid consultant for the company that proposed the project. The councilman argued that this law violated his First Amendment right to free speech.

Justice Scalia, writing for the Court, held that voting by a legislator is not free speech because it is done on behalf of the public. A public official has no right to vote in his capacity as a public servant; his vote as a public official is a privilege, not a right. Justice Scalia then cited a long tradition of conflict-of-interest laws concerning public servants, and concluded that the Nevada law is constitutional because legislative voting is not free speech.

But if a legislator's vote is not free speech, then what about his statements in support of or against the bill? Justice Alito, who increasingly disagrees with Justice Scalia about free speech issues, noted that legislators often speak out about issues and even vote in order to "make a statement." Examples include "John Quincy Adams' vote in favor of the Embargo Act of 1807, a vote that is said to have cost him his Senate seat, and Sam Houston's vote against the Kansas-Nebraska Act, a vote that was deeply unpopular in the South." Justice Alito observed that surely the Nevada statute infringes on free speech, but it should be upheld because of the founding-era tradition that legislative recusal rules were not considered to be impermissible restrictions on free speech.

Justice Kennedy, who has the most expansive view of free speech on the Court, was not content with either Justice Scalia's or Alito's views. Justice Kennedy suggested that this law "may impose a significant burden on activities protected by the First Amendment," implying that he may vote to strike down a similar law if the facts are more compelling.