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.
(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 candidacyresulting in persons of independent wealth but less
ability being chosen over those who, though better qualified, cannot afford
to serve at a reduced salaryit 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, 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."

* 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 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:
7

"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.

*****

10

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

11

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

Creech was defeated.

12

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:

13

"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

14

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.
15

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 offending statement was "of no consequence under the law of
this state," id., at 35, and that the trial court was mistaken in believing that it
possessed the discretionary authority to balance the gravity of the violation
against the disenfranchisement of the electorate that would result from
declaring the election void, ibid. With respect to Brown's First Amendment
claims, the court was of the view that "[t]o hold that promises to serve at
reduced compensation in violation of the Corrupt Practices Act are immune
from regulation in view of the provisions of the United States Constitution is to
open the door to arguments that other statements in violation of the Corrupt
Practices Act are protected because they involve speech and self-expression."
Id., at 36. The court quoted approvingly the maxims that "[a] state may punish
those who abuse the constitutional freedom of speech by utterances inimical to
the public welfare, tending to corrupt public morals, incite to crime, or disturb
the public peace," and that "it has never been deemed an abridgement of
freedom of speech or press to make a course of conduct illegal merely because
the conduct was in part initiated, evidenced, or carried out by means of
language." Id., at 36-37, quoting 16A Am.Jur.2d, Constitutional Law 409,
507 (1979). The court then concluded that Brown's "statement was not
constitutionally protected." App. 37.

16

In an opinion denying petitioner's motion for rehearing, the court more

pointedly addressed petitioner's First Amendment arguments. The court found
that the State's interest in the fairness and integrity of its elections was
compelling, and that the State could insist that elections be conducted free of
corruption and bribery. Id., at 39. The court restated its view that under the laws
of the State a promise such as Brown's was considered an attempt to buy votes
or to bribe the voters. Ibid. Finally, the court rejected petitioner's argument that
121.055, as construed by Sparks, supra, was "unconstitutionally broad."
Although the court found some appeal in Brown's argument that "[i]f carried to

its logical extreme . . . any promise by a candidate to increase the efficiency and
thus lower the cost of government might likewise be considered as an attempt to
buy votes," the court was of the view that Sparks controlled its disposition and
suggested to petitioner that he seek reconsideration of that decision in the
Supreme Court of Kentucky. App. 39-40. The Supreme Court of Kentucky
denied review. Id., at 41. We granted the petition for certiorari. 450 U.S. 1029,
101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).
II
17

We begin our analysis of 121.055 by acknowledging that the States have a

legitimate interest in preserving the integrity of their electoral processes. Just as
a State may take steps to ensure that its governing political institutions and
officials properly discharge public responsibilities and maintain public trust and
confidence, a State has a legitimate interest in upholding the integrity of the
electoral process itself. But when a State seeks to uphold that interest by
restricting speech, the limitations on state authority imposed by the First
Amendment are manifestly implicated.

18

At the core of the First Amendment are certain basic conceptions about the
manner in which political discussion in a representative democracy should
proceed. As we noted in Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct.
1434, 1436-1437, 16 L.Ed.2d 484 (1966):

19

"Whatever differences may exist about interpretations of the First Amendment,

there is practically universal agreement that a major purpose of that
Amendment was to protect the free discussion of governmental affairs.

20

This of course includes discussions of candidates, structures and forms of

government, the manner in which government is operated or should be
operated, and all such matters relating to political processes."

21

The free exchange of ideas provides special vitality to the process traditionally
at the heart of American constitutional democracythe political campaign. "
[I]f it be conceded that the First Amendment was 'fashioned to assure the
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people,' then it can hardly be doubted that the
constitutional guarantee has its fullest and most urgent application precisely to
the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401
U.S. 265, 271-272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971) (citation omitted).
The political candidate does not lose the protection of the First Amendment

when he declares himself for public office. Quite to the contrary:

22

"The candidate, no less than any other person, has a First Amendment right to
engage in the discussion of public issues and vigorously and tirelessly to
advocate his own election and the election of other candidates. Indeed, it is of
particular importance that candidates have the unfettered opportunity to make
their views known so that the electorate may intelligently evaluate the
candidates' personal qualities and their positions on vital public issues before
choosing among them on election day. Mr. Justice Brandeis' observation that in
our country 'public discussion is a political duty,' Whitney v. California, 274
U.S. 357, 375 [47 S.Ct. 641, 648, 71 L.Ed. 1095] (1927) (concurring opinion),
applies with special force to candidates for public office." Buckley v. Valeo, 424
U.S. 1, 52-53 [96 S.Ct. 612, 651, 46 L.Ed.2d 659] (1976) (per curiam).

23

When a State seeks to restrict directly the offer of ideas by a candidate to the
voters, the First Amendment surely 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.

III
24

On its face, 121.055 prohibits a candidate from offering material benefits to

voters in consideration for their votes, and, conversely, prohibits candidates
from accepting payments in consideration for the manner in which they serve
their public function. Sparks v. Boggs, 339 S.W.2d 480 (1960), placed a not
entirely obvious gloss on that provision with respect to candidate utterances
concerning the salaries of the office for which they were running, by barring
the candidate from promising to reduce his salary when that salary was already
"fixed by law." We thus consider the constitutionality of 121.055 with respect
to the proscription evident on the face of the statute, and in light of the more
particularized concerns suggested by the Sparks gloss. We discern three bases
upon which the application of the statute to Brown's promise might conceivably
be justified: first, as a prohibition on buying votes; second, as facilitating the
candidacy of persons lacking independent wealth; and third, as an application of
the State's interests and prerogatives with respect to factual misstatements. We
consider these possible justifications in turn.

A.
25

The first sentence of 121.055 prohibits a political candidate from giving, or

promising to give, anything of value to a voter in exchange for his vote or

support. In many of its possible applications, this provision would appear to

present little constitutional difficulty, for a State may surely prohibit a
candidate from buying votes. No body politic worthy of being called a
democracy entrusts the selection of leaders to a process of auction or barter.
And as a State may prohibit the giving of money or other things of value to a
voter in exchange for his support, it may also declare unlawful an agreement
embodying the intention to make such an exchange. Although agreements to
engage in illegal conduct undoubtedly possess some element of association, the
State may ban such illegal agreements without trenching on any right of
association protected by the First Amendment. The fact that such an agreement
necessarily takes the form of words does not confer upon it, or upon the
underlying conduct, the constitutional immunities that the First Amendment
extends to speech. Finally, while a solicitation to enter into an agreement
arguably crosses the sometimes hazy line distinguishing conduct from pure
speech, such a solicitation, even though it may have an impact in the political
arena, remains in essence an invitation to engage in an illegal exchange for
private profit, and may properly be prohibited. See Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 496, 102 S.Ct. 1186, 1192, 71 L.Ed.2d
362 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm'n,
447 U.S. 557, 563-564, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980);
Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388, 93 S.Ct.
2553, 2560, 37 L.Ed.2d 669 (1973).
26

It is thus plain that some kinds of promises made by a candidate to voters, and
some kinds of promises elicited by voters from candidates, may be declared
illegal without constitutional difficulty. But it is equally plain that there are
constitutional limits on the State's power to prohibit candidates from making
promises in the course of an election campaign. Some promises are universally
acknowledged as legitimate, indeed "indispensable to decisionmaking in a
democracy," First National Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98
S.Ct. 1407, 1416, 55 L.Ed.2d 707 (1978); and the "maintenance of the
opportunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained by lawful
means . . . is a fundamental principle of our constitutional system." Stromberg
v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931).
Candidate commitments enhance the accountability of government officials to
the people whom they represent, and assist the voters in predicting the effect of
their vote. The fact that some voters may find their self-interest reflected in a
candidate's commitment does not place that commitment beyond the reach of
the First Amendment. We have never insisted that the franchise be exercised
without taint of individual benefit; indeed, our tradition of political pluralism is
partly predicated on the expectation that voters will pursue their individual

good through the political process, and that the summation of these individual
pursuits will further the collective welfare.7 So long as the hoped-for personal
benefit is to be achieved through the normal processes of government, and not
through some private arrangement, it has always been, and remains, a reputable
basis upon which to cast one's ballot.
27

It remains to determine the standards by which we might distinguish between

those "private arrangements" that are inconsistent with democratic government,
and those candidate assurances that promote the representative foundation of
our political system. We hesitate before attempting to formulate some test of
constitutional legitimacy: the precise nature of the promise, the conditions upon
which it is given, the circumstances under which it is made, the size of the
audience, the nature and size of the group to be benefited, all might, in some
instance and to varying extents, bear upon the constitutional assessment. But
acknowledging the difficulty of rendering a concise formulation, or recognizing
the possibility of borderline cases, does not disable us from identifying cases
far from any troublesome border.

28

It is clear that the statements of petitioner Brown in the course of the August 15
press conference were very different in character from the corrupting
agreements and solicitations historically recognized as unprotected by the First
Amendment. Notably, Brown's commitment to serve at a reduced salary was
made openly, subject to the comment and criticism of his political opponent
and to the scrutiny of the voters. We think the fact that the statement was made
in full view of the electorate offers a strong indication that the statement
contained nothing fundamentally at odds with our shared political ethic.

29

The Kentucky Court of Appeals analogized Brown's promise to a bribe. But

however persuasive that analogy might be as a matter of state law, there is no
constitutional basis upon which Brown's pledge to reduce his salary might be
equated with a candidate's promise to pay voters for their support from his own
pocketbook. Although upon election Brown would undoubtedly have had a
valid claim to the salary that had been "fixed by law," Brown did not offer the
voters a payment from his personal funds. His was a declaration of intention to
exercise the fiscal powers of government office within what he believed (albeit
erroneously) to be the recognized framework of office. At least to outward
appearances, the commitment was fully in accord with our basic understanding
of legitimate activity by a government body. Before any implicit monetary
benefit to the individual taxpayer might have been realized, public officials
among them, of course, Brown himselfwould have had to approve that
benefit in accordance with the good faith exercise of their public duties.
Although Brown may have been incorrect in suggesting that his salary could

have been lawfully reduced, this cannot, in itself, transform his promise into an
invitation to engage in a private and politically corrupting arrangement.
30

In addition, despite the Kentucky courts' characterization of the promise to

serve at a reduced salary as an offer "to reduce pro tanto the amount of taxes
each individual taxpayer must pay, and thus . . . an offer to the voter of
pecuniary gain," App. 33, it is impossible to discern in Brown's generalized
commitment any invitation to enter into an agreement that might place the
statement outside the realm of unequivocal protection that the Constitution
affords to political speech. Not only was the source of the promised benefit the
public fisc, but that benefit was to extend beyond those voters who cast their
ballots for Brown, to all taxpayers and citizens. Even if Brown's commitment
could in some sense have been deemed an "offer," it scarcely contemplated a
particularized acceptance or a quid pro quo arrangement. It was to be honored,
"if elected"; it was conditioned not on any particular vote or votes, but entirely
on the majority's vote.

31

In sum, Brown did not offer some private payment or donation in exchange for
voter support; Brown's statement can only be construed as an expression of his
intention to exercise public power in a manner that he believed might be
acceptable to some class of citizens. If Brown's expressed intention had an
individualized appeal to some taxpayers who felt themselves the likely
beneficiaries of his form of fiscal restraint, that fact is of little constitutional
significance. The benefits of most public policy changes accrue not only to the
undifferentiated "public," but more directly to particular individuals or groups.
Like a promise to lower taxes, to increase efficiency in government, or indeed
to increase taxes in order to provide some group with a desired public benefit or
public service, Brown's promise to reduce his salary cannot be deemed beyond
the reach of the First Amendment, or considered as inviting the kind of corrupt
arrangement the appearance of which a State may have a compelling interest in
avoiding. See Buckley v. Valeo, 424 U.S., at 27, 96 S.Ct., at 638.

32

A State may insist that candidates seeking the approval of the electorate work
within the framework of our democratic institutions, and base their appeal on
assertions of fitness for office and statements respecting the means by which
they intend to further the public welfare. But 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.

B
33

Sparks v. Boggs, 339 S.W.2d 480 (1960), relied in part on the interest a State

may have 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.8 The State might legitimately fear that such emphasis
on free public service might result in persons of independent wealth but less
ability being chosen over those who, though better qualified, could not afford to
serve at a reduced salary. But if 121.055 was designed to further this interest,
it chooses a means unacceptable under the First Amendment.9 In barring certain
public statements with respect to this issue, the State ban runs directly contrary
to the fundamental premises underlying the First Amendment as the guardian of
our democracy. That Amendment embodies our trust in the free exchange of
ideas as the means by which the people are to choose between good ideas and
bad, and between candidates for political office. 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 simply not the function of government to
"select which issues are worth discussing or debating," Police Department of
Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212
(1972), in the course of a political campaign.
C
34

Amicus points out that 121.055, as applied through Sparks v. Boggs, supra,
bars promises to serve at a reduced salary only when the salary of the official
has been "fixed by law," and where the promise cannot, therefore, be delivered.
Of course, demonstrable falsehoods are not protected by the First Amendment
in the same manner as truthful statements. Gertz v. Robert Welch, Inc., 418 U.S.
323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). But "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,' " New York Times Co. v. Sullivan, 376 U.S. 254, 271-272, 84 S.Ct.
710, 721, 11 L.Ed.2d 686 (1964), quoting NAACP v. Button, 371 U.S. 415,
433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Section 121.055, as applied in
this case, has not afforded the requisite "breathing space."

35

The Commonwealth of Kentucky has provided that a candidate for public office
forfeits his electoral victory if he errs in announcing that he will, if elected,
serve at a reduced salary. As the Kentucky courts have made clear in this case,
a candidate's liability under 121.055 for such an error is absolute: His election
victory must be voided even if the offending statement was made in good faith
and was quickly repudiated. The chilling effect of such absolute accountability
for factual misstatements in the course of political debate is incompatible with
the atmosphere of free discussion contemplated by the First Amendment in the
context of political campaigns. See Monitor Patriot Co. v. Roy, 401 U.S. 265,

91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Ocala Star-Banner Co. v. Damron, 401

U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971). Although the state interest in
protecting the political process from distortions caused by untrue and
inaccurate speech is somewhat different from the state interest in protecting
individuals from defamatory falsehoods, the principles underlying the First
Amendment remain paramount. Whenever compatible with the underlying
interests at stake, under the regime of that Amendment "we depend for . . .
correction not on the conscience of judges and juries but on the competition of
other ideas." Gertz v. Robert Welch, Inc., supra, 418 U.S. at 339-340, 94 S.Ct.
at 3006-3007. In a political campaign, a candidate's factual blunder is unlikely
to escape the notice of, and correction by, the erring candidate's political
opponent. The preferred First Amendment remedy of "more speech, not
enforced silence," Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648,
71 L.Ed. 1095 (1927) (Brandeis, J., concurring), thus has special force. Cf.
Gertz v. Robert Welch, Inc., supra, 418 U.S. at 344, 94 S.Ct. at 3009. There has
been no showing in this case that petitioner made the disputed statement other
than in good faith and without knowledge of its falsity, or that he made the
statement with reckless disregard as to whether it was false or not. Moreover,
petitioner retracted the statement promptly after discovering that it might have
been false. Under these circumstances, nullifying petitioner's election victory
was inconsistent with the atmosphere of robust political debate protected by the
First Amendment.
IV
36

Because we conclude that 121.055 has been applied in this case to limit
speech in violation of the First Amendment, we reverse the judgment of the
Kentucky Court of Appeals and remand for proceedings not inconsistent with
this opinion.

37

It is so ordered.

38

THE CHIEF JUSTICE concurs in the judgment.

39

Justice REHNQUIST, concurring in the result.

40

I agree that the provision of the Kentucky Corrupt Practices Act discussed by
the Court in its opinion impermissibly limits freedom of speech on the part of
political candidates in violation of the First and Fourteenth Amendments to the
United States Constitution. Because on different facts I think I would give more
weight to the State's interest in preventing corruption in elections, I am unable

to join the Court's analogy between such laws and state defamation laws. I think
Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), affords
ample basis for reaching the result at which the Court arrives, and I see no need
to rely on other precedents which do not involve state efforts to regulate the
electoral process.

Although respondent filed a brief in opposition to the petition for writ of

certiorari, he did not file a brief on the merits. At the invitation of the Court, L.
Stanley Chauvin, Jr., Esq., submitted a brief and argued in support of the
judgment below as amicus curiae.

Brown echoed his running mate's call for fiscal restraint:

". . . These two proposalscutting our own salaries and reorganizing the
commissioner's office staff, will save the taxpayers over $172,000 during our
term of office.
"We make these statements fully aware that the office we intend to occupy
should set the tone for the type of public officials we intend to be.
"Under our guidance, extravagance of public expense will be a thing of the
past, and responsibility and integrity will be our watchwords, Progress through
Cooperation our theme." App. 3.

Hartlage received a total of 83,675 votes; Brown received 93,826 votes.

Certificate of Election, id., at 7.

In 1980, the provision was amended to replace the word "demand" in the last
clause with the word "require." 1980 Ky.Acts, ch. 292, 3.
Under Kentucky law, an equity action to contest an election may be maintained
by any candidate who received more than 25% of the number of votes that were
cast for the successful candidate. Ky.Rev.Stat. 120.155, 120.165 (1982).
The Kentucky Corrupt Practices Act identifies a violation of 121.055 as a
proper basis for such a contest, and provides that "[i]f no such violation [of the
Corrupt Practices Act] by the contestant or by others in his behalf with his
knowledge, appears, and it appears that such provisions have been violated by
the contestee, or by others in his behalf with his knowledge, the nomination or
election of the contestee shall be declared void." Ky.Rev.Stat. 120.015
(1982).

The Court of Appeals noted that under Kentucky law, "salaries for county

officers elected by popular vote shall be set by the fiscal court 'not later than
the first Monday in May in the year in which the officers are elected, and the
compensation of the officer shall not be changed during the term. . . .' Brown
promised to do an act that he could not legally do." App. 32-33 (quoting
Ky.Rev.Stat. 64.530(4) (1980)). See Ky.Const. 161, 246.
6

The court quoted the following extract from Sparks, describing the rationale
underlying the statute's application to statements such as Brown's:
" ' "An agreement by a candidate for office that if chosen he will discharge the
duties of the office without compensation or for a lesser compensation than that
provided by law, or will pay part of his salary into the public treasury, is illegal,
whether made in good faith or not. The underlying principle . . . is that when a
candidate offers to discharge the duties of an elective office for less than the
salary fixed by law, a salary which must be paid by taxation, he offers to reduce
pro tanto the amount of taxes each individual taxpayer must pay, and thus
makes an offer to the voter of pecuniary gain." [quoting 43 Am.Jur., Public
Officers 374, p. 159 (1942)].
" 'It appears to us there can be no escape from the conclusion that a promise to
take a reduction in the salary set by law for an elective public office, or an
agreement to discharge the duties of the office gratis, advanced by one to
induce votes for his candidacy, is so vicious in its tendency as to constitute a
violation of the Corrupt Practices Act.' " App. 33.

See The Federalist No. 10. The Madisonian democratic tradition extolled a
system of political pluralism in which "the private interest of every individual
may be a sentinel over the public rights." The Federalist No. 51, p. 324 (H.
Lodge ed. 1888). But it was also contemplated within that tradition that the
individual may perceive his interest as according with the public good: "In the
extended republic of the United States, and among the great variety of interests,
parties and sects which it embraces, a coalition of a majority of the whole
society could seldom take place on any other principles than those of justice
and the general good." Id., at 327.

As explained by the Kentucky Court of Appeals:

"To hold otherwise would permit the various elective public offices to become
filled by those who would purchase their election thereto by making the most
extravagant bid. The auction method of choosing a public officer would
supplant the personal fitness test. Eventually most of the public offices would
be occupied by the opulent, who could afford to serve without pay, or by the
ambitious, who would serve only for the pittance of honor attached to the
office, or by the designing grafter, who would surely obtain his remuneration

by methods which would not bear scrutiny. Under such a system good
government would certainly vanish from every subdivision of the state." 339
S.W.2d, at 484.
Other courts have expressed similar views. For example, Sparks quoted with
approval the following passage from the opinion of Justice Brewer of the
Supreme Court of Kansas, later Justice Brewer of this Court, in State ex rel. Bill
v. Elting, 29 Kan. 397, 402 (1883):
" 'The theory of popular government is that the most worthy should hold the
offices. Personal fitnessand in that is included moral character, intellectual
ability, social standing, habits of life, and political convictionsis the single
test which the law will recognize. That which throws other considerations into
the scale, and to that extent tends to weaken the power to personal fitness,
should not be tolerated. It tends to turn away the thought of the voter from the
one question which should be paramount in his mind when he deposits his
ballot. It is in spirit at least, bribery, more insidious, and therefore more
dangerous, than the grosser form of directly offering money to the voter.' " 339
S.W.2d, at 483-484.
See also State ex rel. Clements v. Humphreys, 74 Tex. 466, 12 S.W. 99 (1889).
9

A State could address this concern by prohibiting the reduction of a public

official's salary during his term of office, as Kentucky has done here. See n. 5,
supra. Such a prohibition does not offend the First Amendment. We note, only
in passing, that along with the 10 proposed Articles that upon ratification
became the first 10 Amendments to the Constitution, were 2 others, proposed
Articles I and II, which were not ratified. Article II provided: "No law varying
the compensation for the services of the Senators and Representatives shall take
effect, until an election of Representatives shall have intervened."