Ballot selfies are protected speech

Scott Forsyth, The Daily Record Newswire

My brother lives in New Hampshire. He likes to remind me that he and his neighbors “live free or die” trying to do so. For example, he does not pay any income tax or sales tax. The state legislators, of which there are 424, the most in the country, receive an annual salary of only $100.

I reply those same legislators do not fund at all the state universities. The next time I see him I will quiz him about the law his legislature adopted last year banning the practice of displaying photographs of completed ballots “via social media.” It did so in the name of preventing vote buying and voter coercion.

Those of us living outside the Granite State may never have heard about the ban on “ballot selfies” except for Andrew Langlois. He resides in Berlin in the north part of the state.

Langlois went to vote in the 2014 Republican primary and did not like the choices for U.S. Senate. Instead, he wrote in the name of his recently-deceased dog. He took a picture of the ballot and later posted it to Facebook. Accompanying the picture was graphic text expressing his frustration over the lack of choice. He was not aware of the law just adopted by the legislature.

The attorney general was aware and saw the post. It launched an investigation of Langlois. It also investigated two candidates who took pictures of their ballots and posted the pictures, openly defying the law. One wrote “Come at me, bro.”

The three targets sought the assistance of the ACLU. It filed a lawsuit on their behalf, alleging the law violated the First Amendment. Last week a federal district court agreed, Rideout v. Gardner, No. 14-CV-489 (D.N.H. Aug. 11, 2015).

The early part of the decision is an interesting read, reviewing the history of vote buying. In the 1700s and 1800s voting was “an open, public discussion, witnessed by all and improperly influenced by some.” An 1887 study estimated one-fifth of the voters in New York City were bribed. The price of a vote varied between a glass of whiskey and $20. The introduction of the secret ballot in the late 1800s and the passage of laws criminalizing vote buying greatly reduced the practice.

After the lesson in history, the court analyzed the law. Initially it had to decide whether the law was a content-based restriction on speech or just a time, place and manner restriction on the expression of protected speech? If the former, the law was subject to the usually-fatal strict scrutiny.

The court had no problem finding the law to be content-based, because it restricted speech on the basis of its subject matter. The law barred the display of images of marked ballots via social media. Unmarked ballots may be displayed. All other images may be displayed by social media.

The fact the voter has other ways to communicate how he voted does not turn the law into a time, place and manner restriction. In the view of the court, the law deprived voters of “one of their most powerful means of letting the world know how they voted.”

While the ballot itself is a nonpublic forum, the law did not restrict what a voter may write on the ballot. Instead, it regulates what the voter can disclose about his ballot far removed in time and space from the casting of the ballot.

Strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,” Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). New Hampshire failed to meet its burden on either part.

The court acknowledged preventing vote buying and voter coercion are compelling interests “in the abstract.” However, “the state must specifically identify an ‘actual problem’ in need of solving,” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).

This New Hampshire could not do. Neither the legislative history nor the record before the court contained any evidence that images of marked ballots had been used or were about to be used to facilitate vote buying or voter coercion anywhere in the United States, let alone New Hampshire.

The state cited a Supreme Court decision in which historical evidence of a problem justified a current ban on campaigning around polling places. The court rejected the comparison. It noted vote buying had not been a significant problem in more than 100 years. Furthermore, social media is not brand new. By now evidence of its misuse in elections would have surfaced.

The law was not narrowly tailored, because it would most likely ensnare persons, like Langlois, wishing to make a political point by displaying their completed ballots. The few who are actually buying votes or coercing voters would not communicate their plans by social media. Less restrictive would be a law that explicitly made unlawful the display of an image of a completed ballot via social media for the purpose of buying a vote or coercing a voter.

My brother can go back to living freely. For the rest of us, this case is yet another reminder we must remain vigilant against government attacks on online speech. Those attacks can come in big gulps, like the NSA’s interception of the contents of foreign emails, and small nibbles, like New Hampshire’s ban on ballot selfies.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.