Mazo v. Way

In New Jersey, primary election candidates can include a slogan of their choice next to their name on the ballot. This allows candidates to speak directly to voters at the critical moment when they cast their ballots. But New Jersey requires written consent from any person or New Jersey incorporated association referred to by the candidate’s slogan. That means that if a Republican candidate wants to call themself a “Never-Trump Conservative,” they must get consent from former President Trump–a very unlikely proposition. And without consent, the slogan will be rejected. 

New Jersey’s consent requirement for ballot slogans impermissibly discriminates on the basis of content and viewpoint against speech that is critical of office holders or political associations, while favoring flattering speech by political insiders. This restriction of core political speech cannot survive strict scrutiny under the First Amendment.

But the United States Court of Appeals for the Third Circuit upheld New Jersey’s law after misapplying the Supreme Court’s recent decision on content-based restrictions in City of Austin v. Reagan National Advertising of Austin, LLC. Instead, the Third Circuit applied a deferential balancing test meant for laws that regulate the electoral process. 

FIRE’s amicus brief urges the Supreme Court to take the case to clarify the standard for determining whether a law is considered content- and viewpoint-based.  FIRE’s brief also emphasizes the different ways that New Jersey’s law is viewpoint-based in that it disproportionately excludes critical speech, discriminates against political outsiders, gives the targets of speech a heckler’s veto, and grants arbitrary discretion to state officials. Clarifying these standards will prevent lawmakers from employing laws that deliberately stifle particular content and viewpoints.

On October 2, 2023, the U.S. Supreme Court denied the petition for certiorari.