Free speech rights at the polls

When Americans go to the polls, they exercise their right to the franchise. Famed civil rights leader and former U.S. Rep. John Lewis referred to the right to vote as “almost sacred” and called it “the most powerful non-violent tool we have in a democracy.” He also emphasized that the First Amendment right to free speech was essential to the civil rights movement.   

During the Civil Rights Movement, protestors exercised their First Amendment freedoms to challenge racial discrimination in voting and called for a national commitment to voting rights that culminated in the Voting Rights Act of 1965. In these struggles, the right to freedom of speech led to voting rights expansion — the two rights existed in peaceful harmony. 

But, at other times, individuals engage in political or personal expression at the polls and such expression is deemed at odds or in conflict with the right to vote. 

Supreme Court upholds ‘Campaign-Free Zone’ law around polls 

The Supreme Court addressed these two constitutional rights, and the possible tension between them, in Burson v. Freeman (1992), which involved a Tennessee law creating a 100-foot “campaign-free zone” around polling places. The law prohibited individuals from soliciting votes or displaying campaign posters or other campaign materials within the 100-foot zone. Tennessee claimed the law furthered the state’s compelling interests in protecting citizens’ right to vote freely and “protect[ing] the right to vote in an election conducted with integrity and reliability.” 

In his plurality opinion, Justice Harry Blackmun acknowledged the state’s compelling interests but noted that the law was a content-based restriction on political speech. Thus, the state not only had to advance a compelling governmental interest but also to show that its law was narrowly tailored to satisfy the demanding constitutional standard of strict scrutiny. 

Though noting that “a law rarely survives strict scrutiny,” Blackmun found that Tennessee’s 100-foot polling place restriction did survive, because it was a narrow way to address the two persistent evils of “voter intimidation and election fraud.” He wrote that there was “ample evidence that political candidates have used campaign workers to commit voter intimidation or electoral fraud.” He also called the 100-foot restriction on speech a “minor geographic limitation.” 

Supreme Court strikes down ban on voters wearing all types of ‘political apparel’

However, the Supreme Court reached a different result in Minnesota Voters Alliance v. Mansky (2018), a case involving a Minnesota law that established a “political apparel ban” for voters. Under this law, a “political badge, political button, or other political insignia may not be worn at or about the polling place.”

The Minnesota Voters Alliance and several registered voters challenged the law on First Amendment grounds. One plaintiff alleged that the law prohibited him from wearing a “Please I.D. Me” button and another was told he could not wear a “Don’t Tread on Me” t-shirt.

The Court found that the Minnesota ban on political apparel took place in the voting booth, a nonpublic forum. In a nonpublic forum, restrictions on speech must be viewpoint neutral and reasonable. The Court deemed the restriction viewpoint neutral, as it prohibited any type of political speech, not just political speech advocating a particular viewpoint. However, the Court determined that the law was not reasonable in part because of the broad meaning of the term “political.”  

Chief Justice John Roberts explained in his majority opinion: “Here, the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test.”

Chief Justice Roberts addressed the state’s “official guidance,” a 2010 Election Day Policy manual which explained the political apparel ban applied to “[i]ssue oriented material designed to influence or impact voting.” Roberts believed that the political apparel ban was far too broad, because nearly anything could be classified as issue-oriented material that could influence or impact voting.  Roberts explained: “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable."

“Would a ‘Support Our Troops’ shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans?” he asked. “What about a ‘#MeToo’ shirt, referencing the movement to increase awareness of sexual harassment and assault?”

Roberts emphasized that other states also had laws prohibiting certain types of apparel at voting places, but noted that those laws were more carefully defined and circumscribed. For example, he cited Texas’ law which prohibited “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.”

Ultimately, the Court found that “if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here.” 

Ballot selfies 

Another pressing free-speech issue at the polls is “ballot selfies” — when voters take pictures of their ballots and then post them on social media. Some states ban ballot selfies, fearing that they could lead to the buying and selling of votes, or some type of voter coercion. 

Laws banning ballot selfies stand on shaky constitutional ground. While the Supreme Court has not decided such a case, several lower court decisions have addressed the free-speech arguments. A prime example was the U.S. Court of Appeals for the First Circuit’s decision in Rideout v. Gardner (2017), which ruled that New Hampshire’s ballot selfie law violated the First Amendment.  

Although 24 states now have laws on the books legalizing ballot selfies, 14 states still have laws on the books banning the practice. 

The First Circuit found that the alleged evidence of vote buying and possible voter coercion was simply too weak to support the law.  The appellate court explained that “[a] few instances of vote buying in other states do not substantiate New Hampshire’s asserted interest in targeting vote buying through banning the publication of ballot selfies.”  

In the wake of the Rideout decision, some states passed laws that specifically allow voters to display their vote. For example, Hawaii passed a measure that provides: “A voter shall not be prohibited from distributing or sharing an electronic or digital image of the voter’s own marked ballot via social media or other means regardless of how the voter acquired the image.” California also has a law that specifically allows ballot selfies.  

Although 24 states now have laws on the books legalizing ballot selfies, 14 states still have laws on the books banning the practice.[1] For example, Wisconsin’s election fraud statute has a provision that prohibits a voter from identifying or displaying the voter’s ballot, and North Carolina’s law prohibits photographing any voted ballot.  

It may take a decision by the Supreme Court to resolve this issue definitively. 

By David L. Hudson, Jr., Associate Professor of Law at Belmont University (Last updated June 12, 2024)

Notes

[1]As of June 2024, states with laws banning ballot selfies include Florida, Georgia, Illinois, Massachusetts, Missouri, Nevada, New York, North Carolina, Ohio, South Carolina, South Dakota, Tennessee, Texas, and West Virginia. “Ballot selfies, state by state: In a fight over voter intimidation and freedom of expression, see where your state falls,” Vox (Oct 28, 2020).

Where are Ballot Selfies Legal in the United States?