Wednesday, August 12, 2015
In Rideout v. Gardner, United States District Court Judge Paul Barbadoro has ruled that a New Hampshire statute prohibiting individuals from posting images of their filled-in ballots on social media violates the First Amendment. The statute reads as follows:
No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.
The state attempted to justify the law as a content neutral restriction. After extensive discussion of the the statute's legislative history, the judge examined it under strict scrutiny, noting that it banned posting of executed ballots, not of ballots that had not been filled in, as well as for other reasons.
In the present case, as in Reed, the law under review is content based on its face because it restricts speech on the basis of its subject matter. The only digital or photographic images that are barred by RSA 659:35, I are images of marked ballots that are intended to disclose how a voter has voted. Images of unmarked ballots and facsimile ballots may be shared with others without restriction. In fact, the law does not restrict any person from sharing any other kinds of images with anyone. In short, the law is plainly a content-based restriction on speech because it requires regulators to examine the content of the speech to determine whether it includes impermissible subject matter. Accordingly, like the sign code at issue in Reed, the law under review here is subject to strict scrutiny even though it does not discriminate based on viewpoint and regardless of whether the legislature acted with good intentions when it adopted the law.
The Secretary nevertheless contends that the new law should be exempt from strict scrutiny even if it is a content-based restriction on speech because it is only a partial ban on speech about how a voter has voted. In other words, because the new law leaves voters free to use other means to inform others about how they have voted, the Secretary argues that the law is merely a time, place, or manner restriction on speech that is subject only to intermediate scrutiny. This argument is a nonstarter. As the Supreme Court explained in United States v. Playboy Entertainment Group, Inc., "[t]he distinction between laws burdening and laws banning speech is but a matter of degree.
The Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans." ...Here, the law at issue is a content-based restriction on speech that deprives voters of one of their most powerful means of letting the world know how they voted. The legislature cannot avoid strict scrutiny when it adopts such a law merely by leaving voters with other arguably less effective means of speaking on the subject.
The Secretary also argues that the law should not be considered a content-based restriction on speech because paragraph II of RSA 659.35 additionally prohibits a voter from placing "a distinguishing mark upon his or her ballot." ... That is, because paragraph II prohibits another type of marking on ballots, the new law barring a voter from disclosing an image of a marked ballot is content neutral. This argument fails. The two paragraphs simply regulate two different categories of speech: paragraph I regulates a certain type of speech that ordinarily occurs outside the polling place and paragraph II regulates what types of markings a voter can make on a ballot while in the polling place. Because paragraph I regulates speech based on the content conveyed, paragraph II cannot save it from being a content-based restriction on speech.
In a last-ditch effort to save the law from strict scrutiny, the Secretary argues that completed ballots are a form of government speech and thus do not trigger First Amendment protection at all. He cites Walker v. Texas Division, Sons of Confederate Veterans, which held that Texas's specialty license plate designs constituted government speech and thus Texas was entitled to refuse to issue plates featuring a group's proposed design.... In reaching its decision, the Court in Walker relied on the facts that (1) license plates "long have communicated messages from the States," (2) Texas license plate designs "are often  closely identified in the public mind with the State," and (3) Texas maintains direct control over the messages conveyed on its specialty plates.... The problem at issue here, however, is quite different from the problem the Court resolved in Walker. First, ballots do not communicate messages from the state; they simply list slates of candidates. Second, although blank ballots may be identified with the state, there is no possibility that a voter's marking on a ballot will be misinterpreted as state speech. Third, New Hampshire does not maintain direct control over the messages that people convey on ballots, apart from the restriction that they place no distinguishing mark on their ballot. .... Accordingly, any markings that voters place on their ballots clearly do not qualify as government speech.
The judge ruled that the state could not meet the required burden. It could not demonstrate that a less restrictive alternative to meet its stated goal--that of preventing vote buying--was available.
As the complaints of the voters who are now under investigation reveal, the people who are most likely to be ensnared by the new law are those who wish to use images of their completed ballots to make a political point. The few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media given the criminal nature of the schemes in which they have become involved. As a result, investigative efforts will naturally tend to focus on the low-hanging fruit of innocent voters who simply want the world to know how they have voted for entirely legitimate reasons. When content-based speech restrictions target vast amounts of protected political speech in an effort to address a tiny subset of speech that presents a problem, the speech restriction simply cannot stand if other less restrictive alternatives exist.
The judge granted the plaintiffs' request for declaratory relief but denied their request for an injunction.