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Why Ballot Selfies Are Protected by the First Amendment

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Why Ballot Selfies Are Protected by the First Amendment Science and Technology Law Review Volume 18 Number 3 Article 3 2015 A Picture's Worth a Thousand Words: Why Ballot Selfies are Protected by the First Amendment Daniel A. Horwitz Follow this and additional works at: https://scholar.smu.edu/scitech Recommended Citation Daniel A. Horwitz, A Picture's Worth a Thousand Words: Why Ballot Selfies are Protected by the First Amendment, 18 SMU SCI. & TECH. L. REV. 247 (2015) https://scholar.smu.edu/scitech/vol18/iss3/3 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Science and Technology Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. A Picture's Worth a Thousand Words: Why Ballot Selfies are Protected by the First Amendment Daniel A. Horwitz* On September 9, 2014, Andrew Langlois walked into his polling place disgusted with the candidates who were running for U.S. Senate in the New Hampshire Republican Primary., Rather than voting for one of the ten candi- dates who appeared on his ballot, Mr. Langlois instead decided to vote for "his recently-deceased dog, 'Akira,'" whom he selected as a write-in candi- date.2 Thereafter, Mr. Langlois whipped out his smartphone, snapped a photo of his completed ballot, and posted the photo to his Facebook page along with the caption: "Because all of the candidates SUCK, I did a write-in of Akira."3 Unfortunately for Mr. Langlois, the election did not go his way. To start, Akira failed to win the Republican Party's nomination-instead, that honor went to former Massachusetts Senator Scott Brown, who went on to lose the general election to incumbent New Hampshire Senator Jeanne Shaheen.4 Adding insult to injury, Mr. Langlois also received a call from the New Hampshire Attorney General's Office, which "explained that he was being investigated for posting his ballot on social media" in violation of a recently enacted New Hampshire law that prohibited "taking a digital image or photograph of [one's] marked ballot and distributing or sharing the image via social media or by any other means."5 New Hampshire, for its part, is not alone in prohibiting voters from photographing and sharing photographs of their marked ballots-which have since become known as "ballot selfies." In fact, according to a recent CBS report on the issue, "ballot selfies are against the law" in thirty-five states, and violators are frequently subject to being "punished with fines, invalidated ballots, or even jail time."6 * Daniel Horwitz is an election lawyer in Nashville, Tennessee, and the former Associate General Counsel of the Tennessee Democratic Party. Reach him at [email protected]. 1. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *7 (D.N.H. Aug. 11, 2015). 2. Id. 3. Id. 4. Full 2014 primary election results in New Hampshire, WMUR MANCHESTER (Sept. 9, 2014, 12:00 AM), www.wmur.com/politics/full-primary-election-re sults-in-new-hampshire/27883790; Senate: New Hampshire (Shaheen vs Brown), CNN POLITICS (Nov. 5, 2014, 3:28 PM), www.cnn.com/election/2014/ results/state/NH/senate. 5. N.H. REv. STAT. ANN. § 659:35 (2014); Rideout, 2015 WL 4743731, at *7. 6. Illegal voter "ballot selfies" flood social media (CBS This Morning broadcast Nov. 5, 2014), http://www.cbsnews.com/videos/illegal-voter-ballot-selfies- 248 SMU Science and Technology Law Review [Vol. XVIII Along with two other voters who had posted photos of their ballots on social media during New Hampshire's September 2014 primary election, Mr. Langlois took up the torch of New Hampshire's "live free or die" tradition and sued his state in federal court.7 Along with State Representative Leon Rideout and first-time candidate Brandon Ross-both of whom had publicly memorialized their own candidacies by taking ballot selfiess-Mr. Langlois argued that New Hampshire's ban on ballot photography abridged his rights to freedom of speech and freedom of expression in violation of the First Amendment to the U.S. Constitution.9 In an August 11, 2015, opinion, U.S. District Court Judge Paul Barbadoro agreed, holding that New Hampshire's ballot selfie ban was "invalid because it is a content-based restriction on speech that cannot survive strict scrutiny."1o A similar ruling from the U.S. District Court for the Southern District of Indiana quickly followed suit.11 Unexpectedly, Judge Barbadoro's ruling quickly set off a firestorm in the election law world. Within a week, U.C. Irvine Professor Rick Hasen had penned an article in Reuters entitled: Why the Selfie is a Threat to Democ- racy, in which he argued that Judge Barbadoro "made a huge mistake be- cause without the ballot selfie ban, we could see the reemergence of the buying and selling of votes-and even potential coercion from employers, union bosses and others."12 Of note, Professor Hasen was not alone in ex- flood-social-media. Notably, however, some states have taken the opposite ap- proach. For example, ballot selfies are expressly permitted in Arizona and Utah. See ARiz. REv. STAT. ANN. § 16-1018(4) (Supp. 2015) (West) ("A voter who makes available an image of the voter's own ballot by posting on the internet or in some other electronic medium is deemed to have consented to retransmittal of that image and that retransmittal does not constitute a violation of this section."); UTAH CODE ANN. § 20A-3-504(3) (West Supp. 2015) ("Sub- section (1) does not prohibit an individual from transferring a photograph of the individual's own ballot in a manner that allows the photograph to be viewed by the individual or another."). 7. Erik Eckholm, Selfies in Voting Booths Raise Legal Questions on Speech and Secrecy, N.Y. TIMES (Aug. 24, 2015), www.nytimes.com/2015/08/25/us/selfies -in-voting-booths-raise-legal-questions-on-speech-and-secrecy.html?_r--0. 8. Kristen Carosa, Lawsuit challenges law forbidding posting pics of ballots, WMUR MANCHESTER (Oct. 31, 2014, 10:52 PM), http://www.wmur.com/poli tics/lawsuit-challenges-law-forbidding-posting-pics-of-ballots/29466942. 9. Rideout, 2015 WL 4743731, at *8. 10. Id. at *1. 11. Order Granting Preliminary Injunction, Ind. Civil Liberties Union Found. v. Ind. Sec'y of State, et al., No. 1:15-cv-01356-SEB-DML (S.D. Ind. Oct. 19, 2015), http://www.aclu-in.org/images/newsReleases/DECISION_1_15-cv-13 56-SEB-DMLICLU_v_INSOS_10-19-2015.pdf. 12. Richard L. Hasen, Why the Selfie is a Threat to Democracy, REUTERS (Aug. 18, 2015, 8:47 PM), blogs.reuters.com/great-debate/2015/08/17/why-the-selfie-is- a-threat-to-democracy/. 2015] Ballot Selfies 249 pressing these fears.13 For example, according to Doug Chapin, director of the program for excellence in election administration at the University of Minnesota, "ballot selfies create a vulnerability in the election process that vastly outweighs any societal or personal benefit the selfie brings."14 Despite the concerns expressed by authorities like Professor Hasen, Mr. Chapin, and others, however, Judge Barbadoro was correct in holding that ballot selfies are protected by the First Amendment. To begin, "as a general matter, 'the First Amendment means that government has no power to re- strict expression because of its message, its ideas, its subject matter, or its content.'"15 Because ballot selfie prohibitions forbid individuals from shar- ing one type of image-a photograph of a marked election ballot-but not other images, there is little doubt that such laws represent a content-based restriction on speech.16 As a result, such laws must satisfy an onerous legal standard known as "strict scrutiny."17 To uphold a law under this standard, the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmen- tal interest.8 Unfortunately for proponents of ballot selfie bans, however, the 13. Eckholm, supra note 7; see also Donna Ballman, Why Ballot Selfies Are A Terrible Idea For Workers, LEXIS NEXIs LEGAL NEWSROOM (Aug. 31. 2015, 11:33 AM), http://www.lexisnexis.com/legalnewsroom/labor-employment/b/la bor-employment-top-blogs/archive/2015/08/3 1/why-ballot-selfies-are-a-terrible -idea-for-workers.aspx. 14. Id. 15. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983) (quoting Police Department v. Mosley, 408 U.S. 92, 95 (1972)). 16. See, e.g., Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015) ("Gov- ernment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed."); see also Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *9 (D.N.H. Aug. 11, 2015) ("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 . 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 any- one."); Order Granting Preliminary Injunction, supra note 11, at 6 (holding that, because Indiana's ballot selfie prohibition "clearly defines the regulated expression according to its subject matter and its purpose, it is properly con- strued as being content based 'on its face.'").
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