Free Speech

Arizona Voters Can Wear Their Politics On Their Sleeves (Or Anywhere Else)

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I expressed my First Amendment rights, and all I got was this lousy T-shirt.

Diane Wickberg was ordered to change or cover her clothes on two different election days in Flagstaff, Arizona. That's because she was wearing T-shirts with Tea Party logos on them — a violation of rules against "electioneering," or so she was told. Now, after a lawsuit, a court victory, new legislation and tens of thousands of dollars in tax-funded legal costs, electon officials in Arizona will (mostly) be looking the other way when voters wear ideologically charged garb to the polls.

Arizona law (PDF) makes "electioneering" within 75 feet of a polling place a class two misdemeanor, and defines the practice as:

[A] demonstration of express support for or opposition to a candidate who appears on the ballot in that election, a ballot question that appears on the ballot in that election or a political party with one or more candidates who appear on the ballot in that election, and includes any use of a candidate's or political party's name or a ballot measure's name or numeric designation and any verbal expressions of opposition or support.

Why electioneering should be such a terrible thing is open to question, but apparently election-season expressions of free speech become magically toxic in proximity to churches and community centers where old people still go to vote rather than leaving their mail-in ballots forgotten at the bottom of the to-do basket like the rest of us. But exactly where OK speech ends and nasty electioneering begins can be a bit fuzzy.

Illustrating the problem with the ban on "electioneering" clothing, the Arizona Daily Sun quoted Coconino County Recorder Candace Owens on her "I'll know it when I see it" guidelines for forbidden items:

Owen said she'd consider apparel on a case-by-case basis. Although she said the Sierra Club, for example, doesn't exist primarily for political organization, she'd keep an eye out for such shirts if the environmental group came out in support of a ballot initiative.

Similar "it depends" guidance on political T-shirts came from the Secretary of State's office, which opined that, while "the shirt did not attempt to persuade or influence voters to vote for or against a particular candidate, party or proposition in the election," it could still be banned in certain circumstances, such as "[i]f a candidate posts political signs or issues direct mail pieces that read 'tea party candidate,' then wearing a shirt to the polls that says 'tea party' could be construed to be advocacy in support of or opposition to a candidate."

The Daily Sun offered that expressive T-shirts were just the final straw for an overstimulated population, since "[v]oters nowadays already arrive at the polls frazzled by an endless barrage of robocalls, sound-bite TV ads and mailers that usually fail a fact-check somewhere by the second sentence." In keeping with its long tradition of moderation, interpreted as a carefully considered distillation of the most intrusive of all possible solutions, the paper editorialized: "So here's our simple, nonpartisan proposal: Rewrite the law to expand the ban on 'electioneering' to include "all lettering, logos and symbols."

Fortunately, the federal courts headed off the editorial board's preferrence for forcing the population of Flagstaff to claw through its closets on Election Day in search of items of clothing not bedecked with Patagonia or Pearl Izumi logos. After the Goldwater Institute intervened on behalf of Wickberg and Scott Reed, who had a similar complain in Maricopa County, a federal court ruled that political T-shirts are just fine — so long as they don't explicitly mention candidates, political parties or ballot issues. Coconino County promptly forked over $46,000 to settle the case.

And the Arizona legislature recently took the time to pass HB 2722, explicitly legalizing what the federal court already said was permitted by the First Amendment, conveniently scheduled to take effect before the August 28 primary.

Such is the long and winding road followed to make sure that you can wear a T-shirt with a political logo on it to a polling place. And don't you feel freer for it?

Update: Don't miss Brian Doherty's coverage of this case. And Flagstaff was at the center of an earlier T-shirt/free speech flap, involving shirts bearing the names of those killed in battle.