The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Many states ban overt electioneering near polling places, including on public sidewalks, where speech is generally broadly protected. In Burson v. Freeman (1992), the Supreme Court upheld those restrictions. The four-justice plurality concluded that they were narrowly tailored to a compelling government interest in "preventing voter intimidation and election fraud." (Among other reasons, the justices noted that specific bans targeted at voter intimidation and election fraud, rather than at electioneering generally, would be ineffective because "law enforcement officers generally are barred from the vicinity of the polls to avoid any appearance of coercion in the electoral process," so that "many acts of interference would go undetected.") Justice Scalia's concurrence concluded that the long tradition of banning electioneering outside polling places made the sidewalks into "nonpublic fora," in which otherwise protected speech could be restricted.
Minnesota and some other states, though, also add restrictions that are narrower in some ways but broader in others—they limit speech within polling places (not on sidewalks outside them) but go beyond overt electioneering, also covering other political advocacy. Minnesota, for instance, forbids people from wearing insignia (including slogans on clothing) that contains "issue oriented material designed to influence or impact voting" (such as "'Please I.D. Me' buttons") and "material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on)." Is this constitutional? The Supreme Court will decided that in Minnesota Voters Aliance v. Mansky, which it just agreed to hear Monday. Let me offer a few thoughts about the case.
1. Polling places are essentially government-controlled property (even if the government has just borrowed it for the day). And when it comes to the government's power as landlord, the court has split property into five "forum" categories:
- The traditional public forum: "government property that has traditionally been available for public expression"—sidewalks, parks and the like. Here, the test is the same as when the government restricts speech on private property: content-based restrictions are generally forbidden unless they fall within existing First Amendment exceptions (such as for libel or true threats or obscenity), or are narrowly tailored to a compelling government interest. The government has no extra authority to restrict content stemming from its ownership of the traditional public forum property.
- The designated public forum: "government property … intentionally opened up for [the] purpose" of being a forum for the public at large to speak freely. Speech restrictions in such a forum "are subject to the same strict scrutiny as restrictions in a traditional public forum," but the government may close the forum if it wishes. There isn't a lot of property like this, but open spaces at public universities that have been opened to all comers might qualify. The mail isn't formally labeled designated public fora, but it has generally been treated this way.
- The limited public forum: government property intentionally opened up for speech, but only "by certain groups" or for "the discussion of certain subjects." Here, "a governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral." "Reasonable" here means "consistent with the [government's] legitimate interest in preserv[ing] the property" "for the use to which it is lawfully dedicated."
- Nonpublic forum: all other government-owned property that's generally open to a defined group of people, but not for the purpose of promoting private speech (but instead just for the purpose of, say, flying from one city to another). Here the rule appears to be the same as for the limited public forum—the restriction must be reasonable and viewpoint-neutral, but more restrictions are seen as reasonable precisely because the property isn't dedicated to speech purposes.
- Not a forum at all—place for government speech: government property or a government funding program that the government uses to speak (through its employees or other agents). An example might be a government-owned television channel, or perhaps an announcement board in a government building. Here, the government acting as speaker generally may decide what speech to allow, even based on viewpoint.
It seems very likely that the court will view polling places as nonpublic fora: The government hasn't opened them for speaking. People who visit for other purposes may incidentally speak, whether in conversations when standing in line, or in writing or symbols on their clothing. But the government need not allow freewheeling political expression there, and any restrictions are constitutional so long as they are reasonable and viewpoint-neutral.
2. Now the reasonableness requirement isn't entirely deferential to the government. One famous example is Board of Airport Comm'rs of L.A. v. Jews for Jesus, Inc. (1987), where the L.A. airport authority banned all "First Amendment activities" in the airport, as a means of restricting charitable fundraisers and others. The court didn't view the airport as a traditional, designated, or limited public forum; indeed, five years later the court expressly held that government-owned airports are nonpublic fora. But the court held that the restriction was still unconstitutional:
- On its face, the restriction was unreasonably broad, because it "prohibits even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some 'First Amendment activit[y].' We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech."
- The city tried to avoid this by interpreting it as covering "only expressive activity unrelated to airport-related purposes," and that "read[ing] a newspaper or convers[ing] with a neighbor at LAX" is "permitted 'airport-related' activity because reading or conversing permits the traveling public to 'pass the time.'" But such a dividing line, the court held, was unacceptably vague and thus risked viewpoint discrimination: "The result of this vague limiting construction would be to give LAX officials alone the power to decide in the first instance whether a given activity is airport related. Such a law that 'confers on police a virtually unrestrained power to arrest and charge persons with a violation' of the resolution is unconstitutional because 'the opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.'"
3. One key question in the case, then, is whether the prohibition is unreasonable—whether it is much broader than what is needed to serve the government's interests in "'maintain[ing] peace, order and decorum' in the polling place." On one hand, the restriction is limited just to speech (including passive speech, such as displays on clothing) "designed to influence or impact voting" or "promoting a group with recognizable political views"; this isn't a ban on all "First Amendment activities," or even all speech about politics. On the other, merely passive display of ideological views on shirts, pins and the like is commonplace in American life, and very rarely interferes with "peace, order and decorum." Whatever problems might be posed by groups of campaign workers electioneering outside the polling place (and certainly in the polling place), I doubt that voters merely wearing T-shirts while standing in line would cause any undue commotion, much less intimidation or fraud.
4. Another question is whether the policy, though facially viewpoint-neutral, will be so vague that it is likely to be implemented in discriminatory ways. As the challengers' petition argued, the law "often requires election officials to rely on their own subjective judgments about whether certain apparel falls within the ambit of the law's ban on 'political' speech." Which groups have "recognizable political views"? Which "issue oriented" messages are "designed to influence or impact voting"? What about religious insignia in elections where some religious group is closely associated with a particular position on a particular ballot measure? What about rainbow insignia, when a gay rights measure is on the ballot? Clothing that's used as a symbol of racial or ethnic identity, when an election campaign has had a prominent racial or ethnic dimension? Once the law goes beyond express advocacy (itself not the sharpest of lines) and covers mention of groups with "recognizable political views" or "issue oriented" messages, the lines get murkier still.
I hesitate to predict the outcome here (and in any case, my soothsaying powers have proved quite inadequate in the past); but I hope this lays out the main issues. The Republic, to be sure, won't stand or fall based on the Supreme Court's decision here; but it's an interesting case, and I look forward to reading the justices' views on it.