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Are You Allowed to Vote While Wearing a 'Don't Tread on Me' T-Shirt? SCOTUS Will Soon Decide

The Supreme Court agrees to hear the First Amendment case Minnesota Voters Alliance v. Mansky.

Phil Roeder / Flickr.comPhil Roeder / Flickr.comDoes the Constitution permit state governments to create "speech-free zones" that ban political attire within 100 feet of a polling place on election day, even if that attire does not mention a candidate, a campaign, or even a political party? Or does the First Amendment protect the citizenry's right to wear such attire while casting a ballot?

The U.S. Supreme Court will tackle those questions later this term when it hears oral arguments in Minnesota Voters Alliance v. Mansky. The justices agreed to take up the case yesterday.

At issue is a Minnesota statute declaring that "a political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." The ban applies to all apparel "designed to influence and impact voting" or "promoting a group with recognizable political views."

Andrew Cilek, the executive director of the conservative group Minnesota Voters Alliance, ran afoul of the law in 2010 when he tried to vote wearing a t-shirt adorned with an image of the Gadsen Flag, the phrase "Don't Tread on Me," and a Tea Party Patriots logo. Cilek was also wearing a "Please I.D. Me" button from the conservative group Election Integrity Watch.

Cilek and the Minnesota Voters Alliance, represented by the lawyers at the Pacific Legal Foundation, are now asking the Supreme Court to strike down the Minnesota law. "This Court has never countenanced speech-free zones at polling places," they argue in their briefing. "Rather, it has held that bans on First Amendment activity are unconstitutional, regardless of the forum."

On the opposite side of the case is Joe Mansky, the elections manager for Ramsey County, Minnesota, along with several other state officials. They maintain that the law "is not overbroad but a reasonable and viewpoint neutral regulation of speech in the nonpublic forum of a polling place."

The Supreme Court's key precedent in this area of the law is a 1992 decision known as Burson v. Freeman, in which the Court upheld the constitutionality of a Tennessee statute that created "campaign-free zones" within 100 feet of polling places on election day. That law prohibited "campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position on a question."

Mansky and his fellow state officials insist that Burson clearly cuts in their favor. But there is an important difference between that precedent and the present case. Burson dealt only with campaign-related speech. The Minnesota law goes much further, encompassing the far wider category of political speech, including speech that makes no mention of any campaign, candidate, initiative, referendum, or party.

In other words, it's one thing to ban a "Vote for Bernie" shirt from the polling place; it's another thing to ban an "Occupy Wall Street" shirt.

And that is precisely what is at issue here. The same reasoning that would allow Minnesota to prohibit "Don't Tread on Me" shirts from polling places on election day would also allow the state to prohibit AFL-CIO buttons or NAACP hats, to name just a few of the sort of everyday items that Americans wear in order to express their political beliefs or identities.

In an amicus brief filed in support of the Minnesota Voters Alliance, the Cato Institute, Rutherford Institute, Individual Rights Foundation, and Reason Foundation (the nonprofit that publishes this website) argue that the law's extensive reach is a fatal flaw worthy of judicial rectification. "When a statute is written so generally that it could plausibly be enforced against vast swaths of speech," the brief notes, "this Court has applied the doctrine of overbreadth, invalidating the statute for placing too much discretion in the hands of government agents. Minnesota's law, which simply bans 'political' insignia, suffers from precisely this constitutional defect."

We'll find out later this term where the justices stand on the bedrock First Amendment questions raised by this case.

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  • Rebel Scum||

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  • Mitsima||

    An apple republic? So we're back to putting the blame on Eve and wymyn in general are we? You're such a misogynistic shitlord.

  • GeneralWeygand||

    "If this is a consulate caravan, where is the undersecretary?"

  • CE||

    "Don't Tread on Me" and the Gadsden Flag are not affiliated with any political party.
    The Tea Party Patriots badge is the issue, since it clearly backs Republicans.

  • Bubba Jones||

    What about in a Republican Primary?

  • Rich||

    Excellent.

    What about a "Fuck the Dems In The Ass" T-shirt in a Republican Primary?

  • Fist of Etiquette||

    They can still share polling places.

  • Rich||

    So, then just "Fuck 'em"?

  • Chipper Morning Truthjammer||

    I think there should be some sort of voting uniform that everyone is required to wear to the polling booth. Some sort of neutral but uplifting color, like, say, orange.

  • Half-Virtue, Half-Vice||

    Might as well be naked; first off it's safer and second it's what God intended.

  • Longtobefree||

    Which means it violates the Jefferson letter amendment to the constitution, by establishing a religion.
    (or two, or three)

  • Mitsima||

    I like, Worker's Gray; in overalls, for convenience's sake, of course.

  • Bob Meyer||

    "backs Republicans" like say, Mitt Romney and John McCain? Lisa Murkowski and Susan Collins? Dave Reichert and Peter King?

    How about wearing an ACLU button? Or and NRA pin? Would that get you banned too?

  • Rebel Scum||

    Does the Constitution permit state governments to create "speech-free zones" that ban political attire within 100 feet of a polling place on election day, even if that attire does not mention a candidate, a campaign, or even a political party?

    The federal Constitution and that of the Commonwealth of VA do not permit the government to regulate this. But, what do I know, I just read the words. "Congress shall make no law abridging the freedom of speech", "the General Assembly shall not pass any law abridging the freedom of speech..."

  • Longtobefree||

    "shall not be infringed" ?

    Good luck with this, the precedent for "common sense" regulation of the bill of rights is already set.

  • ALWAYS RIGHT||

    My prediction is that there will be a split decision by the Supreme Court. After a couple of hundred years, we don't know what the First Amendment means. The Constitution is an elaborate holy book that gives sanctity to the ruling class. The Constitution should have been burned a long time ago.

  • RabbitHead||

    This all started when they allowed printing it in the Vulgate.

  • Mitsima||

    Even here I'm not always sure of what is sarcasm and what is not.

  • I am the 0.000000013%||

    Good one!

  • Bubba Jones||

    It seems reasonable to ban political speech by the people working the polls.

    It seems reasonable to separate campaign workers/volunteers from the polling station.

    I think it's an interesting question of how to apply these policies to individuals standing in line. I would argue that you can't impede someone from voting, regardless of how they are dressed, even if they have a VOTE FOR BERNIE shirt on.

    But, what happens when someone wearing VOTE FOR BERNIE stands in line, while letting people move past them? Is the answer as simple as banning the names of political candidates? What about VOTE NO ON PROP 1?

    In civilized society, we would simply ask people to cast their votes and move along. Court cases are never about those people...

  • loveconstitution1789||

    How about a T-shirt that says "I love voting" in Russian?

  • ||

    *Picture of a snake*
    "Don't Tread On Me!" - PETA

  • Hugh Akston||

  • Chipper Morning Truthjammer||

    "I am tired of all these motherfuckin' snakes on all these motherfuckin' flags!"

  • loveconstitution1789||

    Where do you stand with snakes on planes?

  • Bob Meyer||

    You have to stand near the exits. If you sit the snakes will bite you in the ass.

  • loveconstitution1789||

    You know what are some good T-shirt slogans that should be banned?

  • Rich||

    "Kiss Me, I'm Irish"?

  • ||

    Are Che Guevara t-shirts banned?

    What if the shirt said, "From each according to his ability, to each according to his need."?

  • Chipper Morning Truthjammer||

    That just sounds like it is promoting rape.

  • lap83||

    "I'm with Hitler"?

  • Marcus Aurelius||

    Make America Gag Again

  • Curt||

    "I'm with John Holmes"

  • Mongo||

    A t-shirt with an arrow pointing downward that sez ' I CUT OFF STUPID.'

  • loveconstitution1789||

    And the adjoining T-shirt that sez "I had my vagina folded out into STUPID".

  • BYODB||

    "I can be stopped from voting by the fashion police, but I still don't need an ID to vote!"

  • sarcasmic||

    Because people are going to decide their vote based upon the shirt that the guy in front of them is wearing.

  • Bob Meyer||

    Yes, that's why the Russians are buying up T-shirt companies.

  • Liberty Lover||

    More Russian meddling in our elections? It must be Russian trolls wearing t-shirts to vote!

  • Billy Bones||

    Oh yes, I love the "No campaigning within 100 feet" rule. So instead we get a wall of campaign yard signs, etc exactly 100 feet 1 inch from polling place so thick that you can't even reach the polling place. I exaggerate for effect, but what in the flip is the difference if I encounter campaigners 10 feet away or 100?

  • Rich||

    Well, what in the flip is the difference if you "encounter campaigners" of age 14 or 18?

  • Marcus Aurelius||

    Giggity

  • Mitsima||

    Ask Moore

  • Bubba Jones||

    Well, circumference is proportional to the square of the radius, so at 10' the wall would be 100x as thick?

  • Bubba Jones||

    fck me. pi x d. So 10x as thick.

  • Marcus Aurelius||

    10x as thick was crusty's nickname in college

  • I am the 0.000000013%||

    Thick crust is my favorite

  • Rich||

    Obviously the solution is ban clothing at polling places (and in airplanes).

  • Chipper Morning Truthjammer||

    The people you would want to see naked don't vote. I think this says a lot about why our country is so fucked up.

  • Longtobefree||

    I have always held that the TSA end game is to strip everyone naked and handcuff them to their seat.

  • Bubba Jones||

    Clothed people are by definition sinners.

  • EscherEnigma||

    Then we should probably move election day to a more temperate month.

  • Longtobefree||

    So was the tea party button Republican or Libertarian, or Democratic?

    The Gadsen flag is mostly historic; can you vote if you are wearing a full (replica) American Revolutionary War Uniform?
    How about a full (replica) British Army Uniform?
    How about a current military service uniform by an active duty member voting?
    What if you are wearing judge's robes?
    What if you are naked? (just to avoid any political clothing, or course)

  • Curt||

    What if you're wearing an NFL jersey? Should we define certain player's jerseys (Kaepernik, Pat Tillman, Alejandro Villanueva) as implicitly political speech?

  • Diane Reynolds (Paul.)||

    even if that attire does not mention a candidate, a campaign, or even a political party?

    "I'm Voting for Her"

  • Longtobefree||

    Oh, that's different! She is OK.

  • Marcus Aurelius||

    Wood not.

  • Fist of Etiquette||

    VOTE OR DIE!

  • Zeb||

    They should also ban shirts with nothing on them at all. Because sometimes making no statement makes the most powerful statement of all.

  • BYODB||

    Amusingly, this would appear to be more limiting than a requirement to show ID when voting.

  • GroundTruth||

    If the Gadsden flag is prohibited, how about other historic but then-standard American flags? Which ones, and why?

  • BestUsedCarSales||

    It's interesting that the Gadsen Flag has become so focused on in the last few years. That one Gillespie spite ad where the truck runs down brown children even had a Gadsen Flag license plate.

  • Bob Meyer||

    I always want to see that ad end with the driver catching up to the kids and saying "This baseball fell out of your glove and I've been trying to return it for the last three blocks".

  • ||

    "I guess now you got a team together you guys can all play America's favorite pastime together. Anyway, have fun, don't make finger guns at the cops, and remember to vote third party!"

  • Mickey Rat||

    So no one wearing a union local shirt or hat can vote under this law, right?

  • DaveSs||

    Last year I wore a hat with Molon Labe all over it when I went to the polls.

    I actually didn't even think about it being a political statement.

    Presumably almost no one knows what it means because in the year that I've been wearing it, only two people have said anything about knowing what it meant (they approved of it of course). A handful of other people have asked if I went to Michigan State or some other school that uses a trojan logo.

  • Longtobefree||

    The beer?

  • DaveSs||

    No

    But they can't have the beer either

  • Quo Usque Tandem||

    When I went to Europe this past August I put a Bonnie Blue Flag patch on my backpack, just for the hell of it. Passed through a couple of major US airports and landed in CDG. If anyone knew what it was they didn't say.

  • MayneDeWayne||

    On the opposite side of the case is Joe Mansky, the elections manager for Ramsey County, Minnesota, along with several other state officials. They maintain that the law "is not overbroad but a reasonable and viewpoint neutral regulation of speech in the nonpublic forum of a polling place."

    So the polling place is considered a nonpublic forum? I've always thought of it as the voting public, but as long as we're redefining everything, let's go ahead and say the bill of rights doesn't exist either. That's what they really want to say.

  • Arcxjo||

    If I ran for office on the platform of abolishing the Stars and Stripes and replacing it with a Jolly Roger, would that make everyone who gets a sticker after they vote a criminal here?

  • Cloudbuster||

    They maintain that the law "is not overbroad but a reasonable and viewpoint neutral regulation of speech in the nonpublic forum of a polling place."

    Yeah, I remember that part of the first amendment that lists the exception for "reasonable and viewpoint neutral regulation of speech."

    Oh, wait....

  • Cloudbuster||

    Oh, and forgot to even mention "nonpublic forum of a polling place."

    Is there anywhere in the nation more of a public forum than a polling place?

    Yes, your vote is secret, but the polling place itself is the epitome of public places.

  • ||

    The perversion of the english language is one of the scariest things in our political discourse today. "Non-public polling place" or "alternative facts" or "depends what the meaning of 'is' is" or "Affordable Care Act." It is Orwellian and cannot lead anywhere good.

  • Leo Kovalensky||

    There are, of course, non-public polling places. I used to vote in a church (as an example). Would it be a violation of your free speech if a church wouldn't allow you to vote if you had a "f**k baby jesus" shirt on? What about the property rights of the church? Do they cede those once they are established by the state as a polling place.

  • Cloudbuster||

    What about the property rights of the church? Do they cede those once they are established by the state as a polling place.

    I would say yes, they cede their property rights on election day. If they don't like it they don't have to be a polling place. Our polling place is a little "township building" that exists pretty much for the some purposes of voting and meetings of the township trustees.

  • Cloudbuster||

    What about the property rights of the church? Do they cede those once they are established by the state as a polling place.

    I would say yes, they cede their property rights on election day. If they don't like it they don't have to be a polling place. Our polling place is a little "township building" that exists pretty much for the some purposes of voting and meetings of the township trustees.

  • Cloudbuster||

    "Some" was supposed to be "sole." GD autocorrect.

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