The Volokh Conspiracy
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Right to Videorecord in Public Places Includes Right to Videorecord Voters at Dropboxes
An interesting echo, I think, of NAACP v. Claiborne Hardware (1982).
From Arizona Alliance for Retired Americans v. Clean Elections USA, decided today by Judge Michael T. Liburdi (D. Ariz.):
The contentious events surrounding the 2020 presidential election sparked an onslaught of speculation related to the validity and legitimacy of the electoral process. One such theory gained significant online prominence following the release of the 2000 Mules film. Primarily based on anonymized cellphone location data, the film tells the story of a shadowy network of "ballot mules" working to influence the 2020 election outcome by collecting fraudulent absentee ballots and strategically depositing them in early voting drop boxes throughout key electoral states. {In relation to this, Arizona law prohibits a person from collecting voted or unvoted early ballots from another person, with some exceptions. }
Inspired by the film, Ms. Jennings founded CEUSA and formulated a plan of action—#Dropboxinitiative2022—with the purpose of deterring so called "ballot mules" from using drop boxes. Using social media, Ms. Jennings encouraged supporters and affiliates to gather near drop boxes in groups of "[n]o less than 8 people" to track and deter these supposed "mules."
In the last several days, three separate Maricopa County voters filed formal complaints relating to voter intimidation near both early voter drop boxes. Both drop boxes are in parking lots and are positioned to allow voters to deposit ballots from their vehicles, drive-up style. The first complaint alleges that a group of individuals gathered near the Mesa, Arizona ballot drop box photographed and accused the voter and his wife of being mules. The voter further alleges that these individuals got in their vehicle and briefly followed him out of the parking lot to photograph his vehicle's license plate.
The second complaint reported that individuals took photographs of a voter and his vehicle's license plate while depositing mail-in ballots. The third complaint described a group of five or six men standing in the Mesa ballot drop box parking lot taking photographs of the voter's vehicle and license plate. In addition to these formal complaints, the Maricopa County Sheriff's Office was dispatched to the Mesa drop box location to investigate armed and masked observers wearing body armor. All the while, Ms. Jennings used her social media account to publicize the work of her volunteers and recruit others….
Section 11(b) of the Voting Rights Acts states that no person, "whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote." The text of Section 11(b) sweeps broadly. It is well established that this provision applies to private conduct and can be enforced through private litigation…. [T]he "or otherwise" language in the statute is indicative of Congressional intent to regulate both private and public conduct under Section 11(b).
Here, Plaintiffs contend that Defendants have violated Section 11(b) through acts of intimidation or attempted intimidation. Determining what constitutes intimidation is left to the courts, as that term is not defined in the statute…. [T]he dictionary definitions of "intimidate" and "threaten" are instructive. "Intimidate" means to "make timid or fearful" or "inspire or affect with fear," especially "to compel action or inaction (as by threats)." "Threaten" means to "utter threats against" or "promise punishment, reprisal, or other distress."
Importantly, any definition of intimidation must account for rights established in the Constitution. In Wohl, the court balanced these interests and held that "intimidation includes messages that a reasonable recipient, familiar with the context of the message, would interpret as a threat of injury—whether physical or nonviolent—intended to deter individuals from exercising their voting rights." "[A]ctions or communications that inspire fear of economic harm, legal repercussions, privacy violations, and even surveillance" can violate Section 11(b). So long as the allegedly threatening or intimidating conduct puts individuals "in fear of harassment and interference with their right to vote," the conduct is sufficient to support a Section 11(b) claim. The statute prohibits this level of activity regardless of whether defendants acted with the specific intent of intimidating or threatening voters.
Plaintiffs' primary aim, as the Court finds it, is to put an end to Defendants' drop-box surveillance activities…. [T]he protections of the First Amendment do "not end at the spoken or written word." Rather, constitutional protection also extends to expressive conduct. To merit First Amendment protection, conduct must be "inherently expressive." Crucially, however, expressive conduct need not convey a specific message. The critical question is whether a reasonable observer would interpret the conduct as conveying some sort of message
The evidence in the record shows that Defendants' objective is deterring supposed illegal voting and illegal ballot harvesting. Ms. Jennings' social media posts demonstrate that she believes the presence of her volunteers alone would convey messages to these supposed "ballot mules." The message is that persons who attempt to break Arizona's anti-ballot harvesting law will be exposed. On this record, therefore, the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit.
Additionally, it is well-established that there is a "First Amendment right to film matters of public interest." Fordyce v. City of Seattle (9th Cir. 1995). The Supreme Court has recognized a right to gather news. Branzburg v. Hayes (1972). And the public has a First Amendment right to "receive information and ideas." Richmond Newspapers v. Virginia (1980) (citation omitted); see also First Nat'l Bank of Boston v. Bellotti (1978) ("[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw."). This right to receive information exists regardless of that information's social worth. Stanley v. Georgia (1969).
Having established that the conduct at issue here is subject to the protections of the First Amendment, the Court must analyze whether any well-established exception applies. At the hearing, Plaintiffs argued that the true threats doctrine precludes First Amendment protection. Plaintiffs are correct. The First Amendment does not protect speech that constitutes "true threats." True threats are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," though the speaker "need not actually intend to carry out the threat." In determining whether speech is a true threat, the Court considers "the surrounding events and reaction of the listeners." Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric. Conversely, a statement that does not explicitly threaten violence may be a true threat where a speaker makes a statement against a known background of targeted violence.
Plaintiffs have not provided the Court with any evidence that Defendants' conduct constitutes a true threat. On this record, Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals. There is no evidence that Defendants have publicly posted any voter's names, home addresses, occupations, or other personal information. In fact, Jennings continuously states that her volunteers are to "follow laws" and that "[t]hose who choose to break the law will be seen as an infiltrator intent on causing [CEUSA] harm." Jennings' social media posts also admonish volunteers to remain outside the statutorily prescribed seventy-five-foot voting location radius. {Arizona law provides that "a person shall not be allowed to remain inside the seventy-five foot limit while the polls are open, except for the purpose of voting … and no electioneering may occur within the seventy-five foot limit."} Furthermore, the record contains evidence of Jennings' social media posts instructing her affiliates not to engage with or talk to individuals at the drop boxes. Even if these statements are mere window dressing, a reasonable listener could not interpret Ms. Jennings' social media pronouncements that alleged "mules" will "shrink back into the darkness" following her drop box initiative as true threats.
Also, Defendants' conduct does not fall into any traditionally recognized category of voter intimidation. Cf. U.S. v. Tan Duc Nguyen (9th Cir. 2012) (concluding that the wide distribution of a letter among Latino immigrants warning "that if they voted in the upcoming election their personal information would be collected" and could be provided to anti-immigration organizations constitutes sufficient evidence to find unlawful intimidation under California law); U.S. v. McLeod (5th Cir. 1967) (holding that a pattern of baseless arrests of Black individuals attending a voter-registration meeting was intimidating and coercive conduct given its "chilling effect" on voter registration); U.S. v. Bruce (5th Cir. 1965) (holding that a landowner's restriction of an insurance collector's access to the landowner's property due to the insurance collector's efforts to register voters constitutes unlawful intimidation); U.S. v. Beaty (6th Cir. 1961) (holding that the eviction of sharecroppers as punishment for voter registration constitutes unlawful intimidation). In Daschle v. Thune (D.S.D. 2004), for example, the court enjoined defendants from following Native American voters from the polling locations or copying any of the Native Americans' license plate information. The court in Thune justified its injunction because there was intimidation particularly targeted at Native Americans—reasoning that the public interest is served by having no minority denied an opportunity to vote. There is no evidence here that the voters using the outdoor drop boxes are primarily minorities or that they have historically been victims of targeted violence. Taken together, the Court cannot conclude that Defendants' conduct constitutes a true threat.
The Court has struggled to craft a meaningful form of injunctive relief that does not violate Defendants' First Amendment rights and those of the drop box observers. The Court acknowledges that Plaintiffs and many voters are legitimately alarmed by the observers filming at the County's early voting drop boxes. But on this record, Defendants' conduct does not establish a likelihood of success on the merits that justifies preliminary injunctive relief. Alternatively, while this case certainly presents serious questions, the Court cannot craft an injunction without violating the First Amendment.
The court also rejected a claim under the Ku Klux Klan Act, which makes it a crime to "conspire[] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a member of Congress …." The Act requires "proof that the purpose or intent of Defendants' conspiracy was to intimidate or threaten voters from engaging in lawful activity related to voting in federal elections," but the court concluded that "Plaintiffs have not provided the Court with evidence that Defendants intend to prevent lawful voting."
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Two thoughts of my own:
[1.] I'm surprised the court didn't talk more about the watchers' being armed. I appreciate that potentially raises Second Amendment questions as well, but it did seem to me a specific feature of the case that was worth discussing separately.
[2] As to the watching as such, this case reminds me of the question that arose in NAACP v. Claiborne Hardware (1982). There, the NAACP organized a black boycott of white-owned stores, and posted "store watchers" outside boycotted stores to take down the names of black shoppers; "the names of persons who violated the boycott were read at meetings of the Claiborne County NAACP and published in a mimeographed paper entitled the 'Black Times,'" and some of the blacks who weren't complying with he boycott were then violently attacked. Charles Evers, an NAACP official, also gave speeches that threatened both "social ostracism" of the noncomplying black residents, and also referred "to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night."
Nonetheless, the Court held that (1) the threat of social ostracism is constitutionally protected, even if "it may embarrass others or coerce them into action"; and that (2), in context, Evers' statements weren't sufficiently threatening of violence to be constitutionally unprotected. (I should say that I find this sort of monitoring either of ballot boxes or of stores to be potentially quite menacing; but the question is whether, despite that, such actions are constitutionally protected.)
Thanks to Prof. Rick Hasen (Election Law Blog) for the pointer.