Court Blocked Videorecording of Voters (Among Other Behavior)

From Judge Terrence Berg's opinion on Election Day in ACLU of Mich. v. Does 1-6:

The ACLU asserts that Defendants are actively engaged in activities to threaten, intimidate, harass, and deter voters from participating in the 2024 election. The ACLU submitted four affidavits from Michigan residents in support….

Raimi served as a poll watcher on Election Day in four different locations. At the polling location in Derby Middle School, Birmingham, Raimi saw three men with cameras who had been filming people going into and out of the polling station. One of them was wearing a baseball cap that said "DON'T ANNOY ME, I'M AN ASSHOLE. MY RIGHTS DON'T STOP WHERE YOUR FEELINGS START." The other two were described as wearing "patriotic" shirts. Raimi told them they could not film people coming in and out of a polling location, but they responded that it was their First Amendment right to film.

Other people passing out flyers near the polling station told Raimi that the three men had blocked a family from leaving the polling station, despite the family asking them not to record them. At the polling station at Oakland Schools Technical Campus Southeast, in Royal Oak, Michigan, Raimi saw one of the same three men who had been filming. The man was now wearing a gaiter that covered his nose and mouth and was accompanied by three other individuals who appeared intimidating to Raimi. Raimi indicated the individuals had cameras and were filming the polling location.

The precinct supervisor instructed the men not to film but they once again stated that it was their First Amendment right to record. Raimi told them not to film as well but was met with the same response. The police arrived, and the individuals left 10 to 15 minutes later, though two of them continued filming the movements of the police as they departed. Raimi believes the individuals were part of an organized effort to invite negative responses or anger from poll workers and voters and to capture these responses on video. …

Ago averred that she also went to vote at the Oakland Schools Technical Campus in Royal Oak, Michigan, around 2:00 p.m. on November 5, 2024. When she arrived, she saw two men and one woman recording voters using their phones. The men wore masks covering their faces from the nose down. Ago averred that she heard poll workers tell the individuals in question to leave. The individuals responded that they were permitted to film because they were part of the "media." Ago heard a poll worker call the police.

As Ago went to vote, one of the masked men approached her and stood four or five feet away, filming. A poll worker told the masked man to back away, as did Ago, but the man refused. Ago said that she had a right to privacy while she voted, but the man responded: "You don't have a right to privacy while you're voting, I'm not moving."

Ago stepped out into the hallway because she was intimidated. The masked man stepped into the hallway, and Ago went back inside the polling area and voted. Ago left, and told a police officer about what happened to her. Ago reported that she drove by the polling place one hour later, and saw that while police cars were outside the building, the three people who had been filming her and the other voters were still standing outside of the polling place….

Feldberg averred that she voted at the First Presbyterian Church in Birmingham, Michigan, on November 5, 2024, around 1:00 p.m. Feldberg averred that at around 1:10 p.m., five white men and one white woman arrived in the hallway outside the polling room. One man wore an American flag bandanna over his face, while the others did not have their faces covered. Feldberg averred that one man had a short beard and a black shirt, another wore a green shirt and had a grey beard, and another wore an orange vest and had a short beard. Feldman averred that the men and the woman had phones with cameras which were recording video, and that the men and the women used "selfie sticks" to insert their phones into the polling room. One of the people stepped into the polling room, but only by around a foot. All "linger[ed] as a group" in the entryway to the polling room, and were loud and made noise.

Feldberg averred that because the group was blocking the door, voters had to "almost push past" the group to get into the polling room. Feldberg voted, then left the polling room. One of the men in the group then followed Feldberg into the hallway. Feldberg told the man, "[t]his is why we vote." The man then put his phone a foot away from Feldberg's face, prompting Feldberg to tell him that he did not have her permission to film her. The man responded: "Your request has been denied." The woman in the group chimed in: "Oh, look at the reaction on her." Feldberg averred that she went back into the polling room to be with her daughter. Meanwhile, the group of people continued to film voters. Voters asked why the group of people were there.

Feldberg told a poll worker that she was not comfortable walking to her car. The poll worker responded by saying they had called the police, and asked if Feldberg wanted someone to walk her out. Feldberg agreed, and had a poll worker walk her out using a different exit. As Feldberg got to her car, Feldberg saw the group of people following another voter to his car, and saw that they were filming Feldberg as well.

Feldberg averred that after this experience, she reported these events at a police station. Feldberg averred that the police told her that the group of people had not done anything illegal, and that there was not anything that the police could do "because it was free speech in a public place."…

Executive Director of the ACLU[] Khogali asserted that the ACLU has been informed by two witnesses, including one voter and one poll worker, that a group of 6 individuals have been visiting multiple polling locations in Oakland County, entering buildings where polling was going on, and filming voters coming and going against their will, including following voters to their cars while filming them, while refusing to stop filming when asked. Some voters have been sufficiently intimidated that they have sought to escape the polling station through alternate paths. The ACLU has had to divert resources to respond to and document voter intimidation that took place in Oakland County thereby reducing the amount of volunteers and financial resources the ACLU could use towards core Election Day services for voters….

The court didn't offer much detailed analysis (possibly because this case was being decided in the span of hours), but here's what it concluded:

Defendants are ordered to cease the harassment or intimidation of voters at or outside of the polls during the November 2024 Election—including filming voters coming and going from the polls, coming within 100 feet of the entrance to any polling station or necessary points of ingress or egress from a polling station, following individuals to or from their cars to the polls, or any other form of menacing or intimation of violence while wearing a mask or otherwise….

No papers were filed by the defendants, and I'm not sure whether they even received prior notice that would allow them to file papers or present their positions. (You can see the ACLU's legal argument here.) The court scheduled a preliminary injunction hearing, but it was then canceled because the ACLU dismissed the case the day after election day; of course, once the election was over, there was little left to be done.

Note that lower courts have generally concluded that the First Amendment includes a right to videorecord in public places, at least when the recording is of public officials (such as police officers). The logic of those cases suggests that this right to gather information would include the right to videorecord even private citizens in public places; but that question remains unsettled, as does the question of whether such recording can be limited in particular contexts, or places.

Finally, note that the Court has upheld laws that limit electioneering within 100 feet of polling places, and Michigan does have such a law; but the injunction here seems to limit "filming voters coming and going from the polls" even when the filming is done from outside the 100-foot bubble zone.

Comments

[JesusHadBlondeHairBlueEyes]

Someone should sue the Democrat cheaters in Arizona who are brazenly stealing the Senate.

[Lennyk78]

The fact that it's taking a week to count is proof positive that they're creating fake votes.

[Seamus]

But "they" seem to have allowed Trump to win the state's electoral votes.

[Riva]

Nevada beat them to it. And PA says hold my beer.

[Armchair]

Seems odd…

Let’s start with the following.

1. I believe there is a right to film in public spaces, in regards to voters entering and exiting the polling location.

2. There is a question in Michigan law about wearing a mask to hide one’s identity, which may be illegal. It’s a grey area.

3. Filming a person actually voting (ie, in such a way that may capture their vote) is illegal.

4. Harassment of voters is illegal. However, simply filming a voter going to and coming from a polling place is difficult to construe as harassment in this context.

[Riva]

Uh huh. Baseball caps allegedly intimidating voters. Now, if one is looking for real intimidation, look at Democrats and Philly in 2008 with some radical Dem oriented militia standing outside polling stations. Not sure if they were holding baseball bats or batons, but definitely would have done more damage to someone than a baseball cap.

[tkamenick]

This is what I was thinking, too. Filming outside the polling location should be absolutely fine, provided you aren't obstructing anybody (which it sounds like these assholes were doing). The fact that you voted is public record.

[Malika the Maiz]

Think about the mindset of an adult who would choose to wear this: "DON'T ANNOY ME, I'M AN ASSHOLE. MY RIGHTS DON'T STOP WHERE YOUR FEELINGS START."

[Stephen Lathrop]

The guy is simply an asshole. Feelings have nothing to do with it. He has no legitimate right to interfere with exercise of sovereign power, which is what voting is.

[y81]

This is backwards. The right to film private events may well be limited (or even non-existent), but the First Amendment strongly protects the right to film "sovereign" or governmental activities.
For example, making arrests is an exercise of sovereign power, in spades, but the First Amendment protects the right to film it.

[Stephen Lathrop]

y81 — A right to film private events in public spaces is actually strongly protected.

But like many others, you are confused about sovereign power. A police officer making an arrest wields government power, not sovereign power.

An arrest is not a punishment. It is government exercise of the government's constitutionally delegated police power.

The power to punish is the sovereign power. That is why in wise jurisdictions felony charges are titled, "The People vs etc.," and not, "The prosecutor vs, etc."

Note that the federal government controls or prohibits filming court proceedings. Where filming is permitted, some identifiable participants in a trial, including members of the jury, may be put off limits for their protection. That strikes me as on point with regard to the voting case in question—it is an example of a personal right limited in deference to the sovereign power being exercised.

But note also, judges and justices acting in their capacities as magistrates, cannot thereby claim to wield sovereign power personally. They remain at all times oath-sworn government officers, constrained by the Constitution, and by the terms of their oaths. The sovereign to which the judges and justices owe loyalty is the joint popular sovereign which authored the Constitution, but which cannot be constrained by it.

[Rossami]

That mindset seem to me to be a person so tired of getting irrationally yelled at that he decided to yell back. While it's not an approach I would choose, it is one I can empathize with. Regardless, the legal point is that there is no legitimate basis for considering that in an allegation of harassment. As Armchair says above, the filming may or may not have been illegal dependnig on specifics that are not clear from the allegations above but messages on clothing neither added to nor detracted from those behaviors.

[Satchmo_Lives]

Imagine the size of his head to put a hat sufficiently large enough to display a font that can be read.

[Daddyhill]

In our current political climate filming private persons entering or leaving a polling place would alarm almost anyone. Voting is our quintessential civic ritual, and it's own essence is the secret ballot. Our privacy within the voting booth is protected unconditionally. We cannot be compelled to vote at all or to vote for X or Y. The fact of my voting is a matter of public record, but I cannot be compelled to disclose how I voted. Anyone who seeks to interfere unlawfully with the performance of our ritual is culpable by statute and by the Constitution itself.

Nowadays bona fide journalists don't show up in important places without big cameras and microphones. Legitimate exit poll workers must ask for and receive permission from exiting voters before interviewing them. Journalists can be intrusive and impolite, but in general they don't seek to be anonymous (showing Project Veritas to be the loathsome rarity it is), nor do they encroach upon the boundaries of a protected place in which citizens have an absolute right to privacy on Election Day.

If these so-called poll watchers truly believed in the correctness of their behavior, then why the masks? If you're a patriot protecting your country, wouldn't you be proud to show your face? And again, if you're a patriot who loves your country, then why do you shit on it's most important principle, the vote? You do know that when your video starts showing up on social media, the folks who caught the kitten killer will be tracking you down too? And they won't care about your privacy any more than you care about theirs.

[Stupid Government Tricks]

No such thing as "bona fide journalists" identified by their equipment.

[mulched]

It's easy enough to tell the difference between the Channel 7 news guy and his producer doing a local interest story in election day versus these assholes.

[Rossami]

You contradict yourself when you say that "The fact of my voting is a matter of public record" but then rant against the filming of merely entering or leaving a polling place. The fact of entering or leaving is evidence that you voted, not any kind of evidence about who you voted for while you were there.

[Stupid Government Tricks]

One good response would be to return the favor. Stand in front of them recording them with your own cell phone. As they move around to record what's behind you, you move to continue blocking their view. It would be especially fun if several other voters joined in.

Depending on police or other government bureaucrats is not always the best solution.

[Stephen Lathrop]

Another instance among so many where a focus on rights muddles the arguments. The folks recording the voters are protected by Constitutional rights. Those are unavailing against sovereign power, which is exercised at pleasure and without constraint, including constraint by the Constitution.

A citizen engaged in the process of voting is not exercising a right. The citizen thus occupied enjoys the unlimited, ungovernable, unappealable power of a member of the joint popular sovereignty. To protect that power is the first duty of every sworn law enforcement officer in the land.

The judge got it right. Someone ought to explain it to the cops. Maybe to EV, too.

[Absaroka]

Another example to prove your point: a KKK mob is dragging a kid accused of ogling a white woman out of jail for a lynching. The kid is protected by constitutional rights. Those are unavailing against sovereign power, which is exercised at pleasure and without constraint, including constraint by the Constitution.

A citizen engaged in the process of lynching is not exercising a right. The citizen thus occupied enjoys the unlimited, ungovernable, unappealable power of a member of the joint popular sovereignty. To protect that power is the first duty of every sworn law enforcement officer in the land.

(the facts in the case at hand may well rise to the level of harassment, but your argument is ridiculous)

[Stephen Lathrop]

Absaroka — Your example is ridiculous, stupid, and offensive. What legitimate claim to sovereign power does a lynch mob enjoy?

Under American constitutionalism, citizens in the act of voting exercise the defining power of joint popular sovereignty—the power to constitute government.

What possible motive goaded you to such a senseless remark?

More generally, the notion of a Constitution which is actually sovereign in itself, instead of a decree made by a sovereign which wields power greater than government's, and unconstrained by government, is how you get to decapitated constitutionalism. From that error come the contradictions, Constitutional misreadings, and paradoxes, which frustrate and vex would-be interpreters of a document framed in expectation—and specifying literally—that such a sovereign existed, and would continue to be active.

Not least of the troubles that misreading creates is the problem of how to vindicate personal rights. Absent a sovereign wielding unappealable power greater than government's, on what power can an ordinary person rely to counter government abuse of personal rights? On government power? It is government doing the abuse.

[Lennyk78]

I really am having a hard time seeing how filming someone from 105 feet away entering a polling site is something that can be legally prohibited.

[santamonica811]

Len,
I think your point is certainly correct. What are you thoughts about the facts in this particular case? For example:

a. Have to almost push past them to get to the voting place.
b. Followed to the voter's car, after a person has finished voting.
c. Stuck camera phone about 1 foot from a voter's face.

Assuming that these allegations are truthful (and a court probably would, given that the photographers didn't/couldn't file any opposition); do you think that A, B, and C were likely done from more than 100 feet? That seems implausible to me.

[NvEric]

Another episode of pushing the boundaries past common sense and common decency. Interfering with voters has no place and is illegal.

Recording the public on a durable medium must have a purpose to be valid. Rights of anonymity hold truer than transgressions otherwise. Pushing back on this surveillance era must continue. Being in public does not mean being exposed to any and all sorts of intrusions.

Only when all are naked is there truth, contentment, and peace.

[Social Justice is neither]

Funny how you leftists were all for the Black Panthers intimidating white voters with truncheons in Philly but video is a bridge too far.

[Davy C]

I am going to assume without checking that there are many polling places with cameras at the entrances. You don't have a right to cast your vote anonymously; they literally have a list of who voted and it's not something they keep confidential.

Of course these guys went way past passively videotaping people coming and going. Entering the polling place itself and trying to record votes, blocking the entrance, and following people back to cars is not acceptable.

[Drewski]

Eh, polling places already sit in a special status against 1A. For example, there are restrictions on dress, signage, advertising, and literal speech. I see no reason why restrictions on filming and photography would violate 1A, nor why decisions upholding such would be suspect.

[Absaroka]

I concur, especially with this set of facts. Maybe after a couple more cups of coffee I could build a hypo where I'd support the filmers, but this isn't that set of facts.

[Stephen Lathrop]

Absaroka — Don't worry so much. You love your hypos because they help you substitute superficially similar-looking facts for those which actually apply to whatever case is under consideration. If you had to stick to the cases and controversies themselves, and leave approximate analogies aside, what would be left of your commentary?

[jimc5499]

Are there any restrictions in place? If not this is a moot point. I'm attending a class at a local university. There was a political rally about a month ago. We received an e-mail informing us that attending that rally was not an excuse for missing class. I didn't have class and was off from work that day so I attended. A few days later I received another e-mail informing me that I was seen at the rally and that my instructors would be notified. Two weeks later Harris had a rally and there was an e-mail stating that there would be busses available for those who wished to attend. I DO NOT believe that the University was behind this. It was probably a Student Group that is supported by the University through funds obtained from Student Activity Fees. Is this considered "voter intimidation"?

[Davy C]

"Probably" a student group? Well, who sent the emails?

[Ghost of Patrick Henry]

No mention of the most disturbing issue here. The use of a TRO to ex parte issue an injunction which almost certainly violates the 1st Amendment AND then dismissing the case before the Defendants can even appear, much less appeal. NO hearing, NO cross examination. The Rules of Civil Procedure cannot be allowed to permit this.

[Davy C]

Well... Let's say a public park has a regulation that you have to be out by 11 pm. A perfectly fine time/place/manner restriction. You're out there filming for whatever reason. The cops come and tell you to leave because it's after 9 pm. Even though a 9 pm park closing time would be constitutional, this is unconstitutional. They cannot simply change the rules on the fly because they don't like what you're doing.

[DaveM]

This seems like an extreme edge case of election day weirdness. As a veteran poll worker, you get used to the fact that elections are live events and Stuff Happens. If there really is a 100-foot buffer zone around the polling places there, be grateful. In Virginia, our buffer zone only goes out 40 feet. (Which is plenty, frankly).

I’m a lot more concerned about the royal mess created by mail-in voting. I think I’m ready to write that book, “101 Reasons Why Mail-In Voting Has To Die”. In Georgia, 3,000 voters have been disenfranchised because they overwhelmed the registrar with late-breaking absentee mail-in applications. Even though the registrar sent them the ballots using express delivery (presumably NOT the USPS, and likely at a very steep cost), the ACLU is in court arguing that they didn’t have enough time to return those ballots before the cut-off date.

No kidding, Sherlock. There are at least 25 steps involved in applying for, receiving, returning, and finally counting a mail-in ballot. Twice in that round trip, the ballot sits completely unsecured, in the open, for potentially days at a time. Complete loss of a chain of custody — twice.

Grr.

[Dan Schiavetta]

1) Kamala Harris seizes on this and claims the election was "intimidated", says there are thousands of people willing to sign affidavits that they were threatened by armed onlookers, would have changed the result in certain swing states.

2) Half the country believes her claims, which are repeated endlessly on the country's most-watched media sources.

3) Dozens of lawsuits brought by attorneys who will be disbarred for their misrepresentations, but that doesn't slow down Harris, who spends years denying that she lost.

Instead . . .

1) A graceful, dignified concession speech the day after the election.
2) As V.P., counting the votes in the Senate chamber in front of gloating Republicans who ran for their lives on 1/6/21 and then refused to impeach the man who sent the mob, and declaring that man the winner.

Two very painful things to do, for which Trump lacks the maturity and courage. By now we can say that Republican politicians share those deficiencies.

[SimonP]

Note that lower courts have generally concluded that the First Amendment includes a right to videorecord in public places, at least when the recording is of public officials (such as police officers). The logic of those cases suggests that this right to gather information would include the right to videorecord even private citizens in public places;…

No, it actually doesn’t. Eugene, you might take the time to review those courts’ opinions.

The First Amendment protects the recording of police activity because that relates to a core free speech interest, which is being able to comment on, and criticize, the actions of governmental officials. That principle doesn’t generalize easily to include recording the activities of private actors in public spaces, and even if it did, there isn’t any obvious reason why the principle wouldn’t extend also to recording the activities of private actors in private spaces. Your statement here is just astonishingly lazy and underexamined.

Now – there may be an argument about recording the conduct of people in and around a polling station, which would be more in line with the police-recording cases. But those other cases also would lead us to apply an intermediate level of scrutiny to restrictions on polling-place recording. And surely any such analysis would have to take into consideration the importance of the secret ballot and the avoidance of voter intimidation.

Put simply – these douchebags were trying to intimidate voters. They were patently recording people leaving a polling site. Their purposes unclear, this made voters uncomfortable, and that discomfort was not unreasonable. A person going to vote should not be made to feel like they are going to get an abortion, and the First Amendment should not be used as a shield to protect this kind of harassment.

[Jmaie]

"Put simply – these douchebags were trying to intimidate voters."

No disagreement there, but it seems odd to accuse Eugene of laziness for not providing support for his (incorrect) position while not bothering to offer anything beyond assertion yourself...

Cheers.

[hobie]

Ugh. '1st Amendment Auditors' are the most obnoxious and repulsive people on the planet. They try to scare or anger people to get Internet clicks. Please, please someone pass a law to limit this harassment.

[John F. Carr]

Were the pseudonymous defendants aware of the order against them? Without a named defendant could the ACLU hand a copy of the order to any person the ACLU wanted excluded from the vicinity of a polling station? And is an ex parte TRO abridging First Amendment rights enforceable? This case is distinguishable from Walker v. Birmingham if the courts want it to be.