August 18, 2015

"It is not too early to identify the sleeper case of the last Supreme Court term."

"In an otherwise minor decision about a municipal sign ordinance, the court in June transformed the First Amendment."
Though just two months old, [Reed v. Town of Gilbert] has already required lower courts to strike down laws barring panhandling, automated phone calls and “ballot selfies.”

The ordinance in the Reed case discriminated against signs announcing church services in favor of ones promoting political candidates....

The key move in Justice Thomas’s opinion was the vast expansion of what counts as content-based [and thus subject to strict scrutiny]. The court used to say laws were content-based if they were adopted to suppress speech with which the government disagreed.

Justice Thomas took a different approach. Any law that singles out a topic for regulation, he said, discriminates based on content and is therefore presumptively unconstitutional.

Securities regulation is a topic. Drug labeling is a topic. Consumer protection is a topic....
“The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation,” Judge Easterbrook wrote [in a recent 7th Circuit case]. “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.”...

Last week, a federal judge in New Hampshire relied on Reed to strike down a law that made it illegal to take a picture of a completed election ballot and show it to others, including on social media. The law was meant to combat vote buying and coercion, which were common before the adoption of the secret ballot.

“As in Reed,” Judge Paul Barbadoro wrote, “the law under review is content-based on its face because it restricts speech on the basis of its subject matter.”

25 comments:

themightypuck said...

"Last week, a federal judge in New Hampshire relied on Reed to strike down a law that made it illegal to take a picture of a completed election ballot and show it to others, including on social media. The law was meant to combat vote buying and coercion, which were common before the adoption of the secret ballot."

Clutches pearls!

Ignorance is Bliss said...

Professor-

Do you have thoughts on the ballot-selfie ruling? If vote-buying and coercion were common before the secret ballot, wouldn't that meet the strict scrutiny burden?

Mark said...

Retail vote buying is so 20th Century.

MadisonMan said...

Free Speech is a good thing. More free speech is also good. I don't see what the NYTimes is afraid of.

Kagan is quoted at the end:

“I see no reason,” she wrote, “why such an easy case calls for us to cast a constitutional pall on reasonable regulations . . .

I suspect her view on "reasonable" is a lot closer to the side of Govt Knows Best than mine.

Just an old country lawyer said...

Because "Congress shall make no law ... abridging freedom of speech..." is such a difficult concept to get your head around. Thank God for Justice Thomas.

mccullough said...

Never heard of a ballot selfie before.

bleh said...
This comment has been removed by the author.
bleh said...

I thought "content-based" and "viewpoint discrimination" were separate concepts? Viewpoint discrimination is one kind of content-based restriction, but not all content-based restrictions discriminate on the basis of viewpoint. For example, a ban on profanity is content-based but viewpoint neutral. The NYT seems to conflate the concepts when it says "the court used to say laws were content-based if they were adopted to suppress speech with which the government disagreed." I'm pretty sure that subject-matter restrictions, even if viewpoint neutral, have long been regarded by the court as "content-based" restrictions.

Big Mike said...

When people get past their racism, they find that they can learn a lot from Clarence Thomas.

JAORE said...

"When people get past their racism, they find that they can learn a lot from Clarence Thomas."

Why do they have to get "past their racism"? Justice Thomas isn't REALLY black. Or haven't you heard?

Scott said...

"Securities regulation is a topic. Drug labeling is a topic. Consumer protection is a topic...."

Isn't that what you lawyers call reductio ad absurdum?

Kyzer SoSay said...

What if I take a selfie with a hard copy of one of Hillary's "classified, but I didn't know that" emails in my hands and send it to Putin over Facebook? Am I guilty of treason or something?

Brian said...

That headline drives me nuts. The plain text of the 1st Amendment is sweeping, expansive, absolute. "Congress shall make no law abridging the freedom of speech." In this frame of reference there is no "free-speech expansion" to be done.

MarkW said...

The law was meant to combat vote buying and coercion, which were common before the adoption of the secret ballot.

Clutches pearls!

And why exactly don't you think that could become a problem? Everybody in government (or business) office posting a ballot-selfie showing them voting for their boss's preferred candidate. But a few people don't play along. And they get mysteriously start getting bad reviews, aren't promoted, and then are shown the door in the next round of layoffs. Coincidence?

Birches said...

So you're fb friends with everyone you work with, MarkW? Is it now a work requirement to let your boss follow you on Instagram?

Expat(ish) said...

We have 4,500 people in 12 countries in our company, and my last job was at a place 8x that size.

Hard to keep track of who is where in Instagram with their ballot.

-XC

MadisonMan said...

And why exactly don't you think that could become a problem?

Because I am less paranoid than you?

SeanF said...

MarkW: And why exactly don't you think that could become a problem? Everybody in government (or business) office posting a ballot-selfie showing them voting for their boss's preferred candidate. But a few people don't play along. And they get mysteriously start getting bad reviews, aren't promoted, and then are shown the door in the next round of layoffs. Coincidence?

Wouldn't that mean it needs to be illegal to even tell someone how you voted?

Michael said...

Commenters are making the "ballot selfie" issue too complicated. All it takes is some precinct worker in the machine wards of Philadelphia or Chicago telling his people "send me a selfie with a ballot filled out the way I want it and I'll give you $20." There's plenty of street money spread around as it is, and this lets the spreaders make sure they are getting their money's worth.

Ignorance is Bliss said...

SeanF said...

Wouldn't that mean it needs to be illegal to even tell someone how you voted?

Lying about how you voted is much easier than creating a fake selfie that is not obviously a fake.

The secret ballot largely put an end to vote-buying and coercion, even though it didn't stop people from the asking or telling.

A ballot selfie give someone the option of un-secreting their ballot if they wish to sell their vote. It give someone who is in a position to apply coercion the ability to coerce someone into un-secreting their ballot.

SeanF said...

Ignorance is Bliss: Lying about how you voted is much easier than creating a fake selfie that is not obviously a fake.
Yes, but look at MarkW's post again.

So people claim to have voted for the boss's favorite candidate (some of whom actually did and some of whom are lying), and those who say they voted for someone else, or outright refuse to say who they voted for at all, mysteriously start getting bad reviews, aren't promoted, and then are shown the door in the next round of layoffs.

It can happen just as easily as his hypothetical could, so if that hypothetical justifies prohibiting "ballot selfies," than it justifies prohibiting saying who you voted for at all.

Also, as far as I know, the laws didn't prohibit you from photographing your own ballot, just from sharing that photograph with others - which means it's pretty much unenforceable unless you share the photograph publicly, and that wouldn't be necessary for MarkW's hyopthetical anyway.

Glenn Howes said...

In 2004, I wanted to show my foreign born, legal resident wife how voting works, so I asked the folks at the New Hampshire polling place if she could accompany me into the booth. They let me. Assuming this was legal then, then this isn't much of an expansion of knowability.

Yancey Ward said...

The "sleeper case" is still the Obamacare decision and the method Roberts used to reach it. Unless a conservative dies and is replaced in the next two years, you are going to see some big consequences for how some laws are being interpreted by the administration. Sure, it won't deter the liberals on the court, but the attacks on the coming decisions will fall somewhat more flat because of it.

Christopher B said...

Glenn, I see what you did as something akin to telling a person how you voted. Though she witnessed your vote there was still no permanent record of your vote other than the ballot (however that was recorded - paper, electronic, or other means).

What should be outlawed is not expressing how you voted but the act of creating an independent permanent record of a ballot by any means. Cell phone snapshots are just the easiest to make, and the easiest to share.

mikee said...

I find it amusing that anyone is worrying about cast votes. Those don't matter anymore, and haven't for a long time. The only thing that counts is the reported total vote, and that number is wonderfully elastic in Democrat hands.