In a victory for the First Amendment, a federal appeals court unanimously struck down New Hampshire’s law banning “ballot selfies.”
In a thoughtful 22-page opinion issued Wednesday, the First Circuit Court of Appeals unequivocally concluded that the law violates free speech rights:
“The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment . … Ballot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate. …
“New Hampshire may not impose such a broad restriction on speech banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: ‘a picture is worth a thousand words.’”
The law, which went into effect in September 2014, banned a person from displaying a photograph of a completed ballot, including on the internet through social media platforms like Twitter, Facebook, and Instagram. Engaging in this form of political speech was a violation-level offense punishable by a fine of up to $1,000.
The New Hampshire Legislature’s idea was to prevent illegal vote buying and voter coercion. But rather than limiting the law’s reach to online displays of marked ballots linked to these illegal schemes, the law banned innocent displays on social media as well — a form of speech which is almost always political in nature.
So the ACLU of New Hampshire brought a lawsuit challenging the law on behalf of three New Hampshire voters, including a member of the New Hampshire House of Representatives.
One of the other people we represented was Andrew Langlois. He was frustrated with the candidate choices during the 2014 primaries, so he wrote in the name of his dog, Akira, who had recently passed away. He also took a picture of the ballot with his phone, and later posted it on Facebook. A few weeks later, he got a call from the New Hampshire Attorney General’s Office, which told him that he was under investigation for breaking the ballot selfie law.
We won in the district court, and the state appealed, leading Snapchat, the Reporters Committee for Freedom of the Press, and others to file friend-of-the-court briefs supporting our position.
The appeals court found that the law was vastly overbroad:
“At least two different reasons show that New Hampshire has not attempted to tailor its solution to the potential problem it perceives. First, the prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons . … Second, the State has not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified.”
In short, the court concluded — quoting a 1957 Supreme Court opinion — “The ballot-selfie prohibition is like ‘burn[ing down] the house to roast the pig.’”
Indeed, the First Amendment doesn’t allow the government to broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct. The best way to combat vote buying and voter coercion is to investigate and prosecute cases of vote buying and coercion.
The ballot selfie ban is one of many laws passed that restrict how everyday citizens can use the internet. These measures have included attempts to create new decency restrictions for online content, to limit minors’ access to information on the internet, or to allow the unmasking of anonymous speakers without careful court scrutiny.
Though well intentioned, the laws often violate free speech rights. We will keep fighting to ensure the government respects the First Amendment online.