United States Senate
Washington, D.C. 20510
Dear Senator:
The American Civil Liberties Union (ACLU) strongly urges you to oppose the amendment submitted by Senator Robert Smith, S.A. 2933. Paragraph (b) (the "exit poll amendment") of the amendment would prohibit networks from broadcasting, before the polls have closed, the fact that exit polling indicates a particular person has won an election.We are concerned that this paragraph violates the First Amendment to the United States Constitution which provides that: "Congress shall make no law... abridging the freedom of speech, or of the press..."
The exit poll amendment clearly prohibits speech and the press in reporting newsworthy information. For example, if one candidate is significantly ahead of the other, and there is little or no chance that the loser can make up the deficiency, and a broadcasting network declares a winner before the polls close, the licensee could be "fined not more than $10,000,000, imprisoned not more than five years, or both,'' even though the information is correct. This is not simply a time, place, and manner restriction. It is an outright prohibition of speech.
The Supreme Court has often approved reasonable time, place, and manner restrictions in a public forum under three circumstances. Restrictions are justified when: (1) the restriction does not seek to regulate the content of the speech, (2) the restriction serves a significant governmental interest, and (3) the restriction leaves open ample alternative channels for communication of the information. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981). In this instance, the exit poll amendment fails to qualify as a valid time, place, and manner restriction because it does not limit the regulation to speech in a public forum (like the streets or a public park), but extends it to private venues, specifically broadcasting networks. Secondly, the amendment clearly seeks to regulate the content of the speech. It would prohibit broadcasters from reporting specific information regarding election results. Thirdly, depriving the citizenry of information regarding how their candidate is faring in the election is not a significant governmental interest. In our democracy, Americans live by the concept that people should have the information and judge for themselves what action they should take. The exit poll amendment takes a paternalistic approach by assuming because some people may make the "wrong" choice by deciding not to vote when exit polling results are disclosed, we will just deprive everyone of the information. Finally, the amendment leaves open no alternative channels for communication of the information.
Most notably, the exit poll amendment is dangerous because it limits the content of what broadcasters may report, leaving voters in the dark about how their candidate is faring during the election. Content-based restrictions are disfavored under the law and are presumed to be invalid. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). There is no compelling governmental interest in keeping voters in the dark. The exit poll amendment furthermore imposes a prior restraint on the press, which is antithetical to our democratic values.
While we recognize the negative impacts of early reporting, the First Amendment clearly prohibits the restrictions on the content of speech. Not only would the passage of the exit poll amendment have a chilling effect on the media's ability to cover election results, but it would also violate the First Amendment. Therefore, we urge you to oppose the exit poll amendment.
Sincerely,
Laura W. Murphy
Director
LaShawn Warren
Legislative Counsel
Marvin Johnson
Legislative Counsel