Today, the Digital Media Law Project is launching a new guide to photography and filming at this year’s presidential election, Documenting the Vote 2012. This resource provides a wide range of information for all fifty states plus the District of Columbia, regarding laws that restrict the use of cameras in and around polling places (as well as other journalistic activities).

One particular type of law, common to many states, is worthy of particular note. As reflected in our new guide, many states have statutes that prohibit the display of one’s own marked ballot to others. A small number of these states only prohibit disclosure of one’s ballot in the voting room or prior to submission of the ballot, but most impose a flat prohibition on disclosure backed up by criminal penalties or cancellation of the vote in question. These statutes by their explicit terms appear to ban sharing of a photograph of one’s ballot even after the election is over.

Now, we can debate the wisdom of a voter openly declaring the candidate for whom he or she voted. There are sound reasons for a person to keep his or her ultimate selection secret, whether to prevent intimidation at the polling place or retribution by employers or others after the fact. It is easy to imagine situations in which the thoughtless posting of a marked ballot on Facebook could result in negative consequences, as with the posting of so many other ill-advised Facebook photos.

And yet, the First Amendment’s protection is at its peak in the realm of speech on political issues. Can a law prohibiting a voter from disclosing his or her own marked ballot be constitutional?

Content-neutral or content-based?

At the outset, it is important to distinguish ballot disclosure laws from other modes of preventing a voter from disclosing his or her vote. Several states also have laws that would prohibit the use of cameras within the polling place, making it impossible to share a photograph of a marked ballot. There is less of a question that laws banning cameras at the polls are constitutional. (Although it might seem paradoxical that one might have a First Amendment right to publish a photograph that one does not have a First Amendment right to take, this is a paradox familiar to anyone who has used a camera in a courtroom. See, e.g., Commonwealth v. Barnes, 461 Mass. 644 (2012) (court order forbidding disclosure of video taken in courtroom held unconstitutional, despite fact that videographer had no First Amendment right to shoot the video).)

Similarly, ballot disclosure laws are not complete bars to disclosure of a voter’s choice; voters are free to discuss their votes, albeit without proof in photographic form. But despite the fact that a ballot disclosure law does not forbid other methods of communicating one’s vote, there is a strong argument that such a law is not a content-neutral restriction on the manner (as in “time, place, or manner”) of speech.

The U.S. Supreme Court has upheld “reasonable ‘time, place, or manner’ restrictions, but only if they are justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). But in Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99 (1972), a case concerning a ban on picketing and demonstrations addressing any issues except labor disputes, the Supreme Court stated that a law that specifically targets the content of a particular method of speech:

itself describes impermissible [activity] not in terms of time, place, and manner, but in terms of subject matter. The regulation thus slips from the neutrality of time, place, and circumstance into a concern about content. This is never permitted.

See also Burson v. Freeman, 504 U.S. 191, 197 (1992):

Whether individuals may exercise their free speech rights near polling places depends entirely on whether their speech is related to a political campaign. … This Court has held that the First Amendment's hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic.

In most if not all cases, bans on the disclosure of marked ballots are intended to prohibit the revelation of specific content – in a way independent of the viewpoint of the speaker, true, but as in Burson the restriction “depends entirely on whether their speech is related to a political campaign.” For example, Kansas Statutes § 25-2422 defines “Unauthorized voting disclosure” as, “while being charged with any election duty, intentionally: (a) Disclosing or exposing the contents of any ballot or the manner in which the ballot has been voted, except as ordered by a court of competent jurisdiction.” South Dakota Codified Laws § 12-18-27 states that “No person may show a ballot after it is marked to any person in such a way as to reveal the contents of the ballot, or the name of any candidate for whom the person has marked a vote.” Some of these statutes are less clear on their face that the prohibition of the disclosure of a marked ballot is specifically intended to prevent disclosure of how a person votes – for example, California Elections Code § 14291 provides that “[a]fter the ballot is marked, a voter shall not show it to any person in such a way as to reveal its contents” – but they are still keyed to content. (It is also unlikely that these statutes would be applied to, say, the display of one’s random doodling in the margins.)

Strict scrutiny

Of course, Mosley’s statement that such laws are “never permitted” is a bit strong in this context, but statutes that forbid the dissemination of truthful and lawfully obtained information on a matter of public concern must meet a daunting standard. Namely, “punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order[.]” Florida Star v. B.J.F., 491 U.S. 524, 541 (1989).

In Florida Star, the U.S. Supreme Court considered the constitutionality of imposing civil penalties upon a newspaper that disclosed the name of a rape victim identified within a police report. The newspaper had obtained the police report legally; nevertheless, the victim sued the newspaper for violating Fla. Stat. § 794.03 (1987), which made it unlawful to "print, publish, or broadcast . . . in any instrument of mass communication" the name of the victim of a sexual offense, and obtained a judgment against the newspaper of $100,000 in compensatory and punitive damages.

On appeal, the Supreme Court reversed the verdict, finding that the First Amendment precluded the imposition of liability on the newspaper. While acknowledging that the interests in the privacy and safety of rape victims were compelling state interests, 491 U.S. at 573, the Court found that the statute in question was not narrowly tailored because it swept in a wide array of protected speech while applying only to large media outlets (leaving “smalltime disseminators” unrestricted), id. at 539-41.

Matters of public concern

So, how do prohibitions on disclosure of one’s marked ballot fare under this standard? As a starting point, we should consider whether revelation of an individual specific ballot involves a matter of public concern, such that the standards discussed in Florida Star apply. [FN] The secrecy of a person’s vote is considered sacrosanct, of course, but we are considering a situation in which an individual chooses to reveal his or her own vote. It is also easy to imagine circumstances in which documentation of a particular person’s vote might be of great public concern – for example, if a voting district reported near-unanimous returns for a particular candidate, a relatively small group of voters might be able to uncover fraud or flaws in the system by disclosing their ballots.

There is, moreover, a risk of framing the “public concern” inquiry too narrowly. In Florida Star, the Court looked to the topic of the newspaper article at issue rather than just the identity of the rape victim when evaluating whether the information at issue touched on a matter of public concern:

[T]he article generally, as opposed to the specific identity contained within it, involved a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.

491 U.S. at 536-37. Similarly, the issue in the case of ballot disclosure laws is not necessarily the identity of the candidate for whom a person voted, as opposed to the ability of an individual to discuss their experience of at the polls generally.

State interests

On the other side of the analysis, laws against ballot disclosure must fail unless there is a “state interest of the highest order” at stake. In the realm of voting and elections, however, there are a number of well-recognized state interests that are implicated. In particular, in Burson, the Supreme Court recognized two separate compelling interests that support restrictions on electioneering near polling places: first, “a State has a compelling interest in protecting voters from confusion and undue influence”; and second, “a State indisputably has a compelling interest in preserving the integrity of its election process.” Id. at 199.

These interests appear to remain compelling in the context of ballot disclosure laws. Display of a marked ballot to voters waiting in the queue can be used as a form of pressure to vote similarly, or to confuse voters who have difficulty reading English as to how to mark their own ballots. Even innocent disclosures by those enthusiastic about their votes might inadvertently influence other voters. Similarly, those who might attempt to buy votes will generally require proof that the voter has in fact been bought, possibly through display of a marked ballot.

In addition, a third related interest more specific to ballot disclosure could be advanced: protecting the secrecy of the vote. Laws that address one’s own vote might seem unrelated to this concern, because we have long recognized the right of individuals to consent to the disclosure of their own private information. But this concern is less about personal privacy than it is the secrecy of the ballot as a systemic concern – i.e., preventing the development of a general “culture of disclosure,” so that voters do not face peer pressure to reveal their votes and open the election process to social forces that interfere with a voter’s exercise of personal conscience. This elevates the privacy issue above the personal level, making the right of the individual to consent less relevant.

Tailoring

But if we accept that there are compelling state interests at stake, many existing ballot disclosure laws face serious concerns as to whether they are narrowly tailored to meet those interests.

Concerns about voter intimidation and confusion are only relevant while the voting process in progress, but many ballot disclosure laws have no time limitation; by their terms, the ban continues indefinitely. As such, these laws are not narrowly tailored to the interest at stake. In contrast, those state laws that contain temporal or geographic restrictions – e.g., banning disclosure of how one is “about to vote” (as opposed to how one has voted), see N.H. Rev. Stat § 659:35(I), or “within the voting enclosure,” see Okla. Stat. § 26-7-109 – are much more likely to be found narrowly tailored. (Indeed, for these purposes, such laws could likely remain in force until the polls close, because someone who has already voted could potentially influence other voters who have yet to vote.) See Burson, 504 U.S. at 211 (finding a ban on electioneering limited to a 100-foot zone around a polling place on election day to be the “rare case” of a law that survives strict scrutiny).

A more complex tailoring question is raised by attempts to penalize ballot disclosure as a method of stemming bribery and vote purchasing schemes. If the state is concerned with display of proof of one’s vote as part of such a scheme, it would appear insufficient to limit the ban on disclosure to either the polling place or the day of the election. That said, there are narrower alternatives to a post-election ban, such as directly criminalizing the transaction rather than criminalizing speech as a proxy. After an election is concluded, it is unlikely that a ballot would be disclosed in connection with a vote-buying scheme in a manner such that detection of the disclosure by law enforcement would not also detect the underlying transaction. Indeed, many states do have laws that specifically prohibit the purchase or sale of votes; these laws do not, like ballot disclosure laws, sweep in a wide array of innocent speech by those who did not sell their votes.

Finally, the systemic privacy of the vote is a concern that transcends the day of the election, but it is not clear that the preservation of systemic privacy requires the punishment of voters who wish to reveal only their own choices. To the extent that we are concerned about cultural norms, a less restrictive and likely more effective option would be in the normative space. Rather than punish individual voters, states can accomplish this goal through public service announcements and other statements about why we treat voting as secret, and the importance and solemnity of the voting booth.

Overbreadth and judicial construction

For the reasons above, those ballot disclosure laws which are unlimited in place or time are likely to be considered overbroad under the First Amendment. A statute is overbroad if it “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep,’” Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). A showing that a statute prohibits a substantial amount of protected speech “suffices to invalidate all enforcement of that law, ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.’” Hicks, 539 U.S. at 119 (quoting Broadrick, 413 U.S. at 613) (emphasis in original).

Courts faced with a statute that is overbroad on its face can either limit the statute as a matter of judicial construction, or enjoin enforcement of the statute, leaving its amendment to the state legislature. The decision which approach to take involves balancing two separate interests: (1) the interest in not striking laws entirely that could constitutionally be applied to a particular defendant before the court; and (2) the concern about substituting the court’s judgment for that of the legislature. Generally, courts will engage in limiting constructions where there is either some ambiguity in a statute allowing a constitutional interpretation of the statute, or evidence in the legislative history of the statute such that a court can be relatively confident that it is carrying out the legislature’s intent.

In the case of ballot disclosure laws, it is important to recognize that the overbreadth of many of these laws is (at least possibly) unintentional. The majority of these laws were promulgated before it was a simple matter to discreetly take a photograph of one’s ballot with a cellphone, and then publish that image to the Internet. It is quite possible that the lack of a temporal or geographic limitation on a ban on disclosure of one’s ballot is the result of nothing more than the failure of lawmakers to realize that it would even be possible to display the image of a ballot, after the ballot has been cast and the election has ended.

That being the case, it would seem likely that a court might employ a limiting construction with respect to ballot disclosure laws, and impose a restriction to the day of the election on the basis that such a restriction was likely implicit in a state legislature’s thinking when the statute was passed. Of course, if there is evidence of a contrary intent on the part of the legislature, imposing a judicial construction raises more serious issues.

Conclusion

Most states take extensive measures to protect voters from undue influence, and rightly so. Voting is the fundamental method by which American citizens exercise their rights of self-governance, and it is essential to combat corruption of the process. However, the extraordinary importance of voting also requires that we be free as citizens to discuss our experiences at the polls, including the people for whom we voted if we so wish. Otherwise, we begin to lose the protection against corruption and error that the First Amendment itself provides.

Jeff Hermes is the Director of the Digital Media Law Project. The author wishes to thank Andy Sellars, Staff Attorney for the DMLP, for his research assistance and for the extensive and at times heated debates over the past week that have helped him to refine his thinking on this topic significantly. It just goes to show that full and frank discussion can benefit us all.

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[FN] Some readers might wonder why I am applying the Florida Star version of the strict scrutiny test here, with its predicate question about whether the information at issue relates to a matter of public concern, rather than the Mosley/Burson formulation, which moves directly from determining that a statute is not a content-neutral time, place or manner restriction to determining whether the law is narrowly tailored to serve a compelling state interest. A key distinction between ballot disclosure laws and the type of laws at issue in Mosley and Burson is that ballot disclosure laws, rather than targeting an entire category of public discussion, are focused on the disclosure of a specific type of fact. Analytically, ballot disclosure laws are more akin to the statute at issue in Florida Star, which rather than prohibiting discussion of sexual assault just prohibits the disclosure of victim identities. The Florida Star Court apparently felt compelled to verify that the narrow facts at issue were related to matters of public concern, thus connecting a ban on a specific type of fact with a chilling effect on a wider range of speech. That being the case, for the sake of completeness I consider the issue in this post as well. Once past that issue, the distinctions between the Florida Star and Mosley/Burson tests become trivial (the distinction between a statute narrowly tailored to serve a "compelling state interest" and one narrowly tailored to serve a "state interest of the highest order" being largely if not entirely semantic).

(Photograph of a ballot courtesy of Flickr user turtlemoon, pursuant to a Creative Commons CC BY-NC-ND 2.0 license)