Pure political speech represents the core type of speech the First Amendment was designed to protect. A case this term, Minnesota Voters Alliance v. Mansky, before the U.S. Supreme Court will test the Justices’ commitment to this principle.
A Minnesota law forbids voters from wearing a “political badge, political button, or other political insignia . . . at or about the polling place on primary or election day.”
The 8th U.S. Circuit Court of Appeals upheld the law, reasoning that a polling place is a nonpublic forum instead of a traditional, designated or limited public forum where free-speech rights are greater. Under the Court’s public forum doctrine, restrictions on speech in nonpublic forums are constitutional if the restrictions are viewpoint neutral and reasonable.
The 8th Circuit reasoned that the restrictions on all political speech in polling places was viewpoint neutral, as it applies to all speech regardless of political views. It also deemed it reasonable because it furthered the state’s interest in preserving the integrity of the election process and protecting voters from confusion and undue influence.
The 8th Circuit relied on the U.S. Supreme Court’s controversial decision in Burson v. Freeman (1992), upholding a Tennessee law prohibiting campaign materials and voter solicitation within 100 feet of a polling place. The Court recognized the law was a content-based restriction on speech but applied a version of strict scrutiny called “exacting scrutiny” and upheld the law as a way to protect the constitutional right of voting.
The Minnesota law banning all political badges or buttons is far broader than the Tennessee law in Burson. The Tennessee law prohibited campaign materials and voter solicitation; the Minnesota law creates a complete and total ban on political speech – even political speech that is not advocating for or against candidates.
Numerous civil liberties groups across the ideological spectrum recognize the problems with the overbroad Minnesota law. The American Civil Liberties Union, the Cato Institute, and the Rutherford Institute all agree the law is unconstitutional.
These civil liberties groups are correct. A state should not be able to create a First Amendment free zone for all political speech.
A potentially even more far-reaching question is whether the Supreme Court might re-examine its holding in Burson. In his concurring opinion in Burson, Justice Anthony Kennedy wrote that “there is a narrow area in which the First Amendment permits freedom of expression to yield to the extent necessary for the accommodation of another constitutional right.”
But, is banning political speech necessary to protect voting rights? I don’t think so.
People have the right to receive information and ideas about different political candidates, views, and ideas – even close to polling places. They certainly have the right to wear political buttons and badges.
Hopefully, the U.S. Supreme Court will safeguard what Justice John Paul Stevens termed in his Burson dissent as “classic political expression.”
David L. Hudson, Jr., the Ombudsman for the Newseum Institute First Amendment Center, has written several books on school law, including Let The Students Speak!: A History of the Fight for Freedom of Expression in American Schools and Teen Legal Rights (3rd edition).