Last week, the First Circuit heard oral argument in Rideout v. Gardner. The case concerns the constitutionality of a New Hampshire statute — N.H. Rev. Stat. Ann. § 659:35 (as amended in 2014) — which prohibits voters from sharing photos of their marked ballots on social media. Specifically, the statute bars (among other things) “taking a digital image or photograph of [one’s] marked ballot and distributing or sharing the image via social media.” It has become known as New Hampshire’s “ballot selfie” law.
Party briefs filed in the case include the following:
- an opening brief filed by the State of New Hampshire on behalf of named defendant-appellant, William M. Gardner, who is the Secretary of State of New Hampshire (sued in his official capacity);
- an opposition brief filed by the ACLU of New Hampshire on behalf of the plaintiffs-appellees — Leon Rideout, Andrew Langois, and Brandon Ross; and
- a reply brief filed on behalf of Secretary of State Gardner.
In April, the Cyberlaw Clinic filed an amicus brief in the case on behalf of the New England First Amendment Coalition and the Keene Sentinel. The brief supported plaintiffs-appellees. As the Clinic noted in a previous blog post, the brief highlighted the important free speech issues at play and detailed many ways in which ballot selfies can improve the political process, such as by increasing civic engagement among young voters and helping to address problems of ballot confusion and design.
Other amici appeared as well, filing briefs in support of the appellees’ position. Neal Katyal of Georgetown Law and Hogan Lovells filed a brief on behalf of Snapchat and Eugene Volokh of UCLA School of Law (and an Academic Affiliate at Mayer Brown) filed a brief on behalf of the Reporters Committee for Freedom of the Press. These briefs also raised concerns about the statute’s constitutionality.
Oral argument took place on Tuesday, September 13th, at the John Joseph Moakley United States Courthouse in Boston. New Hampshire Assistant Attorney General Stephen Labonte appeared on behalf of defendant-appellant, Secretary of State Gardner, and Gilles Bissonnette from ACLU-NH appeared for the plaintiffs-appellees.
From the beginning of the state’s argument, the three-judge panel — Judges Lipez, Lynch, and Thompson — focused heavily on the fact that the statute seems to address, in the words of Judge Lynch, a “problem that may not exist” (or one that, at the very least, has not been “proven to exist”). The state defended the constitutionality of the statute by highlighting the importance of protections against vote-buying and voter coercion and speculated that ballot-selfies might be used as the type of proof a vote-buyer might demand of a vote-seller. But, the state offered no evidence — as a general matter — that this type of activity had presented a problem in New Hampshire. And, the record was specifically devoid of evidence that photos of completed ballots were being used in the way the state suggested they might be used.
Mr. Labonte repeatedly invoked the potential harms wrought by “new technologies” and the fact that voters are now “taking the world into the voting booth with them.” He suggested that this might facilitate vote-buying and -selling. But, Judge Lipez interjected that the state had “absolutely no evidence” that the kind of vote-buying or voter coercion that were stated rationales for the statute were actually taking place.
In addition to the absence of evidence supporting the bill’s purported rationale, the panel focused a lot of attention on whether the statute as enacted was narrowly-tailored. Mr. Labonte argued that it was so tailored in light of the fact that in targeted “only one manner” in which one might express a view about one’s experience in the voting booth. That is to say — the statute prohibits sharing of photographs, not (as Mr. Labonte suggested) running to the courthouse cafeteria and shouting about one’s choice in a given election. Judge Lynch questioned whether that was a reasonable distinction, noting the adage that “a picture is worth 1,000 words.”
Judge Lipez was more pointed, asking how the state could possibly argue the statute was narrowly tailored given that it “sweeps into its ambit” people like the plaintiff-appellees in the case (who, concededly, had taken photos of marked ballots for purposes other than to support a vote-buying or -selling scheme.) Judge Lipez seemed incredulous, suggesting that New Hampshire had “turned First Amendment analysis on its head” by arguing that the statute met narrow-tailoring requirements under either an intermediate scrutiny or strict scrutiny standard of review.
The panel also noted the existence of criminal remedies that prohibit the type of conduct the state claimed was the target of this statute. The judges questioning the additional value that this type of statute might add to the state’s arsenal in preventing activity that all seemed to agree was (and should be) unlawful.
Counsel for plaintiffs-appellees opened his argument by focusing on the fact that the law bans “innocent political forms of expression” that have nothing to do with vote-buying and coercion. The panel’s questions focused largely on the various paths it might take in ruling in favor of the appellees. Judge Lynch remarked that First Amendment doctrine is a “minefield” and addressed with counsel the viability of arguments based on overbreadth and narrow-tailoring and whether the statute should be subject to intermediate or strict scrutiny. Regarding the lack of evidence proffered by the state, Judge Lipez asked whether the requirement of narrow tailoring permitted a legislature to assert a “prophylactic justification” for a law — that is, a justification based on something that might someday happen as opposed to something that evidence demonstrates has happened in the past.
Judge Lynch suggested that the ACLU-NH might want the Court to rule that the statute at issue was content based (in which case, strict scrutiny would apply). But, Mr. Bissonnette offered the panel a range of ways in which the Court might rule in his clients’ favor. He argued that, even under intermediate scrutiny, the statute would fail based on a lack of narrow-tailoring. Mr. Bissonnette noted that, far from demonstrating that there were “no less-restrictive alternatives” to the approach the New Hampshire legislature ultimately adopted, the legislature in this case had “tried nothing” in terms of alternative ways to address purported vote-buying and voter coercion issues.
No time is set for a ruling in the case, but the Cyberlaw Clinic will continue to monitor the docket.
Alisha Siqueira is a 2L at Harvard Law School and is enrolled in the Cyberlaw Clinic during the fall semester 2016.