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The U.S. Court of Appeals for the First Circuit yesterday overturned a New Hampshire law banning “ballot selfies,” saying the law unconstitutionally restricts the First Amendment rights of all voters.
The New England First Amendment Coalition in April filed an amicus brief in the case arguing that the law is an unconstitutional restriction on free speech and could impede the public’s ability to monitor its government.
The case, Rideout v. Gardner, involves three New Hampshire voters who posted images of their ballots on social media sites and were threatened with prosecution under N.H. Rev. Stat. Ann. § 659:35. The statute was amended in 2014 to prohibit “taking a digital image or photograph of [one’s] marked ballot and distributing or sharing the image via social media.”
Attorneys Andrew Sellars and Christopher Bavitz at the Harvard Law School Cyberlaw Clinic drafted and filed an amicus brief in the case on behalf of NEFAC. The Keene Sentinel joined the brief in support. Organizations such as the Reporters Committee for Freedom of the Press and Snapchat filed their own amicus briefs addressing the statute’s First Amendment implications.
“As amici point out,” the court wrote in its decision, “there is an increased use of social media and ballot selfies in particular in service of political speech by voters. A ban on ballot selfies would suppress a large swath of political speech, which occupies the core of the protection afforded by the First Amendment.”
The law represents the latest effort by New Hampshire to prevent vote buying and voter coercion schemes. The state, however, could not provide evidence that such practices are actually occurring and the court found the statute in question was not narrowly tailored to protect First Amendment rights.
“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,” according to the decision. “Second, the state has not demonstrated that the other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified.”
In its amicus brief, NEFAC argued that images of ballots are routinely used to monitor the government, participate in political discussions and promote civic engagement:
“The Supreme Court has long recognized the importance of a free press in providing information to the public and acting as a ‘powerful antidote to any abuses of power by governmental officials.’ Today, that function — especially at the local level — is greatly aided by the ability of all citizens to freely document their daily life. And beyond a watchdog function, the common use of photos of ballots to promote civic engagement is worthy of protection in its own right.”
The coalition also argued that photography is protected by the First Amendment and can communicate ideas that words alone cannot, a point emphasized by the court in its decision:
“New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger,” the court wrote. “We repeat the old adage: a picture is worth a thousand words.”
NEFAC regularly files and joins amicus briefs in cases that affect the First Amendment rights of New Englanders. In addition to Rideout, NEFAC recently filed an amicus in Pinkham v. Maine Dept. of Transportation, a 2016 Maine case involving the right of litigants to obtain government information; and Commonwealth v. Lucas, a 2015 Massachusetts case addressing a state law that restricted free speech rights and could have resulted in unconstitutional restraints on publishers.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.