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The New England First Amendment Coalition filed an amicus brief today with the U.S. Court of Appeals for the First Circuit arguing that a New Hampshire law prohibiting “ballot selfies” is an unconstitutional restriction on political speech and could impede the public’s ability to monitor its government.
As amended in 2014, N.H. Rev. Stat. Ann. § 659:35 prohibits “taking a digital image or photograph of [one’s] marked ballot and distributing or sharing the image via social media.”
“Political speech is a ‘core’ concern of the First Amendment and protection of speech is never stronger than when the speaker is addressing political or government issues,” NEFAC argued in the brief, adding that the ability “to take photos that capture newsworthy events and engage in public discussion about ballots and elections is increasingly important today as traditional media faces tighter resource constraints and citizens increasingly turn to social media as a source of information and discussion.”
Attorneys Andy Sellars and Chris Bavitz at the Harvard Law School Cyberlaw Clinic drafted the brief 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.
The case before the First Circuit court, Rideout v. Gardner, involves three New Hampshire voters who posted images of their ballots on social media sites and have been threatened with prosecution under the amended statute. The voters challenged the law on First Amendment grounds, and a U.S. District Court ruled in August 2015 that the statute was unconstitutional. An appeal of that ruling is now being heard by the First Circuit court.
“The ballot selfie isn’t just a millennial fad,” said Justin Silverman, NEFAC’s executive director. “It’s an important tool to help keep our democracy functioning. By expressing themselves through social media photos, voters are both energizing the election process and informing others about flaws in that process.”
The brief cites several instances of how photos of ballots posted on social media helped clarify voting procedures and encourage better ballot design. During Ohio’s 2016 Republican primary, for example, a last-minute change in the way the state apportioned delegates resulted in a ballot that included two separate boxes for voting for a presidential nominee, each of which contained the names of all the candidates, but only one which counted. Even more confusingly, the box that appeared at the top, center of the ballot was the box that did not count; voters had to know to look down the page and to the left to find the part that did count. It was a problem that took multiple sentences to describe and even then could have left voters confused. It became much simpler to express when a voter posted photos on Twitter demonstrating the correct way to complete the ballots.
These images are evidence “that photographic speech can clear voter confusion, communicating ideas simply and effectively,” according to the brief. “If left uncorrected, this kind of confusion can have drastic consequences.”
As explained in the brief, Section 659:35 should be deemed unconstitutional for reasons including:
The statute is content-based and targets core political speech: “The combination of an increasingly accessible technology and a society that conducts more and more of its political and civic speech online results in a large and growing number of people who post their completed ballots on social media . . . Ballot selfies are a popular, modern form of core political expression, and any attempt to limit their use or regulate their content should meet exacting scrutiny.”
Photography is protected by the First Amendment and can communicate ideas that words alone cannot: “Photography can tell stories, communicate ideas, and spread messages that cannot be expressed using only words, no matter how carefully written or eloquently expressed. The value of images comes from their ability to tell a story instantly, to make it personal to an audience, and to spur an audience to action.”
Images of ballots are routinely used to monitor the government, engage 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.”
NEFAC regularly files and joins amicus briefs in cases that affect the First Amendment rights of New Englanders. Most recently, NEFAC 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 Boston Globe and Boston University.