U.S. Supreme Court Declines ‘Ballot Selfie’ Case; Right to Photograph Remains Protected

NEFAC Filed Amici Brief Arguing New Hampshire Law Violated First Amendment Rights, Infringed Free Speech

CONTACT Justin Silverman | 774.244.2365 | mail@nefac.org

NEFAC Amici Brief

The U.S. Supreme Court on Monday declined to review a First Circuit Court of Appeals decision to strike down a New Hampshire law banning “ballot selfies.”

By declining to review the case, the court has allowed the First Circuit ruling to stand, a result the New England First Amendment Coalition calls a victory for the First Amendment and open government.

NEFAC filed an amici brief — drafted on behalf of the coalition by attorneys at the Harvard Law School Cyberlaw Clinic — last year arguing that the New Hampshire law is an unconstitutional restriction on free speech and could impede the public’s ability to monitor its government.

The Keene Sentinel joined NEFAC’s brief in support. Organizations such as the Reporters Committee for Freedom of the Press and Snapchat filed their own briefs addressing the statute’s First Amendment implications.

The case, Rideout v. Gardner, involved 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.”

In striking down the law as unconstitutional, the First Circuit wrote:

“As amici point out, 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.”

In its 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 First Circuit decision affects the New England states New Hampshire, Maine, Massachusetts and Rhode Island.

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, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.