Amicus Curiae Brief — Minn. Voters Alliance v. Mansky, 138 S. Ct. 446 (2017) (No. 16-1435)

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No. 16-1435

In the Supreme Court of the Gnited States

MINNESOTA VOTERS ALLIANCE, et ai.,

Petitioners,

Vv.

JOE MANSKY, et a/.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF JUSTICE AND FREEDOM FUND

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive, Suite 208

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Deborah J. Dewart

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

debcpalaw@earthlink.net

Counsel for Amicus Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~- 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........---++++>: iil

INTEREST OF AMICUS CURIAE .........-.--. 1

INTRODUCTION AND

SUMMARY OF THE ARGUMENT .......... 2

ARGUMENT... 22 cc ccc ccc reece c ee reccecces 3

L. THE STATUTE IS A CONTENT-BASED

RESTRICTION ON CORE POLITICAL

SPEECH THAT GRANTS EXCESSIVE

DISCRETION TO OFFICIALS AND

CREATES AN UNREASONABLE RISK OF

VIEWPOINT DISCRIMINATION. ........ 3

A. The Statute Is Imprecise, Granting

Officials Broad Discretion To Determine

What Is “Political” And Turn Voters

BE vccvecsecdivenssscccceencecrs 4

B. Forum Analysis Does Not Salvage The

Sn rere rT Te Te ee ee 10

[l. | THESTATUTE IMPEDES THE RIGHTS OF

VOTERS INSTEAD OF PROTECTING

GE nck cec ces evctencsoneivséececs 14

A. The Rights Of Voters Are Paramount—

The Right To Vote And The Right To

Political Expression. .........-.+++>+> 14

B. The State’s Interests Are Subservient To

The Rights Of Voters. ..........--++- 18

C. The Passive Speech Of Voters Is Not An

Appropriately Targeted Evil. ......... 21

Il. THE EIGHTH CIRCUIT RULING

EXACERBATES A DANGEROUS TREND

TO ESTABLISH “FREE SPEECH ZONES”

THAT IMPERIL FIRST AMENDMENT

RL Rho Wahs deuce ubdeend Ou NS Gap 26

EA cod cuvaleuweasekes Cade) a? 28

iii

TABLE OF AUTHORITIES

Cases

AFSCME, Council 25 v. Land,

583 F. Supp. 2d 840 (E.D. Mich. 2008) ....... 23

Anderson v. Celebrezze,

PD ie cesce he cbeueeee’ 18, 19

Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004) ............... 19

Arkansas Educ. Television Comm'n v. Forbes,

ee eee wis Babcs 21

Berner v. Delahanty,

SP ae ee Gs BE) vice revccvccsecs 20

Bd. of Airport Commissioners v. Jews for Jesus,

GUE EID oat cecceccceeceds 7, 25, 26

Broadrick v. Oklahoma,

I ae ee 20

Bryant v. Gates,

532 F.3d 888 (D.C. Cir. 2008) .............. 21

Buckley v. Valeo,

65s 4 en 6 666 sobs eee dn CRED 3

Burson v. Freeman,

SE EEE cbc ccc cciscoscsebe passim

Capen v. Foster,

I ns ek a we ea ans 14

Citizens for Police Accountability Political Comm. v.

Browning,

572 F.3d 1213 (11th Cir. 2009) ............. 24

Cohen v. California,

eT IE. oe woewanw ua ueasence 15, 22

Cons. Edison Co. v. Public Serv. Comm'n,

rr ote es bee ee abe eewe 3,4

Cox v. La.,

ED <n cccccaseekeuseseusa 11

Emineth v. Jaeger,

901 F. Supp. 2d 1138 (D. N.D. 2012).......... 6

Eu v. San Francisco Cty. Democratic Central

Comm.,

SEA Se PE e ee ee me 3

FEC v. Wisconsin Right to Life,

a ce I GE 9

Freeman v. Burson,

802 S.W.2d 210 (Tenn. 1990)............... 15

Frisby v. Schultz,

a =

Grayned v. City of Rockford,

en ccc écedieseades 22

Griffin v. Sec’y of Veterans Affairs,

288 F.3d 1309 (Fed. Cir. 2002) ....... 11, 12, 20

Hill v. Colorado,

el do os ee eda wh oe e 16

In re Tam,

808 F.3d 1321 (Fed. Cir. 2015) ............. 13

Kusper v. Pontikes,

SEED 9 wesc ch ene deenue es peedes 4

Marlin v. D.C. Bd. Of Elections & Ethics,

236 F.3d. 716 (D.C. Cir. 2000) ........... 10, 24

Matal v. Tam,

ee EE . c so bate 3-6 @ 00 0 es 12, 13

Mills v. Alabama,

I oo a caaawvasiekewkes 18

Minn. Majority v. Mansky,

789 F. Supp. 2d 1112 (D. Minn. 2011) ... passim

Minn. Majority v. Mansky,

708 F.3d 1051 (8th Cir. 2013) .......... 8, 9, 12

Monitor Patriot Co. v. Roy,

oc ab tc¥.n biewle ee ee e's 3

NAACP v. Button,

ee ee I as oo cine ss Na @aeececewees 4

Picray v. Secretary of State,

I occ cc ren cancevesces 25

Police Department of Chicago v. Mosley,

et a ded s'naes ase eee 3

Preminger v. Sec’y of Veterans Affairs,

517 F.3d 1290 (Fed. Cir. 3006) ............. 20

Reed v. Purcell,

2010 U.S. Dist. LEXIS 121207 (D. Ariz. 2010) . 10

Reed v. Town of Gilbert,

IS 4,13

Ridley v. Mass. Bay Trans. Auth.,

390 F.3d 65 (1st Cir. 2004) .......... 10, 11, 12

Schall v. Martin,

a re ewe Oa eds 13

Schirmer v. Edwards,

re re ee eenednws 23

Sentinel Communications Co. v. Waits,

668 F.38 1168 (11th Cie. 1902) .........20.. 12

Shelton v. Tucker,

ah ds cues wee eed 27

Sistrunk v. City of Strongsville,

OD 2s BG Ces Coe. PGBS) nw wc ccc ccc cees 20

Thomas v. Collins,

I sy er ee ae 7

Tinker v. Des Moines Indep. Comm. School Dist.,

ET RS pin ey i Sey a 22

United Food & Commercial Workers Local 1099 v.

City of Sidney,

Se Be wee oes Cae. BOE) wo ccc ccc wees 24

Yick Wo v. Hopkins,

5.6 os oe eu 6 oa ere }

Statutes

I 6 oh Co ee ow glaie bean 6

Alaska Stat. § 15.56.016(a(2)(B) ............. 5,6

Ar. Code Ann. § 7-1-103(aX 9A) ........... 4,5,6

Ar. Code Ann. §§ 16-411(H), 16-515(1) ........... 6

eee os cece betecsentes 6, 23

Ce Be, GE Fe bb vce iccccceusceces 6, 23

vii

Ge, SD oe Soa wee been 5,6

| A ee 6

Del. Code Ann. tit.15, § 4942(d) ............. 4, 23

D.C. Code § 1-1001.10(b 12) A) .........6-5. 4,5

Eb Sas ai aks Kagiene cs Oa8 23

A als eds Ud we Oe eer ete hes 5

Ce COR A, BOD oc icc cscneveces 5

Ss NS RIPE ook SSS sd cov ecctevs 5

id va vewess 40 edemeae 4

10 Ill. Comp. Stat. $6/17-26(a) ..........-0005e, 4

10 1. Comup. Stat. § G/7-4ife) . ww cece ccewes 4

Ind. Code Ann. § 3-14-3-16 ................. 4, 23

Iowa Code § 39A.4(1MaM1) 2.0... . cc cece eens 4,6

Kan. Stat. Ann. § 25-2430(a) ............. 5, 6, 23

La. Stat. Ann. § 18:1462(AXM3) ................. 5

Moe. Rev. Stat. tit. 21-A, §@62............. 5, 6, 23

Me. Rev. Stat. tit. 21-A, § 682(3) .............. 23

en ee CN PE is Swe vicleweevicntanes 5

Md. Elec. Law Code Ann. § 16-206(a)(10)...... 4,5

Mich. Comp. Laws § 168.744(3) ............. 5, 23

SD, OU. MINED cc kcdc edn eececen 2, 3, 23

ee, ED bk occ woe cne se cue bes 5

Vili

Be Sa RTE EED ois oc csecepwodweses 6

Mont. Code Ann. § 13-35-211(3) ............. 6, 23

PUR, Bees TE, SRO 6 ve ee sc eccvawesias 5

es ee, Ge OE bo vee bs Seneesees 6, 23

N.H. Rev. Stat. Ann. § 659:43(I) ............. 5, 23

Pe ED vases eccwenenveser 5, 23

i EE, Seva dee sdicevwes caus’ 5

a id cae celeines oe eid 5

Pee A EOD 05s ccc cescevenswass 23

Sei CE I PREG 6 oii oa ccescerucecus 5

N.D. Cent. Code § 16.1-10-06 .................. 6

Ohio Rev. Code § 3501.35(AX1) .............. 5, 6

Se OE, I I ibs ou ree dvetseceness 5

ere ee 5

25 Pa. Cons. Stat. Ann. § 3060(c) .............. 5

Ne Se I COPE ov 5 orien seceses 5, 6, 23

ee A PED hieckncceconcveces 5, 23

RS SS eee 5

Bee, COR A, SB E-RA TD oc cee cccsccecnes 2

Tenn. Code Ann. § 2-7-111(b) (Supp. 1991) ....... 8

Tenn. Code Ann. § 2-7-111(b\1)............. 5, 23

ee ee ee gc ew tvcedionveuss 23

Utah Code Ann. § 20A-3-501(2)(a) .............. 5

We eC EE Rg UNE cha eos evccceces canes 5

Vt. Goat. Ame. G6. 37, § SOGMe) . wc vcccccccene 23

ee Oe I ', w'o'e'o oS abo besos 5

Rev. Code Wash. (RCW) § 29A.84.510(1) ......... 6

ey ED S54 a obi civ d nied ccesen es 6

as Ss wre oe winds ope oe eee 5

CE AG. Vt awben wid me dase ates avee 5

Other Authorities

Richard H. Fallon, Making Sense of Overbreadth,

De Cae a TED «vo cecvevevvccesens 12

Joseph D. Herrold, Note: Capturing the Dialogue:

Free Speech Zones and the “Caging” of First

Amendment Rights, 54 Drake L. Rev. 949

Na ee eae 2 eae Oe a 26, 27

Laurence H. Tribe, American Constitutional Law

I a ag ea 10

Kimberly J. Tucker, Article: “You Can't Wear That

To Vote”: The Constitutionality of State Laws

Prohibiting the Wearing of Political Message

Buttons at Polling Places, 32 T. Marshall L. Rev.

| Ee er ri 16, 17, 22, 24

James J. Woodruff Il, Freedom of Speech & Election

Day at the Polls: Thou Doth Protest Too Much,

65 Mercer L. Rev. 331 (Winter 2014) .... 8,9, 27

http://www.wptv.com/news/region-c-palm-beach-

county/palm-beach/palm-beach-family-says-they-

faced-trouble-at-the-polls-for-wearing-trump-

Se eat ie ced wee ech oc aie oho ewens v4 16

http://nbe4i.com/20 16/10/25/woman-not-allowed-to-

vote-because-of-trump-slirt/ ............... 17

http://nation.foxnews.com/war-

religion/2012/11/01/woman-forced-cover-vote-

IE C's ow 50.0 a8 bw a are © Gers > 17

http.//5newsonline.com/2016/11/07/what-can-you-

bring-to-a-polling-place-cellphones-political-t-

SIN Wars Pus cae crenateetepetsens 17

http://www.chron.com/neighborhood/cyfair-

news/article/Houstonian-wearing-Alaska-T-

shirt-nearly-denied-a-1789897.php.......... 17

https://www.thefire.org/free-speech-zones-then-and-

DE Sat balk ke Wee sdanh suet nee ness eeees 26

Stand Up for Free Speech Litigation Project,

http://www.standupforspeech.com/about/.... . 26

https://www.aclu.org/news/aclu-sues-city-cleveland-

over-rnc-rules-violate-free-speech ........... 27

]

INTEREST OF AMICUS CURIAE'

Justice and Freedom Fund (*JFF”), as amicus

curiae, respectfully urges this Court to reverse the

decision of the Eighth Circuit.

Justice and Freedom Fund is a California non-

profit, tax-exempt corporation formed on September 24,

1998 to preserve and defend the constitutional liberties

guaranteed to American citizens, through education,

legal advocacy, and other means. JFF’s founder is

James L. Hirsen, professor of law at Trinity Law

School and Biola University in Southern California and

author of New York Times bestseller, Tales from the

Left Coast, and Hollywood Nation. Mr. Hirsen is a

frequent media commentator who has taught law

school courses on constitutional law. Co-counsel

Deborah J. Dewart is the author of Death of a

Christian Nation (2010) and holds a degree in theology

(M.A.R., Westminster Seminary, Escondido, CA). JFF

has made numerous appearances in this Court as

amicus curiae.

' The parties have consented to the filing of this brief. Amicus

curiae certifies that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amicus, its

members, or its counsel, has made a monetary contribution to its

preparation or s\ bmission.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Minnesota has enacted a conteni-based statute

restricting core political speech. Minn. Stat.

§ 211B.11(1). This law cannot withstand even minimal

constitutional scrutiny, regardless of forum

classification. There are several serious flaws.

First, the statute and the Election Day Policy

promulgated by election officials both contain wildly

imprecise language. Unlike Burson v. Freeman, 504

U.S. 191 (1992), which limited “campaign” activities

(id. at 193-194, quoting Tenn. Code Ann. § 2-7-111(b)),

Minnesota sweeps in boundless “political” expression,

whether or not related to the current ballot. Such

imprecision grants officials discretion to place

roadblocks in the path of voters who express viewpoints

they dislike.

Second, the rights of voters are the chief reason for

campaign restrictions at the polls. The Tennessee

statute in Burson restricted a particular class of

speakers—campaign workers, not voters. Instead of

protecting voters, Minnesota’s regulation infringes

their rights, both to vote and to express themselves in

a peaceful, non-disruptive manner.

Finally, this case is about passive, non-verbal

expression (t-shirts, buttons), not the active expression

at issue in Burson (distribution of campaign materials

or solicitation of signatures). There is only a tenuous

link between the Minnesota regulation and the

intimidation, coercion, and election fraud that polling

restrictions are designed to prevent.

ARGUMENT

I. THE STATUTE IS A CONTENT-BASED

RESTRICTION ON CORE POLITICAL

SPEECH THAT GRANTS EXCESSIVE

DISCRETION TO OFFICIALS AND

CREATES AN UNREASONABLE RISK OF

VIEWPOINT DISCRIMINATION.

Like the statute at issue in Burson, Minn. Stat.

§ 211B.11(1) “implicates . . . central concerns in our

First Amendment jurisprudence,” including the

“regulation of political speech . . . based on the content

of the speech.” Burson, 504 U.S. at196 (emphasis

added). Political speech is unquestionably at the core of

the First Amendment. “|T]he First Amendment ‘has its

fullest and most urgent application’ to speech uttered

during a campaign for political office.” Eu v. San

Francisco Cty. Democratic Central Comm., 489 U.S.

214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401

U.S. 265, 272 (1971)). “[D)iscussion of public issues and

debate on the qualifications of candidates are integral

to the operation of the system of government

established by our Constitution.” Buckley v. Valeo, 424

U.S. 1, 14 (1976).

The government may not restrict speech because of

“its message, its ideas, its subject matter, or its

content.” Police Department of Chicago v. Mosley, 408

U.S. 92, 95 (1972). Minnesota has enacted an

admittedly “content-based regulation because it only

prohibits badges, buttons, and insignia with a political

message.” Minn. Majority v. Mansky, 789 F. Supp. 2d

1112, 1120(D. Minn. 2011). It applies to all viewpoints

but censures “an entire topic”—political speech. Cons.

Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 537

(1980); Burson, 504 U.S. at 197; Reed v. Town of

Gilbert, 135 S. Ct. 2218, 2223 (2015).

A. The Statute Is Imprecise, Granting

Officials Broad Discretion To Determine

What Is “Political” And Turn Voters

Away.

In today’s politically polarized atmosphere,

legislators must guard against overstepping

constitutional bounds. “Precision of regulation must be

the touchstone in an area so closely touching our most

precious freedoms.” NAACP v. Button, 371 U.S. 415,

438 (1963). Minnesota’s broad regulatory scheme is a

prime example of the imprecision that characterizes

many state laws regulating speech at the polls. It

sweeps in benign, passive expression. Instead of

choosing “a less drastic way of satisfying its legitimate

interests,” Minnesota has enacted “a legislative scheme

that broadly stifles the exercise of fundamental

personal liberties.” Kusper v. Pontikes, 414 U.S. 51, 58-

59 (1973).

Virtually all states apply some restrictions around

polling places. Terminology varies. Many use the word

“electioneering,” but definitions and breadth vary

widely.” Some states, as in Burson, use the term

* Ar. Code Ann. § 7-1-103(a) (9) (A); Del. Code Ann. tit.15, § 4942(d)

(includes wearing items referring to “issues” or “partisan topics,”

and “political discussion of issues” as well as candidates or

“partisan topics”); D.C. Code § 1-1001.10(b\ 12 A); Idaho Code

§ 18-2318(1); 10 Ill. Comp. Stat. § 5/17-29%a) (“electioneering or

soliciting of votes or engaging in any political discussion”); 10 II.

Comp. Stat. § 5/7-41(c); Ind. Code Ann. § 3-14-3-16 (extends to

clothing, buttons); lowa Code § 39A.4(1)a)(1); Md. Elec. Law Code

“campaign.” Other states, like Minnesota, employ the

term “political. A few of these states utilize both

“campaign” and “political.”” Other states use more

general language,° or even loitering laws.’

Ann. § 16-206(a) (10); Neb. Rev. Stat. § 32-1524(2); N.M. Stat. Ann.

§ 3-8-77A; N.Y. Elec. Law § 8-104; Okl. Stat. tit. 26, § 7-108; Or.

Rev. Stat. § 260.695(2) (“electioneering need not relate to the

election being conducted”); 25 Pa. Cons. Stat. Ann. § 3060(c); Utah

Code Ann. § 20A-3-501(2\a) (oral, printed, or written); Wyo. Stat.

§ 22-26-113 (“any form of campaigning”); Wis. Stat. § 12.03 (“any

activity which is intended to influence voting at an election”).

* Ar. Code Ann. § 7-1-103(a\9)(A); Me. Rev. Stat. tit. 21-A, § 682;

D.C. Code § 1-1001.10(b\ 12) A); Fla. Stat. § 102.031(4); Ga. Code

Ann. § 21-2-414(a); Haw. Rev. Stat. § 11-132(d); Kan. Stat. Ann.

§ 25-2430(a); La. Stat. Ann. § 18:1462(A\(3); Md. Elec. Law Code

Ann. § 16-206(a) (10); N.H. Rev. Stat. Ann. § 659:43(1); N.M. Stat.

Ann. § 3-8-77A; N.C. Gen. Stat. § 163A-1134; Ohio Rev. Code

§ 3501.35(A\(1); S.C. Code Ann. § 7-25-180; S.D. Codified Laws

§ 12-18-3; Tenn. Code Ann. § 2-7-111(b\(1) (upheld in Burson); Vt.

Stat. Ann. tit. 17, § 2508; Va. Code Ann. § 24.2-604(D); Wyo. Stat.

§ 22-26-113 (also regulates “electioneering”).

* Alaska Stat. § 15.56.016(a)(2\(B); Fla. Stat. § 102.031(4); NJ.

Stat. Ann. § 19:34-19; N.Y. Elec. Law § 8-104 (“political banner,

button, poster, placard”); N.C. Gen. Stat. § 163A-1134; R.I. Gen.

Laws § 17-19-49; S.C. Code Ann. § 7-25-180; Vt. Stat. Ann. tit. 17,

§ 2508.

* Fla. Stat. § 102.031(4); N.C. Gen. Stat. § 163A-1134 (campaign

literature and political advertising); S.C. Code Ann. § 7-25-180

(campaign literature and political posters); Vt. Stat. Ann. tit. 17,

§ 2508 (campaign literature and political materials).

* Conn. Gen. Stat. § 9-236(a); Mass. Gen. laws ch. 54, § 65; Mich.

Comp. Laws § 168.744(3) (“post, display, or distribute” any

material that “directly or indirectly makes reference to an election,

a candidate, or a ballot question”); Miss. Code Ann. § 23-17-55

Some states—but not Minnesota—use broad terms

like “political” or “campaign” but restrict the reach of

their statutes to the candidates, political parties, and

measures that are on the ballot." These criteria help

curb the potential for unbridled discretion.

The bare term “political,” without a limiting

definition or other guidance, is highly susceptible to

improper discretion. The District Court admitted to

“the potential for innumerable issues to become

political . . . because of an ongoing national debate,

local controversy, or relevance to an issue or candidate

on the ballot.” Minn. Majority, 789 F. Supp. 2d at 1128.

The statute “does not include a definition of political”

(id. at 1125) yet the court determined it was “easily

understood” and “not vague” (id. at 1126). Definitions

for “political badge, political button, or other political

insignia” were left to election judges, who drafted an

Election Day Policy using examples they admit are not

all-inclusive:

(“unlawful . . . to distribute or post material in support of or in

opposition to a measure” within the defined area); Rev. Code Wash.

(RCW) § 29A.84.510(1).

’ Code of Ala. § 17-9-50; lowa Code § 39A.4(1)(a)\(1); Ohio Rev. Code

§ 3501.35(A\(1); W. Va. Code § 3-1-37(a).

* Alaska Stat. § 15.56.016(a)(2)B) (“political”); Ar. Code Ann. § 7-1-

103(a) (9) (A) (“campaign”); Ar. Code Ann. §§ 16-411(H), 16-515(1);

Cal. Elec. Code §§ 18370, 319.5; Colo. Rev. Stat. 1-13-714(1); Conn.

Gen. Stat. § 9-236(a); Kan. Stat. Ann. § 25-2430(a) (“campaign”);

Me. Rev. Stat. tit. 21-A, § 682 (“campaign); Mo. Rev. Stat.

§ 115.637(18); Mont. Code Ann. § 13-35-211(3); Nev. Rev. Stat.

§ 293.740; N.D. Cent. Code § 16.1-10-06 (prior version of this

statute was found too broad in Emineth v. Jaeger, 901 F. Supp. 2d

1138 (D. N.D. 2012)); R.I. Gen. Laws § 17-19-49 (“political”).

e Any item including the name of a political party

in Minnesota, such as Republican, DFL,

Independence, Green, or Libertarian parties.

e Any item including the name of a candidate at

any election.

e Any item in support of or opposition to a ballot

question at any election.

¢ Issue oriented material designed to influence or

impact voting (including specifically the “Please

1.D. Me” buttons).

¢ Material promoting a group with recognizable

political views (such as the Tea Party,

MoveOn.org, and so on).

Id. at 1118 (emphasis added). The possibilities are

endless. These “vague limiting construction|s] . . . give

lelection| officials alone the power to decide in the first

instance whether a given activity is |political|.” Bd. of

Airport Commissioners v. Jews for Jesus, 482 U.S. 569,

576 (1987). Does “any election” include past and/or

future elections? Would “group|s| with recognizable

political views” sweep in _ religious or other

organizations with convictions about contentious issues

like abortion? What about satire, or past political

slogans slightly altered (“Make America ___ Again”)?

Such lack of clarity “compel|s| the speaker to hedge and

trim” (Thomas v. Collins, 323 U.S. 516, 535 (1945)),

perhaps by wearing plain clothing with no messages,

lettering, pictures, or even colors that might identify a

political party or ideology. Even when voters display

lettering unrelated to any political issue or campaign,

there can still be confusion. In 2012, poll workers in

Colorado and Florida banned student voters wearing

Massachusetts Institute of Technology (M.LT.)

sweatshirts, confusing “M.I.T.” with candidate Mitt

Romney. James J. Woodruff Il, Freedom of Speech &

Election Day at the Polls: Thou Doth Protest Too Much,

65 Mercer L. Rev. 331, 332 n. 5, 366 n. 270, 367 n. 271-

273 (Winter 2014).

Minnesota’s use of the term “political” contrasts

with Tennessee’s use of the more limited word

“campaign” in the statute this Court upheld in Burson.

That statute provides in relevant part:

Within the appropriate boundary as established

in subsection (a) [100 feet from the entrances],

and the building in which the polling place is

located, the display of campaign posters, signs or

other campaign materials, distribution of

campaign materials, and solicitation of votes for

or against any person or political party or

position on a question are prohibited.

Burson, 504 U.S. at 193-94 (emphasis added) (quoting

Tenn. Code Ann. § 2-7-111(b) (Supp. 1991)). This Court

emphasized that Burson was a “rare case.” Id. at 211.

It does not support a ban on voters wearing “political

insignia” to the polls. See Minn. Majority v. Mansky,

708 F.3d 1051, 1061-62 (8th Cir. 2013) (Shepherd, J.,

dissenting). As this Court explained, “|w|hether

individuals may exercise their free speech rights near

polling places |under the Tennessee statute] depends

entirely on whether their speech is related to a political

campaign.” Id., quoting Burson, 504 U.S. at 197

(emphasis added). Moreover, as Justice Stevens

observed in his dissent, the Tennessee statute “silences

all campaign-related expression, but allows expression

on any other subject: religious, artistic, commercial

speech, even political debate and solicitation concerning

issues or candidates not on the day’s ballot.” Minn.

Majority v. Mansky, 708 F.3d at 1061-62 (Shepherd, J.,

dissenting), quoting Burson, 504 U.S. at 223 (Stevens,

J., dissenting) (emphasis added). Commentators have

noted the potential abuse inherent in the term

“political material” as contrasted with “campaign

material,” including “the name of a religious school” or

common phrases such as “God Bless America,” “Live

Free or Die,” and “Support Our Troops.” Freedom of

Speech & Election Day, 65 Mercer L. Rev. at 346 n. 120,

121. Even the colors red and blue, associated with the

two major political parties, could be swept in. /d. at n.

122.

The broad language of Minnesota’s Election Day

Policy also captures “issue oriented material designed

to influence or impact voting,” with the “Please I.D.

Me” buttons as an example. “Issue advocacy conveys

information and educates.” FEC v. Wisconsin Right to

Life, 551 US. 449, 470 (2007). But “what separates

issue advocacy and political advocacy is a line in the

sand drawn on a windy day.” /d., at 499 (internal

citations and quotation marks omitted). Candidates

and issues are often intertwined, and “laws targeting

political speech are the principal object of the First

Amendment guarantee.” Jd. at 494. The blurred line

between political and issue advocacy “is an indictment

of the statute, not a justification of it.” Jd. Adding

“issue oriented material” to the list of prohibitions only

heightens the constitutional flaws.

B. Forum Analysis Does Not Salvage The

Statute.

Challenges to Election Day speech restrictions often

turn on the nature of the forum. Litigants are more

likely to succeed in a public forum. “The Constitution

abhors the misuse of discretion as a license for

arbitrary procedure. .... None of the training manuals

give a precise definition of ‘electioneering.” Reed v.

Purcell, 2010 U.S. Dist. LEXIS 121207, *9 (D. Ariz.

2010) (public forum) (granting temporary restraining

order). In anonpublic forum, challenges are more likely

to fail, e.g., Marlin v. D.C. Bd. Of Elections & Ethics,

236 F.3d. 716, 718 (D.C. Cir. 2000) (nonpublic forum)

(unsuccessful challenge to Board’s broad definition of

“political activity”).

But forum analysis is not conclusive and may not be

the best approach in this case. See, e.g., Ridley v. Mass.

Bay Trans. Auth., 390 F.3d 65, 97 (1st Cir. 2004)

(Tortuella, J., dissenting), citing Laurence H. Tribe,

American Constitutional Law § 12-24, at 988 (2d ed.

1988) (deeming “public forum classifications .. .

unnecessary and unhelpful” in challenges to content-

based restrictions). Even in cases involving nonpublic

fora, a policy that does not provide sufficient criteria to

prevent viewpoint discrimination generally will not

survive constitutional scrutiny:

It is clearly unconstitutional to enable a public

official to determine which expressions of view

will be permitted and which will not or to engage

in invidious discrimination among persons or

groups either by use of a statute providing a

system of broad discretionary licensing power or,

as in this case, the equivalent of such a system by

selective enforcement of an extremely broad

prohibitory statute.

Cox v. La., 379 U.S. 536, 557-558 (1965) (emphasis

added). Minnesota has enacted a “broad prohibitory

statute” that should be ruled unconstitutional

regardless of forum classification.

Burson held that the Tennessee statute “bar[red)

speech in quintessential public forums.” Burson, 504

U.S. at 197. In a public forum, the government has an

uphill battle to justify speech restrictions, but may

enact reasonable time-place-manner regulations.

Minnesota’s restriction applies for a short time in a

small space, so at first blush it may appear to fall

within that framework. But because it is content-based,

it cannot qualify even if the space is a nonpublic forum.

“(T|his approach . . . would require some expansion of

(or a unique exception to) the ‘time, place, and manner’

doctrine, which does not permit restrictions that are

not content neutral (§ 2-7-111 prohibits only

electioneering speech).” Jd. at 216 (Scalia, J.,

concurring). In Burson, the majority agreed that the

statute was “not a facially content-neutral time, place,

or manner restriction.” Jd. at 197.

Discretion per se is not “constitutionally fatal.”

Minn. Majority, 789 F. Supp. 2d at 1126, citing Ridley,

390 F.3d at 93 (“mere fact that a regulation requires

interpretation does not make it vague”). In a nonpublic

forum, discretion “must be upheld so long as it is

reasonable in light of the characteristic nature and

function of that forum.” Jd. at 95 (internal quotation

marks omitted); Griffin v. Sec’y of Veterans Affairs, 288

F.3d 1309, 1323-24 (Fed. Cir. 2002) (selectivity and

discretionary access are “defining characteristics of

non-public fora”). But viewpoint discrimination is

impermissible in any forum, and “[|wjhen a statute

sweeps more broadly than is warranted by the evil at

which it aims, a concern arises that the legislature .. .

has created an excessively capacious cloak of

administrative or prosecutoria! discretion, under which

discriminatory enforcement may be hidden.” Richard

H. Fallon, Making Sense of Overbreadth, 100 Yale L.dJ.

853, 884 (1991). Here, the statute “applies to all

political material, regardless of viewpoint” (Minn.

Majority, 708 F.3d at 1057), but underlying this facial

neutrality is a weapon inviting officials to favor (or

disfavor) particular viewpoints. In Ridley, officials

rejected religious advertisements based on a policy that

prohibited “demeaning or disparaging” content. Ridley,

390 F.3d at 74. Such a policy creates a wide loophole for

officials to censure viewpoints they dislike. This Court

recently struck down a similar weapon on First

Amendment grounds—the “disparagement” provision

of federal trademark law. See Matal v. Tam, 137 S. Ct.

1744 (2017).

The Federal Circuit observed that no case in this

Court suggests the doctrine of unbridled discretion is

“applicable outside the setting of a public forum,” and

there is thus “no accepted framework” to evaluate such

a challenge in a nonpublic forum.” Griffin, 288 F.3d at

1321-22. But “several cases from [other] circuits|| have

struck down standardless licensing schemes in

nonpublic fora.” Jd. at 1323. See, e.g., Sentinel

Communications Co. v. Watts, 936 F.2d 1189 (11th Cir.

1991) (invalidating Florida scheme giving unfettered

discretion over placement of newspaper racks in

highway rest areas). Unfettered discretion poses

constitutional risks in any forum.

The Minnesota statute is also “not a licensing

system allowing the regulation of speech in a public

forum.” Minn. Majority, 789 F. Supp. at 1128. That is

a common context where unbridled discretion is

condemned—but certainly not the only context. “A

principle underlying many of our prior decisions in

various doctrinal settings is that government officials

may not be accorded unfettered discretion in making

decisions that impinge upon fundamental rights.”

Schall v. Martin, 467 U.S. 253, 306-307 (1984)

(Marshall, J., dissenting). It is particularly relevant to

content-based regulations. This Court recently noted

the possibility of “a Sign Code compliance manager

who disliked the Church’s substantive teachings

deploying the Sign Code to make it more difficult for

the Church to inform the public of the location of its

services.” Reed v. Town of Gilbert, 135 S. Ct. at 2229

(content-based sign code subject to strict scrutiny). The

trademark provision this Court invalidated in Matai v.

Tam gave the government carte blanche to render a

“moral judgment|| based solely and indisputably on its

moral judgment{| about the mark|‘s} expressive

content.” In re Tam, 808 F.3d 1321, 1338 (Fed. Cir.

2015). Here, Minnesota empowers election officials to

deny the fundamental right to vote to prospective

voters whose outward apparel displays a disfavored

political view.

Il. THESTATUTE IMPEDES THE RIGHTS OF

VOTERS INSTEAD OF PROTECTING

THEM.

This case is principally about the rights of

voters—their right to vote and their right to political

expression. The state interests at stake are designed to

protect those rights. The wide discretion granted to

Minnesota officials risks infringing them:

Although the state may adopt “reasonable and

uniform regulations” regarding the “time and

mode of exercising” the right to vote, that

“afford|s} no warrant for such an exercise of

legislative power, as, under the pretense and

color of regulating, should subvert or injuriously

restrain the right itself.”

Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886), quoting

Capen v. Foster, 29 Mass. 485, 489 (1832).

A. The Rights Of Voters Are Paramount—

The Right To Vote And The Right To

Political Expression.

It is vital to distinguish voters, candidates,

campaign workers, poll workers, and other election

participants. Although the government has “a

compelling interest in securing the right to vote freely

and effectively” (Burson, 504 U.S. at 208), it is the voter

who holds that right, as well as the right to choose

when, where, and/or if to express political views.

Perhaps voters would be wise to avoid outward signs of

political affiliation at the polls, but that is an

individual choice. No voter should be turned away or

prosecuted for engaging in the passive expression

Minnesota prohib.'«

In Minnesota, election judges were instructed not to

turn away voters who failed to cover their political

paraphernalia, but “their names and addresses would

be recorded and referred ‘to appropriate authorities.”

Minn. Majority, 789 F. Supp. 2d at 1118. Voters face an

untenable choice—either sacrifice the right to vote or

the right to expression. Neither option is

constitutionally acceptable. The right to vote is a

“fundamental political right, because preservative of all

rights.” Yick Wo v. Hopkins, 118 U.S. at 370. Freedom

of expression is equally important, “especially

expression of political views, [which] ranks near the top

of the hierarchy of constitutional rights.” Cohen v.

California, 403 U.S. 15, 24 (1971).

The rights of voters are primarily at stake in

Minnesota, not the rights of others involved in

elections. Sometimes the rights of candidates are also

impacted by this type of statute. This Court described

Burson as “a particularly difficult reconciliation: the

accommodation of the right to engage in political

discourse with the right to vote — a right at the heart of

our democracy.” Burson, 504 U.S. at 198. But the

action in Burson was not filed by a voter whose rights

were infringed, but by a candidate for office. Jd. at 194.

It was a candidate’s “right to engage in political

discourse” that hung in the balance. The Tennessee

Supreme Court observed that the statute regulated “a

certain category of speakers, campaign workers.”

Freeman v. Burson, 802 S.W.2d 210, 213 (Tenn. 1990).

Candidate rights are important, but they do not

coincide perfectly with the rights of voters. In Burson,

there was an impact on last-minute campaigning,

especially for “candidates with fewer resources,

candidates for lower visibility offices, and grassroots

candidates.” Burson, U.S. 504 at 224 (Stevens, J.,

dissenting). Areas near the polls may serve as “a forum

of last resort” for these candidates. See Hill v.

Colorado, 530 U.S. 703, 763 (2000) (Scalia, J.,

dissenting). At the same time, this Court observed

there was ample evidence that political candidates

have used campaign workers to commit voter

intimidation or electoral fraud—evils that the state

legitimately seeks to reduce. Burson, U.S. 504 at 207.

In this case, the concern is not about candidate rights,

but solely about what voters may wear to the polls.

Past elections reveal a multitude of voters having

trouble gaining access to the polls because of what they

were wearing. Kimberly J. Tucker, Article: “You Can't

Wear That To Vote”: The Constitutionality of State

Laws Prohibiting the Wearing of Political Message

Buttons at Polling Places, 32 T. Marshall L. Rev. 61,

82-83 (Fall 2006). The author described her own

frustration at the Virginia polls in 2004, where she was

asked to remove her John Kerry button and even

threatened with arrest when she initiated a

conversation about the First Amendment. /d. at 61. In

Virginia, instructions varied from county to county,

with some calling for removal of buttons (id. at 83 n.

197-198) and others considering it a “matter of free

speech” (id. n. 199-200). Voters in South Carolina were

told to remove their pro-Bush buttons in the polling

area. Id. at 83 n. 194. Voters in both Florida’ and New

* http:/Awww.wptv.com/news/region-c-palm-beach-county/palm-

beach/palm-beach-family-says-they-faced-trouble-at-the-polls-for-

wearing-trump-shirts (last visited 12/27/17). Florida law does not

explicitly prohibit such apparel.

Mexico’’ faced extra hurdles at the polls when they

showed up for the November 2016 election wearing

Trump shirts. One woman trying to vote in Austin, TX

in 2012 was compelled to cover her “Vote the Bible”

shirt in order to vote.'' Even shirts “reminiscent of a

party” —“I Miss Bill” — were censured at Arkansas polls

in 2016." Adding to the confusion, non-political

paraphernalia is sometimes mistaken for campaign

material—Dallas Cowboys apparel in Texas when a

stadium-finance issue was on the ballot and Denver

Broncos items in Colorado when a stadium tax issue

was on the ballot. Jd. at 84. Even more bizarre, a voter

in Houston, TX in 2008 almost lost her ability to vote

because she wore a souvenir Alaska shirt ti ut was

misconstrued as support for Sarah Palin.’

These examples are all about voters—not aggressive

campaign workers trying to secure votes or seeking

signatures for a new ballot measure. It seems strange,

and blatantly unconstitutional, that a policy meant to

" http://nbe4i.com/20 16/10/25/woman-not-allowed-to-vote-because-

of-trump-shirt/ (last visited 12/27/17). New Mexico limits

“electioneering” but does not expressly forbid wearing buttons,

shirts, or similar items.

" http//nation.foxnews.com/war-religion/2012/1 1/0 l/woman-forced-

cover-vote-bible-t-shirt-polls (last visited 12/27/17).

http://5newsonline.com/20 16/1 1/07/what-can-you-bring-to- .-

polling-place-cellphones-political-t-shirts-children/ (last visited

12/27/17).

'* http://www.ch on.com/neighborhood/cyfair-

news/article/Houstonian-w earing-Alaska-T-shirt-nearly-denied-a-

1789897.php (last visited 12/27/17).

protect voters would be used to impede their access to

the polls.

B. The State’s Interests Are Subservient To

The Rights Of Voters.

Several important state interests have been

advanced to justify campaign-free zones in areas

immediately surrounding the polls:

¢ “the right of . . . citizens to vote freely for the

candidates” (Burson, 504 U.S. at 198)

¢ “the right to vote in an election conducted with

integrity and reliability” (id. at 199)

¢ “protecting voters from confusion and undue

influence” (id.)

¢ “preventing voter intimidation and election

fraud” (id. at 206)

¢ “protect the integrity and reliability of the

electoral process itself” (Anderson v. Celebrezze,

460 U.S. 780, 788, n. 9 (1983) (collecting cases))

¢ “maintain|ing] peace, order, and decorum” at the

polls (Mills v. Alabama, 384 U.S. 214, 218

(1966))

All of these important state interests are designed to

serve the voters and protect their right to vote freely

and peacefully when they go to the polls. Voters also

have the right to be fully informed as they cast their

ballots. Although elections should be conducted in an

orderly manner, this Court held that the state does not

have a legitimate interest ir insulating voters from

Election Day campaigning. Mills v. Alabama, 384 U.S.

at 219 (overturning conviction of newspaper editor who

violated ban on election day editorial endorsements).

Minnesota’s regulation of apparel and buttons does

not fit the state’s legitimate interests. As Judge

Shepherd put it in his dissent:

I fail to see how this broad restriction, which

prohibits a voter from wearing any political

emblem, insignia, or slogan that is unrelated to

an issue or candidate on the ballot, would

rationally and reasonably help maintain the

“peace, order, and decorum” of the polling place,

“protect|| voters from confusion or undue

influence,” or “preservile|] the integrity of

|Minnesota’s} election process.”

Minn. Majority, 708 F.3d at 1062 (Shepherd, J.,

dissenting). The connection between the regulation and

the interests served is tenuous at best. It is hardly

disruptive to the election process for a voter to quietly

approach the ballot box wearing a shirt or button an

official deems “political,” according to Minnesota's

nebulous standard. The state may not unnecessarily

restrict constitutionally protected liberties even in

pursuit of legitimate interests. Anderson v. Celebrezze,

460 U.S. at 806. The infringement is even more

egregious where the state pursues illegitimate

interests. See Anderson v. Spear, 356 F.3d 651, 658

(6th Cir. 2004) (500-foot buffer zone around polling

places was facially overbroad where the evidence

suggested the government intended to cut off all

electioneering speech rather than to prevent voter

intimidation and corruption).

Under narrowly defined circumstances, depending

on the place or the government’s role, it may be

appropriate to limit political expression—even on

clothing or accessories. It may depend on the place, and

often other rights or legal doctrines are implicated:

¢ Courtroom - Berner v. Delahanty, 129 F.3d 20,

27 (1st Cir. 1997) (upholding trial judge’s order

for attorney to remove political button in the

courtroom, which must be an absolutely fair and

neutral environment)

¢ Political Rally - Sistrunk v. City of Strongsville,

99 F.3d 194 (6th Cir. 1996) (upholding ban on

wearing pins for opposing candidate |Clinton| at

a political rally [Bush]) (implicates rights of

association )

¢ VA Medical Centers - Preminger v. Sec’y of

Veterans Affairs, 517 F.3d 1299, 1314 (Fed. Cir.

2008) (rejecting unbridled discretion challenge to

ban on “demonstrations” at VA Medical Centers

in light of the need “to maintain a place of

healing and rehabilitation for veterans”)

¢ National Cemeteries - Griffin, 288 F.3d at 1324-

1325 (veterans denied right to display

Confederate flag in national cemetery because

the government had reasonable discretion to

ensure preservation of the commemorative

functions of national cemeteries) (implicates

government speech)

Sometimes the government does not act as a regulator,

but assumes another role:

¢ Employer - Broadrick v. Oklahoma, 413 U.S.

601, 618 (1973) (upholding restriction on

political expression of state employees during

working hours, including political buttons and

bumper stickers)

¢ Editor - Arkansas Educ. Television Comm'n v.

Forbes, 523 U.S. 666 (1998) (candidate debate)

(editorial discretion to restrict debates to

candidates who received objective support from

the public)

¢ Editor for Dept. of Defense Publications - Bryant

v. Gates, 532 F.3d 888 (D.C. Cir. 2008) (rejecting

vagueness challenge to political ad ban in DOD

publication) (implicates government speech)

Polling places are a unique environment. While some

restrictions on active campaigning may be needed to

preserve an orderly process for voters, Minnesota’s

broad ban on political apparel tends to imperil the

rights of voters rather than protecting those rights.

C. The Passive Speech Of Voters Is Not An

Appropriately Targeted Evil.

Minnesota appears more concerned about voters

who might be intimidated by the mere sight of a button

or t-shirt on another voter, rather than voters who may

be turned away from the polls because of the passive

expression on their clothing or accessories:

The Court concludes that prohibiting apparel

that expresses support for a political ideology is

reasonably related to the legitimate state

interest of “maintainling| peace, order, and

decorum” at the polls.

Minn. Majority, 789 F. Supp. 2d at 1124 (following a

discussion concluding that the Tea Party is “political”

and the “Please 1.D. Me” pins might confuse voters).

This conclusion is astounding in light of the passive

nature of t-shirts, buttons, and similar items. Clothing

is a means of communication protected by the First

Amendment. See Cohen v. California, 403 U.S. 15 (t-

shirt containing offensive expletive). This Court has

warned that a complete ban on a species of

communication “can be narrowly tailored . . . only if

each activity within the proscription’s scope is an

appropriately targeted evil.” Frisby v. Schultz, 487 U.S.

474, 485 (1988) (upholding residential picketing

ordinance) (emphasis added). Unlike the ordinance in

Grayned v. City of Rockford, 408 U.S. 104 (1972), which

punished only disruptive conduct around schools in

session, Minnesota punishes passive, peaceful

expression without any evidence of disruption,

coercion, undue influence, intimidation, fraud, or

similar results. This is contrary to “our system, [where]

undifferentiated fear or apprehension of disturbance is

not enough to overcome the right to freedom of

expression.” Tinker v. Des Moines Indep. Comm. School

Dist., 393 U.S. 503, 508 (1969). Just as the students in

Tinker did not surrender their First Amendment rights

at the school gate, “voters do not surrender such rights

at the polling room door.” “You Can’t Wear That To

Vote”, 32 T. Marshall L. Rev. at 81 (emphasis added).

Many states have either enacted “button” laws or

applied broad statutes to prohibit passive expression.‘

Some of them include language that would limit

government discretion, such as_ restricting the

prohibition to candidates or measures on the ballot.'”

Unfortunately, a few courts have upheld these

restrictions on passive expression. The Fifth Circuit

upheld Louisiana’s “total ban on politicking,” including

“buttons and T-shirts,” within a 600-foot radius of the

polling place. Schirmer v. Edwards, 2 F.3d 117, 122-23

(5th Cir. 1993). In Michigan, a district court upheld a

directive allowing election inspectors to ask Michigan

voters to remove campaign buttons or cover up clothing

bearing a campaign slogan or candidate’s name, while

admitting that “the wearing of political paraphernalia

is speech protected by the First Amendment.”

AFSCME, Council 25 v. Land, 583 F. Supp. 2d 840, 847

(E.D. Mich. 2008). The D.C. Circuit upheld regulations

* Cal. Elec. Code §§ 18370, 319.5; Del. Code Ann. tit.15, § 4942(d)

(includes items referring to “issues”); 3 D.C.M.R. § 708.8 (Board

regulation applied statute to apparel); Ind. Code Ann. § 3-14-3-16;

Kan. Stat. Ann. § 25-2430(a); Me. Rev. Stat. tit. 21-A, § 682(3);

Mich. Comp. Laws § 168.744(3); Minn. Stat. § 211B.11(1); Mont.

Code Ann. § 13-35-211(3); Nev. Rev. Stat. § 293.740; N.H. Rev.

Stat. Ann. § 659:43(1); N.J. Stat. Ann. § 19:34-19 (may not display,

sell, give or provide badge, button, or other items to be worn); N.Y.

Elec. Law § 8-104(1); R.1. Gen. Laws § 17-19-49; S.C. Code Ann.

§ 7-25-180; Tenn. Code Ann. § 2-7-111(b\(1); Tex. Elec. Code

§ 61.010(a); Vt. Stat. Ann. tit. 17, § 2508(a).

" Cal. Elec. Code § 319.5; Kan. Stat. Ann. § 25-2430(a); Me. Rev.

Stat. tit. 21-A, § 682(3) (expressly allows small buttons with

longest dimension not to exceed 3 inches); Mont. Code Ann. § 13-

35-211(3); Nev. Rev. Stat. § 293.740; R.I. Gen. Laws § 17-19-49;

Tex. Elec. Code § 61.010(a).

promulgated by Board of Elections that prohibited

wearing political paraphernalia inside a polling place.

Marlin, 236 F.3d. at 718.

It is particularly disturbing to observe the broad

discretion granted to officials in the Michigan and D.C.

cases, even in the absence of an express statutory

prohibition on apparel. In states like Minnesota, where

the statutory language has no limiting criteria, the law

potentially allows election officials to deny the vote to

persons whose button or t-shirt is unrelated to any

current candidate or ballot issue. Any group with

“identifiable political views” could include a religious

group or other association with strong views about

current issues. Some of the most controversial

“political” topics of modern times have significant

moral and religious implications for voters.

Passive political expression is not tantamount to the

active campaigning at issue in Burson and other cases.

Distribution of campaign materials to voters, or

actively soliciting their signatures, is hardly

comparable to passive expression by voters. “|S|uch

silent speech does not present the harmful effects that

active campaigning creates on a voter's right to be free

from interference.” “You Can’t Wear That To Vote”, 32

T. Marshall L. Rev. at 80. The Sixth and Eleventh

Circuits have both upheld bans on active solicitation

that could disrupt the voting process. United Food &

Commercial Workers Local 1099 v. City of Sidney, 364

F.3d 738, 748 (6th Cir. 2004) (upholding Ohio’s 100-foot

campaign-free zone that prevented individuals from

soliciting signatures on non-ballot related referendum);

Citizens for Police Accountability Political Comm. v.

Browning, 572 F.3d 1213, 1215 (11th Cir. 2009)

(upholding Florida law that prohibited soliciting

signatures, as voters exit the polls, for proposed city

charter amendment to be placed on a future ballot).

One of the reasons this Court struck down the

sweeping First Amendment activity ban in Jews for

Jesus is that it would reach considerable non-

disruptive speech, including “the wearing of campaign

buttons or symbolic clothing”—a ban that could not be

justified even in a nonpublic forum. Jews for Jesus, 482

U.S. at 575. And just as “|t|he line between airport-

related speech and nonairport-related speech” was “at

best, murky” in that case (id. at 576), the line between

“political” and non-political is like a line in the sand on

a windy day.

The Oregon Supreme Court wisely summarized the

matter:

The mere passive display of a political button or

badge in a polling place does not constitute

“improper conduct” of the sort contemplated in

Article II, section 8. The silent expression of

political opinion is not coercive. To the extent

that such expression in the polling place might

affect the votes of others, that influence cannot

be deemed constitutionally “undue.”

Picray v. Secretary of State, 140 Or. App. 592, 600

(1996).

Wl. THE EIGHTH CIRCUIT RULING

EXACERBATES A DANGEROUS TREND

TO ESTABLISH “FREE SPEECH ZONES”

THAT IMPERIL FIRST AMENDMENT

RIGHTS.

The “campaign free zone” in this case resembles the

free speech zones that originated on college and

university campuses following the student activism of

the 1960s. Joseph D. Herrold, Note: Capturing the

Dialogue: Free Speech Zones and the “Caging” of First

Amendment Rights, 54 Drake L. Rev. 949, 951

(Summer 2006). Some zones capture only protests.

Others attempt to confine all First Amendment activity

to a designated area, effectively silencing free speech.

Free speech zones should have been laid to rest with

this Court’s decision in Jews for Jesus three decades

ago. “On its face, the resolution at issue in this case

reaches the universe of expressive activity, and, by

prohibiting all protected expression, purports to create

a virtual ‘First Amendment Free Zone’ at LAX.” Jews

for Jesus, 482 U.S. at 574. The same is true of free

speech zones, yet the practice has spilled over into

other contexts, including the world of politics.

These constitutionally questionable speech-free

zones have generated a mountain of litigation over the

years, with some measurable progress toward their

elimination on school campuses.'° Public universities,

widely regarded as the “marketplace of ideas,” are one

See, e.g., https://www.thefire.org/free-speech-zones-then-and-

now/ (last visited 12/27/17); Stand Up for Free Speech Litigation

Project, http://www.standupforspeech.com/about/ (last visited

12/27/17)

of the last places where such government censorship

should ever occur. “The vigilant protection of

constitutional freedoms is nowhere more vital than in

the community of American schools.” Shelton v. Tucker,

364 U.S. 479, 487 (1960). The zones enable school

officials “to keep undesired or unpopular expressive

activity out of mainstream campus life.” Capturing the

Dialogue, 54 Drake L. Rev. at 956. In recent years,

even political conventions’’ and polling places have

followed the trend, creating similar opportunities for

officials to abuse discretion and suppress disfavored

viewpoints. “Political-free zones .. . create[| an

atmosphere that is completely sterilized of any political

messaging.” Freedom of Speech & Election Day, 65

Mercer L. Rev. at 343. In “politically restricted zones”

there is more flexibility and “voters are allowed to wear

campaign, party, or initiative paraphernalia.” /d.

Minnesota has created a highly restrictive zone using

a policy that grants election officials free reign to chill

voter expression based solely on the silent messages

displayed on the buttons and clothing of voters.

"' Capturing the Dialogue, 54 Drake L. Rev. at 949 (government-

imposed free speech zones widely reported in the media during

2004 Democratic and Republic National Conventions);

https://www.aclu.org/news/aclu-sues-city-cleveland-over-rnc-rules-

violate-free-speech (last visited 12/27/17).

CONCLUSION

For all of the foregoing reasons, the Minnesota

statute should be declared unconstitutional and this

Court should reverse the Eighth Circuit ruling.

Respectfully submitted,