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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

No. 16-1435
In the Supreme Court of the Gnited States

MINNESOTAVOTERS ALLIANCE, et ail.,
Petitioners,

Vv.

JOE MANSKY, IN HIS OFFICIAL CAPACITY AS ELECTIONS

MANAGER FOR Ramsey County, et ai.,
Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

BRIEF FOR THE STATES OF TENNESSEE, INDIANA,
KANSAS, LOUISIANA, MICHIGAN, MISSISSIPPI,
MONTANA, NEBRASKA, RHODE ISLAND, TEXAS, AND
UTAH AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Herbert H. Slatery III Andrée S. Blumstein
Attorney General and Solicitor General
Reporter State of Tennessee Counsel of Record
Sarah K. Campbell Jonathan David Shaub
Special Assistant to the Assistant Solicitor General
Solicitor General and the
Attorney General Office of the Attorney General
P.O. Box 20207
Nashville, TN 37202
(615) 532-3492
andree. blumstein@ag.tn.gov

Counsel for Amicus Curiae State of Tennessee

Additional Counsel Listed In Signature Block
Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

TABLE OF CONTENTS
TABLE OF AUTHORITIES .................. iii
INTERESTS OF AMICI CURIAE .............. 1
SUMMARY OF THE ARGUMENT ............. 2
PEE We Cece cecbecvectsesbececteseceesn 4

L. When Applied to a State Statute, the
Overbreadth Doctrine Must Incorporate
Deference to the State’s Sovereignty ....... 4
A. This Court’s construction of a state

statute as part of the overbreadth inquiry
must account for the State’s sovereign

B. This Court should ensure state courts
have an opportunity to construe state
statuves before invalidating them as
SE 6d db éewkdedcauscouneceess 8

C. The procedural posture of this case should
preclude the Court from declaring the
Minnesota statute overbroad ......... 14

Il. This Court Should Reject Petitioners’

Invitation To Abandon Traditional Forum

III.

il

. Forum analysis appropriately takes into

account the government’s strong interest
in preserving government property for its
PED “ica cccswesestevesecacs 23

. Subjecting to strict scrutiny all laws

regulating political speech in nonpublic
forums would significantly interfere
with the States’ core government

GUEEEEIUED bo cc ccccccccscesceccesees 25

This Court Should Reject Petitioners’
Invitation To Limit Burson v. Freeman to
Laws Prohibiting Active Electioneering ... 27
A. The Tennessee law challenged in Burson

prohibited both active electioneering
and the passive display of campaign
SE 44. dba ved UEs écanedcbeaads 28

. Burson’s First Amendment analysis was

not limited to regulation of active
electioneering and did not turn on any
distinction between active and passive

. Petitioners’ constitutional right to free

speech must be reconciled with the State’s
compelling interest in protecting its
citizens’ constitutional right to vote .... 33

GEES co ccccccvnccececcesoncevcecs 37

ili

TABLE OF AUTHORITIES

CASES
Adderley v. Florida,

Se ED n'a te cnsucevesscceses 19, 20
Arizonans for Official English v. Arizona,

GEEED oc cvcccdecccevceeeses passim
Ark. Educ. Television Comm’n v. Forbes,

Se ED ccc cctcevesceeccess 21, 22
Babbit v. United Farm Workers Nat'l Union,

SEED wc bes esedecceceesoseun 13
Baggett v. Bullitt,

Dc cbceskeeeteepueseues 13
Bd. of Airport Comm’rs of City of L.A. v. Jews for

Jesus, Inc., 482 U.S. 569 (1987) ......... 11, 12
Broadrick v. Oklahoma,

413 U.S. 601 (1973) .............. 7, 14, 15, 18
Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985) .............4.. 11, 14, 15
Burson v. Freeman,

604 U.S. 191 (1992) ............ ee eees passim
Carreon v. Ill. Dep’t of Human Servs.,

395 F.3d 786 (7th Cir. 2005) ............... 25
City of Houston v. Hill,

CE ee 12

Cohen v. California,
i ge Ue eee ek panew es 22

iv

Cornelius v. NAACP Legal Def. & Educ. Fund,

Se DE Secu bh eVe arava e ews 23, 24
Davenport v. Wash. Educ. Ass’n,

6 6 oe ob 600 6.605 o 08.c Re KEs 19
Dombrowski v. Pfister,

380 U.S. 479 (1965) ............02 ees 11, 12
Erznoznik v. City of Jacksonville,

EE ch ca dosasecrcticsoesete 13
Fighting Finest, Inc. v. Bratton,

95 F.3d 224 (2d Cir. 1996) ................. 25
Freeman v. Burson,

802 S.W.2d 210 (Tenn. 1990)............... 30
Greer v. Spock,

424 U.S. 828 (1976) ............. 20, 21, 23, 24
Harrison v. NAACP,

ED ovecvccccscsaveeaeas 8,13
Hill v. Colorado,

re oes cagen ee cee eebe cas 9
Huggins v. Isenbarger,

798 F.2d 203 (7th Cir. 1986) .............. 7,8
Huminshki v. Corsones,

396 F.3d 53 (2d Cir. 2005) ................. 25
Int'l Soc’y for Krishna Consciousness, Inc. v. Lee,

Se EEE ic ocesccrovecevcceecn 23, 24

Johnson v. City of Fort Wayne,
91 F.3d 922 (7th Cir. 1996) ................ 26

v

Jones v. N.C. Prisoners’ Labor Union, Inc.,

Se TD |» on a &% 0 659.004 ova dees 26
L.A. Police Dep't v. United Reporting Publ’g Corp.,

EE Wie Wlicceeeseuenesnecees 17
Lehman v. City of Shaker hvights,

418 U.S. 298 (1974) .... 19, 20, 26, 28, 33, 34, 35
Low Income People Together, Inc. v. Manning,

615 F. Supp. 501 (N.D. Ohio 1985) .......... 26
Marlin v. D.C. Bd. of Elections & Ethics,

236 F.3d 716 (D.C. Cir. 2001) ........ 24, 25, 27
Massachusetts v. Oakes,

EE 6 ac dines eweecncnsvees 9, 10
Members of City Council of L.A. v. Taxpayers for

Vincent, 466 U.S. 789 (1984) .......... 6, 21, 23
Mills v. Alabama,

nn . 3 oes ice bane kegs Jae ee 19
Morse v. Frederick,

ED 5.06 occ ens bes en taeveees 28
New York v. Ferber,

Se ED 6a ce tccevécrveda 10, 15, 17
Osborne v. Ohio,

ED < an do 4 o sik'@ bee e-0'e be D 9,10
Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

GR GED wv ccc ccccccescens 19, 23, 24

Thornhill v. Alabama,
ec 6 oe SS ween 9

United States v. Kokinda,

a neaeeeee 21, 24
United States v. Stevens,

PED nce ccc cccccnss 4, 5, 8,9, 17
United States v. Williams,

ee ee keds akake es 4, 5,7
Virginia v. Am. Booksellers Ass'n,

oes. eas d's w etiseae awl 5
Virginia v. Hicks,

Ne ol eee heeews 6, 9, 10
Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442 (2008) ............... 5, 16
Webb v. Webb,

ee eS ace eh bee 4
Wesberry v. Sanders,

wae eee ee 24
STATUTES
eC SE nk cece wseseeesewees 7
eB 8) re passim
a does cee we ewe 11
Tenn. Code Ann. § 2-7-111(b) .............. 28, 29
OTHER AUTHORITIES
Richard H. Fallon, Jr., Making Sense of

Overbreadth, 100 Yale L.J. 853 (1991) ..... 9,11

Stephen M. Shapiro et al., Supreme Court Practice
ST. chavceunetapscdaevieneuecs 17

1
INTERESTS OF AMICI CURIAE

Amici curiae—the States of Tennessee, Indiana,
Kansas, Louisiana, Michigan, Mississippi, Montana,
Nebraska, Rhode Island, Texas, and Utah’—submit
this brief in support of Respondents because the States
have a significant interest in ensuring that the First
Amendment overbreadth doctrine is applied in a
manner that respects and furthers state sovereignty,
including the authority of state courts to interpret state
laws. Amici States also have a strong interest in
preserving their ability to enact reasonable and
viewpoint-neutral restrictions on speech inside
nonpublic forums, including inside polling places to
protect their citizens’ right to vote.

‘ No counsel for any party authored this brief, in whole or in part,
and no person or entity other than Amici contributed monetarily
to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

This Court should decline to hold Minnesota’s
statute regulating speech inside a polling place facially
overbroad under the First Amendment.

1. When a state statute is challenged under the
First Amendment as facially overbroad, our
constitutional system of dual sovereignty requires that
the State be afforded an opportunity to exercise its
sovereign authority to definitively interpret its own
law. Petitioners’ overbreadth challenge rests on
hypotheticals and conjecture about speech Minn. Stat.
§ 211B.11(1) might reach if it is interpreted
expansively. But the mere plausibility that a statute
might have some unconstitutional applications if
interpreted broadly is insufficient to establish
overbreadth; instead, the unconstitutional applications
of a statute must be substantial in number, realistic,
and grounded in actual fact. Minnesota officials have
explained the meaning of Section 211B.11(1), and this
Court should defer to that interpretation. If it declines
to do so, the Court should at least certify the
construction of the statute to the Minnesota Supreme
Court before taking the extraordinary step of declaring
Section 211B.11(1) facially overbroad. Nor should
petitioners be permitted to base their overbreadth
challenge »n the very applications of the statute that
were at issue in this case. The Eighth Circuit held
Section 211B.11(1) constitutional as applied to
petitioners, and petitioners strategically did not ask
this Court to review that as-applied holding. If Section
211B.11(1) is in fact unconstitutional as applied to
petitioners, then the strong medicine of the
overbreadth doctrine is not warranted.

3

2. This Court should reject petitioners’ invitation
to abandon traditional forum analysis. Contrary to
petitioners’ assertions, this Court has consistently
applied forum analysis in reviewing First Amendment
challenges to regulations of speech on government
property, including regulations that implicate political
speech. Forum analysis is necessary because even
protected speech is not equally permissible in all
places. The First Amendment does not mandate that
all government property be made available for
unfettered First Amendment expression. Rather, the
government, like a private owner of property, has the
power to preserve the use of its property for its
intended purpose, including by enacting reasonable
and viewpoint-neutral limits on expression. Forum
analysis ensures that the important functions served
by properties under the control of state and local
governments—polling places, prisons, police and fire
stations, and public hospitals, just to name a few—will
not be needlessly disrupted.

3. This Court should likewise reject petitioners’
attempt to limit Burson v. Freeman, 504 U.S. 191
(1992), to laws prohibiting active electioneering. Like
many other state laws, the Tennessee statute that was
challenged in Burson prohibited—and still prohibits—
not only active campaigning, but also the passive
display of campaign materials, including shirts,
buttons, and hats. The Burson Court was well aware
of the statute’s reach, and the reasoning it adopted in
upholding the statute did not distinguish in any way
between active and passive speech. Nor would such a
distinction make sense; passive speech can be just as
powerful as active speech. Burson’s reasoning instead
reflected a reconciliation of two rights: the right to free

4

expression and the right to vote. That reasoning
applies with equal force here and dictates that
Minnesota’s statute is a reasonable means of protecting
the right to vote.

ARGUMENT

1. When Applied to a State Statute, the
Overbreadth Doctrine Must Incorporate
Deference to the State’s Sovereignty.

As it comes before the Court, this case involves only
a facial challenge to a state statute based on its alleged
overbreadth. Overbreadth is manifestly “strong
medicine that is not to be casually employed.” United
States v. Williams, 553 U.S. 285, 293 (2008) (internal
quotation marks omitted). “(T]he first step in
overbreadth analysis is to construe the challenged
statute; it is impossible to determine whether a statute
reaches too far without first knowing what the statute
covers.” United States v. Stevens, 559 U.S. 460, 474
(2010) (quoting Williams, 553 U.S. at 293). But that
step is fundamentally different when a state statute
has been challenged. In our constitutional system of
dual sovereignty, States retain the sovereign authority
to interpret their laws definitively—authority this
Court lacks. See Webb v. Webb, 451 U.S. 493, 500
(1981). Petitioners ignore this fundamental fact, but it
has significant ramifications for the application of the
overbreadth doctrine in this case and the propriety of
this Court’s review.

5

A. This Court’s construction of a state
statute as part of the overbreadth
inquiry must account for the State’s
sovereign interpretation.

To demonstrate the overbreadth of Minn. Stat.
§ 211B.11(1), petitioners must show that “a substantial
number of its applications are unconstitutional, judged
in relation to the statute’s plainly legitimately sweep.”
Stevens, 559 U.S. at 473 (quoting Wash. State Grange
v. Wash. State Republican Party, 552 U.S. 442, 449 n.6
(2008)). In an attempt to meet that burden, petitioners
have relied primarily on three types of evidence: (1) the
“fanciful hypotheticals” that commonly infect
overbreadth challenges, Williams, 553 U.S. at 301;
(2) phrases—many of which are taken out of context—
from the opinions below describing the potential
applications of the statute or the plaintiffs’ assertions
about it; and (3) statements made in the context of this
litigation in briefs and at oral argument, cf. Virginia v.
Am. Booksellers Ass’n, 484 U.S. 383, 398 (1988)
(Stevens, J., concurring in part and dissenting in part)
(“A matter as important as the constitutionality of a
state statute should not be decided on the basis of an
advocate’s concession during oral argument|.|”). See
Pet. Br. 23-29. All of this evidence culminates in
petitioners’ conclusion that “[t]he amount of protected
speech that Section 211B.11(1) can plausibly ban .. . is
truly staggering.” Pet. Br. 28 (emphasis added).

Petitioners’ fundamental error lies in the word
“plausibly.” Plausibility is insufficient. Petitioners
bear the burden of demonstrating substantial
overbreadth “from the text of [the law] and from actual
fact.” Stevens, 559 U.S. at 484 (Alito, J., dissenting)

6

(alterations and emphasis in original) (quoting Virginia
v. Hicks, 539 U.S. 113, 122 (2003)). And, “[sjimilarly,
‘there must be a realistic danger that the statute itself
will significantly compromise recognized First
Amendment protections of parties not before Court.”
Id. (emphasis in original) (quoting Members of City
Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789,
801 (1984)). Petitioners seek to lighten their burden
from “realistic” to “plausible” and, in so doing, subvert
the overbreadth doctrine. Instead of proving “from
actual fact” that a substantial number of “realistic”
applications of Section 211B.11(1) would be
unconstitutional, as judged in relation to its legitimate
sweep, petitioners find it sufficient to demonstrate that
a collection of cherry-picked phrases and responses to
litigation hypotheticals make it “plausible” that the
statute could be interpreted broadly.

Mere plausibility is particularly inadequate when
this Court is asked to declare a state statute facially
unconstitutional. Requiring petitioners’ hypotheticals
to be “realistic” and grounded in “actual fact” is vital to
protecting the State’s sovereign interests in the
overbreadth inquiry. Relegated almost entirely to
various string citations in petitioners’ brief is the
official state policy issued to provide guidance on the
proper application of Section 211B.11(1). Pet. Br. 23-
26. Petitioners barely address its text, let alone
undertake an analysis of the “actual fact” of its
application in the State of Minnesota. In a nod to their
burden, petitioners do valiantly assert that “(nJone of
[their evidence] is hyperbole,” because “[rjeports
abound of polling officials applying political apparel
bans to turn away or penalize voters for wearing
‘political’ t-shirts at polling areas.” Pet. Br. 27. But

7

none of those abundant “reports” involve Minnesota, let
alone the Minnesota statute at issue here. And
petitioners never demonstrate that similar applications
would be “realistic” in Minnesota.

Respondents—who include the Secretary of State of
Minnesota, the individual authorized by Minnesota law
to provide guidance about Section 211B.11(1)—provide
a specific, detailed interpretation of Section 211B.11(1)
that is grounded in “actual fact” and “realistic.” Resp.
Br. 17-24. Before employing the “strong medicine” of
the overbreadth doctrine to invalidate this state law in
its entirety, Williams, 553 U.S. at 293 (internal
quotation marks omitted), this Court must give due
deference to that official interpretation. See Broadrick
v. Oklahoma, 413 U.S. 601, 618 (1973) (“Surely a court
cannot be expected to ignore [State officials’)
authoritative pronouncements in determining the
breadth of a statute.”). Because no Minnesota court, let
alone the Minnesota Supreme Court, has opined on the
scope of the challenged law, “the prevailing
construction is the one of the Executive Branch” of
Minnesota’s government, and “disregard/ing) the
executive’s views would raise profound questions in a
federal system, one in which states, rather than the
national government establish the meaning of state
law.” Huggins v. Isenbarger, 798 F.2d 203, 209 (7th
Cir. 1986) (Easterbrook, J., concurring). The
Minnesota Secretary of State issued an authoritative
interpretation of Section 211B.11(1). See Minn. Stat.
§ 204B.27(2); Resp. Br. 22-23 & n.14. And based on
this construction, which was consistent with prior
interpretations of the statute, Minnesota officials
implemented the law. Resp. Br. 22-24. Accordingly,
this Court “should hesitate” before “conclud|ing] that

8

‘[Minnesota’s} Executive Branch does not understand
state law.” Arizonans for Official English v. Arizona,
520 U.S. 43, 76 n.30 (1997) (quoting Huggins, 798 F.2d
at 2010 (Easterbrook, J., concurring)).

The first step of the overbreadth inquiry—statutory
construction—is, in large part, the determinative step
in the inquiry. Even when a federal statute is at issue,
this Court mandates that the construction include only
realistic applications grounded in actual facts. When
a state statute is at issue, those requirements assume
paramount importance because they serve to protect
the State’s sovereign authority to construe and
implement its own statutes. Out of respect for that
sovereignty, this Court should hesitate before
invalidating a state statute as facially unconstitutional
based on petitioners’ conjecture and carefully curated
phrases.

B. This Court should ensure state courts
have an opportunity to construe state
statutes before invalidating them as
overbroad.

Petitioners ask this Court to do something
extraordinary: declare a state statute facially
unconstitutional under the overbreadth doctrine
without allowing the state court an opportunity to
construe the statute and without definitive state court
rulings on the scope of the statute. This Court should
not take that radical step. See Harrison v. NAACP, 360
U.S. 167, 176 (1959) (“[T}he federal courts should not
adjudicate the constitutionality of state enactments
fairly open to interpretation until the state courts have
been afforded a reasonable opportunity to pass upon
them.”). In Stevens, because the challenged provision

9

was “a federal statute, there |wa]s no need to defer to
a state court’s authority to interpret its own law.” 559
U.S. at 474. Not so here. Section 211B.11(1) is a state
statute, and thus there is “a need to defer to [the] state
court’s authority to interpret its own law.” Jd. As
respondents point out, that option is readily available
to the Court in the form of a certified question to the
Minnesota Supreme Court. Resp. Br. 56-58.

From the inception of the overbreadth doctrine, this
Court has ensured that it defers to a State’s sovereign
authority to interpret its law before declaring the law
invalid. In Thornhill v. Alabama, widely regarded as
the first overbreadth case, this Court granted certiorari
to review an Alabama state court decision affirming a
conviction under a loitering statute. 310 U.S. 88, 91
(1940); see Richard H. Fallon, Jr., Making Sense of
Overbreadth, 100 Yale L.J. 853, 863 & n.58(1991). The
Court held the law facially unconstitutional, but
emphasized that it was relying on the State’s
interpretation of the statute, not the Court’s own. The
opinion first noted that the state “courts below
expressed no intention of narrowing the construction
put upon the statute by prior State decisions,”
Thornhill, 310 U.S. at 96, and then concluded that the
statute as “authoritatively construed and applied” by
Alabama courts was overbroad and left “room for no
exceptions,” id. at 99.

Many overbreadth challenges to state statutes have,
like Thornhill, reached this Court on a writ of
certiorari to a state court. See, e.g., Hicks, 539 U.S. at
117-18; Hill v. Colorado, 530 U.S. 703, 711-14 (2000);
Osborne v. Ohio, 495 U.S. 103, 107-08 (1990);
Massachusetts v. Oakes, 491 U.S. 576, 580-81 (1989);

10

New York v. Ferber, 458 U.S. 747, 752 (1982). In those
cases, the state court had already had an opportunity
to construe the statute as part of its overbreadth
analysis, and this Court considered itself bound by that
construction. See, e.g., Hicks, 539 U.S. at 121 (Virginia
Supreme Court’s determination that potentially
unconstitutional part of the statute was not severable
was a “matter of a state law”); Oakes, 491 U.S. at 594
(a “restrictive reading of the statute or its partial
invalidation” was “beyond [the Court’s] power” in light
of the state court’s construction); Ferber, 458 U.S. at
767 (“[T|he construction that a state court gives a state
statute is not a matter subject to our review.”).

Osborne is a paradigmatic example. There,
reviewing a child pornography conviction, the Ohio
Supreme Court adopted a narrowing construction of
the challenged statute. 495 US. at 112-14.
Accordingly, this Court found it unnecessary to resolve
the challenger’s arguments about the scope of the
statute “as written” because “the statute, as construed
by the Ohio Supreme Court on Osborne’s direct appeal,
plainly surviveld] overbreadth scrutiny.” Jd. at 112-13.
This Court also rejected Osborne’s argument that the
Ohio Supreme Court could not narrow the statute in
the context of his appeal, emphasizing that this Court
“hald] long respected the State Supreme Courts’ ability
to narrow state statutes” and that an inability to
“narrow the statute, affirm on the basis of the
narrowing construction, and leave the statute in full
force” would “require a radical reworking of our law.”
Id. 119-20.

By contrast, when this Court reviews an
overbreadth challenge to a state statute on writ of

11

certiorari to a federal court, the “First Amendment
overbreadth doctrine creates a serious risk of judicial
error” because neither this Court nor the lower federal
court can “hold a state statute unconstitutional without
anticipating the meaning that a state court would
assign.” Fallon, supra, at 900. Certification eliminates
that “serious risk of judicial error.” See Arizonans for
Official English, 520 U.S. at 76 (certification and
abstention are “|djesigned to avoid federal-court error
in deciding state-law questions antecedent to federal
constitutional issues”). As Justice O’Connor explained
in the context of an overbreadth challenge to a
Washington law, “[s|peculation by a federal court about
the meaning of a state statute in the absence of prior
state court adjudication is particularly gratuitous
when .. . the state courts stand willing to address
questions of state law on certification from a federal
court.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
510 (1985) (O’Connor, J., concurring). If this Court has
concerns about potential applications of Section
211B.11(1), the Minnesota Supreme Court “stands
willing” to address questions about it. Minn. Stat.
§ 480.065(3); cf. Bd. of Airport Comm’rs of City of L.A.
v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987)
(certification was not appropriate “because California
hald| no_ certification procedure”). Instead of
“gratuitous|ly|” employing the “strong medicine” of
overbreadth, this Court should certify a question to the
Minnesota Supreme Court and avoid the “serious risk”
of “federal-court error” that petitioners invite this
Court to commit.

The reasons this Court has in the past rejected
pleas for certification—or its analogue, abstention—do
not apply here. In Dombrowski v. Pfister, this Court

12

declined to abstain because “the interpretation
ultimately put on the [challenged statutes] by the state
courts [would have been] irrelevant,” and because “no
readily apparent construction suggestled] itself as a
vehicle” by which to cure the constitutional defect. 380
U.S. 479, 490-91 (1965). In City of Houston v. Hill, this
Court declined to abstain or certify because the
ordinance at issue was “unambiguous” and “not
susceptible to a limiting construction,” and because
state trial courts had “regularly applied” the ordinance
and had “had numerous opportunities to narrow the
scope of the ordinance” but had not done so. 482 U.S.
451, 468, 470 (1987). And in Jews for Jesus, in addition
to California’s failure to provide for certification, this
Court pointed to the fact that the “words of the
resolution simply leave no room for a narrowing
construction.” 482 U.S. at 575.

These rationales do not apply here; thus “[a] more
cautious approach [is] in order.” Arizonans for Official
English, 520 U.S. at 77. Even if this Court rejects
respondents’ interpretation of Section 211B.11(1),
petitioners do not claim that the term “political” is
“unambiguous”; indeed, they rely on its ambiguity as a
key component of their argument. See, e.g., Pet. Br. 14,
25, 35-36 (characterizing “political” as an “amorphous,”
“malleable” and “vague” term that has “no logical
stopping point”). And because the overbreadth inquiry
depends on the scope of Section 211B.11(1), the
Minnesota Supreme Court’s construction of it would
not only be “relevant” but likely dispositive. Moreover,
if this Court declines to accept respondents’
interpretation of Section 211B.11(1), the statute is
undoubtedly still “susceptible to a _ limiting
construction” and includes ample “room for a

13

narrowing construction.” Finally, no Minnesota courts
have “regularly applied” Section 211B.11(1) or had an
opportunity to adopt a narrowing construction. No
Minnesota court has even had an opportunity to
interpret it. Resp. Br. 4 n.2.

When a state statute is the subject of a facial
overbreadth challenge, it is the State’s prerogative to
determine whether a narrowing construction, when
possible, should be adopted. See Arizonans for Official
English, 520 U.S. at 78-79 (the “cardinal principle” that
a court should consider narrowing constructions
“bear|s) heighted attention when a federal court is
asked to invalidate a State’s law”). This Court must
“proceed with caution and restraint” when a state
statute is at issue because “invalidation may result in
unnecessary interference with a state regulatory
program.” Erznoznik v. City of Jacksonville, 422 U.S.
205, 216 (1975). Accordingly, “the Court has held that
a state statute should not be deemed facially invalid
unless it is not readily subject to a narrowing
construction by the state courts.” Jd. That is not the
case here. As was the case in Babbit v. United Farm
Workers National Union, if this Court rejects
respondents’ interpretation, the “uncertain issue of
state law” that would remain in this case “[turns] upon
a choice between one or several alternative meanings”
of Section 211B.11(1). 442 U.S. 289, 308 (1979)
(alteration in original) (quoting Baggett v. Bullitt, 377
U.S. 360, 378 (1964)). “Accordingly, . . . the
[Minnesota] courts should be ‘afforded a reasonable
opportunity to pass upon’ the section under review.”
Id. (quoting Harrison, 360 U.S. at 176).

14

If this Court declines to accept the construction
provided by state and local officials as respondents or
has concerns that “realistic” applications of the statute
based in “actual fact” intrude substantially on
protected speech, see supra Part I.A., it should certify
a question to the Minnesota Supreme Court about the
statute’s application. Certification to that court for an
authoritative interpretation of the statute is a more
appropriate course than wholesale invalidation. To do
otherwise would be to ignore—indeed, undermine—
principles of state sovereignty. See Arizonans for
Official English, 520 U.S. at 79 (“[A) federal tribunal
risks friction-generating error when it endeavors to
construe a... state Act not yet reviewed by the State’s

highest court.”).

C. The procedural posture of this case
should preclude the Court from
declaring the Minnesota statute

overbroad.

The “strong medicine” of overbreadth is supposed to
be the “last resort” for this Court, Broadrick, 413 U.S.
at 613, an inquiry that permits this Court to consider
applications of the law to third parties only when the
statute may be constitutionally applied to the
challengers in the case, Brockett, 472 U.S. at 502-04.
If the statute’s application to challengers is not
constitutional, the case is “governed by the normal rule
that partial, rather than facial, invalidation is the
required course.” Brockett, 472 U.S. at 504.
Petitioners, through strategic maneuvering, have
attempted to thwart that “required course” and,
contrary to this Court’s instruction, seek to “render
inapplicable the rule that a federal court should not

15

extend its invalidation of a statute further than
necessary to dispose of the case before it.” Jd. at 503.

This Court should not reward such gamesmanship
with the overbreadth doctrine, particularly in a
challenge to a state statute. Although petitioners have
described hypothetical applications of Section
211B.11(1) that are outside of the facts in the
complaint, their overbreadth argument relies
principally on their position—rejected by the Eighth
Circuit—that Section 211B.11(1) is unconstitutional as
applied to passive political expression such as a “Tea
Party” shirt—the precise facts of the sole claim
remaining in this case. See Pet. Br. 24-25; Pet. App. A-
3-A-6. If this Court determines that those applications
are in fact unconstitutional, the “required course” is to
invalidate the statute only partially as applied to the
facts alleged in the complaint. Brockett, 472 U.S. at
504; see also Ferber, 458 U.S. at 769 n.24. That is
because overbreadth analysis is not appropriate when
the statute is susceptible to “partial invalidation.”
Broadrick, 413 U.S. at 613. But petitioners explicitly
declined to seek certiorari from the Eighth Circuit’s as-
applied holding, Pet. i; instead they endeavor to
“compel[]” this Court “to entertain an overbreadth
attack when not required to do so by the Constitution,”
Ferber, 458 U.S. at 767.

Because petitioners have not challenged the Eighth
Circuit’s holding that Section 211B.11(1) is
constitutional as applied to them, this case does not
provide an appropriate vehicle for this Court to resolve
the overbreadth question presented. See Brockett, 472
U.S. at 504. Considering the question of facial
overbreadth is inappropriate if the Court is unable to

16

consider lesser extremes, such as partial invalidation
based on the facts of a particular case. That is
particularly true when a state statute has been
challenged exclusively in federal courts, and the state
courts have had no opportunity to construe the statute.
See Arizonans for Official English, 520 U.S. at 79.
Whatever the validity of the Eighth Circuit’s as-applied
holding, petitioners did not seek this Court’s review of
it. Neither is that question necessarily included in the
question presented. See Resp. Br. 37 1.20.
Accordingly, petitioners should not be permitted to
reframe their as-applied challenge as one of
overbreadth.

Overbreadth “doles] not apply . .. where the parties
fail to describe the instances of arguable overbreadth of
the contested law.” Wash. State Grange, 552 U.S. at
449 n.6. The primary examples of arguable
overbreadth provided in petitioners’ complaint are the
same examples that form the basis for the as-applied
challenge. Compare JA 82-84, with JA 87-89. And the
Eighth Circuit ultimately found Section 211B.11(1)
constitutional as applied to those facts. Pet. App. A-3-
A-6. Accordingly, the Eighth Circuit was correct that
petitioners’ overbreadth challenge must fail because
“the complaint does not allege that there were a
‘substantial number’ of . . . unreasonable applications
in relation to the statute’s reasonable applications.”
Pet. App. D-10.

By not seeking certiorari on that as-applied holding,
petitioners seek to position themselves as plaintiffs to
whom the statute may be applied constitutionally—
thus allowing them to bring an overbreadth claim. At
the same time, they continue to maintain that Section

17

211B.11(1) is unconstitutional as applied to them. See
Pet. Br. 39-40 & n.11. They cannot have it both ways.
Having failed to allow this Court to consider whether
“partial invalidation” of Section 211B.11(1) is possible
based on the “flesh and blood legal problem” presented
by the facts of this case, L.A. Police Dep’t v. United
Reporting Publ’g Corp., 528 U.S. 32, 39 (1999) (quoting
Ferber, 458 U.S. at 768), petitioners cannot claim
overbreadth based on those same or substantially
similar applications. Nor can they demonstrate a
“substantial number” of unconstitutional applications
of Section 211B.11(1), judged in relation to its
“legitimate sweep,” Stevens, 559 U.S. at 473 (internal
quotation marks omitted), by pointing to applications
of the statute judged legitimate by the Eighth Circuit
when they have not sought review of that judgment.

Petitioners should not be permitted to circumvent
the normal progression from as-applied challenge to
overbreadth analysis by strategic gamesmanship,
particularly when the facial validity of a state statute
is at issue. Thus, even if this Court determines that
“realistic” applications of Section 211B.11(1) present
constitutional concerns, see supra Part I.A, and
declines to certify the construction of Section
211B.11(1) to the Minnesota Supreme Court, see supra
Part I.B, the appropriate resolution of this case would
be to dismiss it as improvidently granted because
petitioners have failed to provide this Court the
opportunity to consider a necessary prerequisite to an
overbreadth challenge: the application of Section
211B.11(1) to the “flesh and blood” of the facts of this
case. Cf. Stephen M. Shapiro et al., Supreme Court
Practice 361 (10th ed. 2013) (dismissal of a question as
improvidently granted may occur where the Court

18

“conclude|s} that it cannot reach the question accepted
for review without reaching a threshold question not
presented in the petition”). At the very least, this
Court should follow the “required course” in an
overbreadth challenge and consider the as-applied
challenge first, despite petitioners’ failure to include it
in the question presented. See Broadrick, 413 U.S. at
615-16 (“[W]hatever overbreadth may exist should be
cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not
be applied.”).

Il. This Court Should Reject Petitioners’
Invitation To Abandon Traditional Forum
Analysis.

Petitioners and several of their amici urge this
Court to subject Section 211B.11(1) to strict scrutiny
even though it restricts political speech only in “a
polling place,” a location long considered a nonpublic
forum. See Resp. Br. 29-31. This Court should reject
that invitation and instead reaffirm the well-settled
rule that laws regulating s —even political
speech—in a nonpublic forum are permissible as long
as they are reasonable and viewpoint neutral.

A. This Court has consistently applied
forum analysis in reviewing First
Amendment challenges to laws

regulating political speech.

Speech concerning governmental affairs—including
“discussions of candidates, structures and forms of
government, the manner in which government is
operated or should be operated, and all such matters
relating to political processes’—is undoubtedly

i

19

essential to a well-functioning democracy and uniquely
deserving of First Amendment protection. Mills v.
Alabama, 384 U.S. 214, 218-19 (1966). At the same
time, this Court has long acknowledged that the
“nature of the forum and the conflicting interests
involved” remain “important in determining the degree
of protection afforded” by the First Amendment to the
particular speech at issue. Lehman v. City of Shaker
Heights, 418 U.S. 298, 302-03 (1974) (plurality
opinion).

The degree of scrutiny that a content-based
regulation of political speech warrants thus depends on
the particular forum in which the regulation applies.
Laws that restrict political speech on government
property that has long been devoted to public
expression are subject to the most exacting scrutiny.
See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983). But laws that restrict political
speech only on government property that “is not by
tradition or designation a forum for _ public
communication” are subject to a more deferential
standard: they will be upheld as long as they are
viewpoint neutral and reasonable in light of the
purpose served by the forum. Id. at 46; see also
Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 189
(2007).

This Court’s precedents foreclose any argument that
forum analysis is inappropriate for laws regulating
political speech. One of this Court’s earliest cases
employing forum analysis, Adderley v. Florida,
involved political speech. 385 U.S. 39, 40-41 (1966). In
Adderly, the Court upheld the trespass convictions of
dozens of college students who engaged in anti-

20

segregation protests on the property of a county jail.
Id. at 46-47. The Court squarely rejected the premise
of the protestors’ First Amendment argument, which
was that “people who want to propagandize protests or
views have a constitutional right to do so whenever and
however they please.” Jd. at 48. “The State, no less
than a private owner of property,” the Court explained,
“has power to preserve the property under its control
for the use to which it is lawfully dedicated.” Jd. at 47.

A plurality of this Court relied on Adderley a few
years later in Lehman, which upheld a city’s policy of
prohibiting political advertising on its rapid transit
vehicles. 418 U.S. at 303-04 (plurality opinion). The
prohibition did not violate the First Amendment
because the city, acting in its “proprietary capacity,”
could legitimately “limit[] access to its transit system
advertising space in order to minimize chances of
abuse, the appearance of favoritism, and the risk of
imposing upon a captive audience.” Jd. at 304.
Otherwise, “display cases in public hospitals, libraries,
office buildings, military compounds, and other public
facilities would become Hyde Parks open to every
would-be pamphleteer and politician.” Jd.

Just two years later, in Greer v. Spock, this Court
again upheld under forum analysis a regulation of
political speech. 424 U.S. 828 (1976). The regulation
at issue banned “|s|peeches and demonstrations of a
partisan political nature” at Fort Dix Military
Reservation, an area over which the federal
government exercised exclusive jurisdiction. Jd. at 830-
31. While civilians were “freely permitted to visit
unrestricted areas of the reservation,” the pri
mission of Fort Dix was to “provide basic combat

21

training for newly inducted Army personnel.” /d. at
830. The Court rejected as “historically and
constitutionally false” the “notion that federal military
reservations, like municipal streets and parks, have
traditionally served as a place for free public assembly
and communication of thoughts by private citizens.”
Id. at 838. To the contrary, “the business of a military
installation like Fort Dix” was to “train soldiers, not to
provide a public forum.” Jd. The First Amendment
therefore did not prevent Fort Dix from “objectively and
evenhandedly” applying a policy of “keeping official
military activities there wholly free of entanglement
with partisan political campaigns of any kind.” /d. at
839.

Many of this Court’s more recent cases applying
forum analysis likewise have involved challenges to
government regulations implicating political speech. In
Taxpayers for Vincent, for example, a group supporting
a candidate for political office brought a First
Amendment challenge to a municipal ordinance that
prohibited the posting of signs on public property. 466
U.S. at 792-93. This Court rejected the challenge,
finding that the utility poles on which the candidate
wished to post signs were a nonpublic forum and that
the city’s prohibition was reasonable and viewpoint
neutral. Jd. at 814-17. United States v. Kokinda
involved political volunteers who challenged a U.S.
Postal Service regulation that prohibited them from
soliciting outside of a post office. 497 U.S. 720, 723-24
(1990). This Court determined that the sidewalk on
which the volunteers were soliciting was a nonpublic
forum and upheld the regulation as reasonable and
viewpoint neutral. Jd. at 730-37. And in Arkansas
Educational Television Commission v. Forbes, this

22

Court concluded that a candidate debate aired on
public television was a nonpublic forum and upheld the
broadcaster’s viewpoint-neutral decision to exclude
from the debate a candidate with little popular support.
523 U.S. 666, 676-83 (1998).

Petitioners contend that “[t)he public forum doctrine
has never been the exclusive analytical device for
reviewing speech claims,” Pet. Br. 19 (emphasis in
original), but none of the cases they cite in support of
that proposition involved a regulation of speech in a
nonpublic forum. To be sure, the defendant in Cohen
v. California was convicted of breach of the peace for
wearing a “Fuck the Draft” jacket in the corridor of a
public courthouse. 403 U.S. 15, 16 (1971). But the
statute under which he was convicted “appllied)
throughout the entire State” and was not an attempt to
“preserve an appropriately decorous atmosphere in the
courthouse.” Id. at 19. Indeed, Cohen reaffirmed that
“the First and Fourteenth Amendments have never
been thought to give absolute protection to every
individual to speak whenever and wherever he pleases
or to use any form of address in any circumstances that
he chooses” and noted the government’s authority to
draw “distinctions between certain locations.” Id.

Contrary to petitioners’ contention, this Court has
consistently applied a more deferential standard of
review to regulations of speech in a nonpublic forum,
even when those regulations draw content-based
distinctions and even when they implicate political
speech. There is no reason to depart from that settled
practice in this case.

23

B. Forum analysis appropriately takes into
account the government’s strong

interest in preserving government
property for its intended use.

The determination that particular speech is
protected by the First Amendment “merely begins” the
inquiry into whether the government may permissibly
restrict that speech. Cornelius v. NAACP Legal Def. &
Educ. Fund, 473 U.S. 788, 799 (1985); see also Int'l
Soc’y for Krishna Consciousness, Inc. v. Lee, 505 US.
672, 677-78 (1992). That is because “le]ven protected
speech is not equally permissible in all places and at all
times.” Cornelius, 473 U.S. at 799. In particular,
“(njothing in the Constitution requires the Government
freely to grant access to all who wish to exercise their
right to free speech on every type of Government
property without regard to the nature of the property
or to the disruption that might be caused by the
speaker's activities.” Jd. at 799-800; see also Perry, 460
U.S. at 46 (“[T)he First Amendment does not guarantee
access to property simply because it is owned or
controlled by the government.” (internal quotation
marks omitted)); Taxpayers for Vincent, 466 U.S. at 814
(“(T}he mere fact that government property can be used
as a vehicle for communication does not mean that the
Constitution requires such uses to be permitted.”).
Rather, the “Government, ‘no less than a private owner
of property, has power to preserve the property under
its control for the use to which it is lawfully dedicated.”
Cornelius, 473 U.S. at 800 (quoting Greer, 424 U.S. at
836)).

This Court adopted forum analysis “as a means of
determining when the Government’s interest in

24

limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the
property for other purposes.” Jd. “Implicit in the
concept of the nonpublic forum is the right to make
distinctions in access on the basis of subject matter and
speaker identity.” Perry, 460 U.S. at 49. Although
such distinctions may be “impermissible in a public
forum,” where “all parties have a constitutional right of
access,” they are “inescapable in the process of limiting
a nonpublic forum to activities compatible with the
intended purpose of the property.” Jd. at 49, 55.
Accordingly, the purpose of forum analysis is not to
devalue any particular category of protected speech;
rather, it is to appropriately value the government’s
proprietary interest in preserving property under its
control for its intended use, whether training soldiers,
see Greer, 424 U.S. at 838; providing postal services, see
Kokinda, 497 U.S. at 726-30; or facilitating air travel,
Int'l Soc’y for Krishna Consciousness, 505 U.S. at 682.

The limited purpose served by the nonpublic forum
at issue in this case—the interior of a polling place—is
of course especially important. A polling place exists to
allow each voter to communicate “his own elective
choice . . . privately—by secret ballot in a restricted
space.” Marlin v. D.C. Bd. of Elections & Ethics, 236
F.3d 716, 719 (D.C. Cir. 2001). As a plurality of this
Court recognized in Burson v. Freeman, “(|njo right is
more precious in a free country than that of having a
voice in the election of those who make the laws under
which, as good citizens, we must live.” 504 U.S. 191,
199 (1992) (plurality opinion) (alteration in original)
(quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)).
To ensure that the environs of a polling place remain
compatible with the limited and important purpose of

25

that property, all fifty States have enacted laws
restricting who may access that property and what
expression may occur there. See Burson, 504 U.S. at
206 (plurality opinion) (noting that “all 50 States limit
access to the areas in or around polling places”); Resp.
Br., App. A (compiling text of state polling place
restrictions). Forum analysis dictates that these
restrictions—even those that implicate core political
speech—must be upheld as long as they are reasonable
and viewpoint neutral.

C. Subjecting to strict scrutiny all laws
regulating political speech in nonpublic
forums would significantly interfere
with the States’ core government
operations.

Lower federal courts and state courts have
determined that a wide array of properties owned or
otherwise controlled by state and local governments
qualify as nonpublic forums under this Court’s
precedents. These properties include the interior of a
polling place, see Marlin, 236 F.3d at 719 (“the interior
of a polling place . . . is not available for general public
discourse of any sort”); the interior of a courthouse, see,
e.g., Huminski v. Corsones, 396 F.3d 53, 91 (2d Cir.
2005) (“The function of a courthouse and its courtrooms
is principally to facilitate the smooth operation of a
government’s judicial functions.”); police stations, see,
e.g., Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 231
(2d Cir. 1996) (the “police purpose in permitting access
[to its bulletin boards) is to promote its own internal
objectives”); interrogation rooms, see, e.g., Carreon v.
Ill. Dep’t of Human Servs., 395 F.3d 786, 797 (7th Cir.
2005) (“It is clear that a room used to interview a

26

person suspected of committing a crime is not a public
forum.”); fire stations, see, e.g., Johnson v. City of Fort
Wayne, 91 F.3d 922, 941 (7th Cir. 1996) (a fire station’s
purpose, “performing a vital public safety function,” is
“obviously inconsistent with expressive activity”
(internal quotation marks omitted)); and public
hospitals, see, e.g., Low Income People Together, Inc. v.
Manning, 615 F. Supp. 501, 516 (N.D. Ohio 1985) (the
“sole purpose” of hospital waiting rooms “is to serve
patients, friends and families of patients, and the
Hospital staff who provide medical care”).

These government properties and others that this
Court has previously deemed nonpublic forums, such as
prisons, see, Jones v. N.C. Prisoners’ Labor Union, Inc.,
433 U.S. 119, 136 (1977), are integral to the States’
ability to carry out their core government functions. To
ensure that these functions are performed as effectively
and efficiently as possible, the States must be able to
preserve the use of these properties for the important
purposes they are intended to serve, including by
imposing reasonable and viewpoint-neutral limits on
the expressive activities that may occur there. As
Lehman recognized, were the rule otherwise, these
properties “immediately would become Hyde Parks
open to every would-be pamphleteer and politician.”
418 U.S. at 304 (plurality opinion). The disruption that
would ensue from such unfettered expression would
significantly impede state and local governments from
performing functions and delivering services that are
critical to public health and safety. “This the
Constitution does not require.” Jd.

27

Ill. This Court Should Reject Petitioners’
Invitation To Limit Burson v. Freeman to
Laws Prohibiting Active Electioneering.

In Burson, this Court applied traditional forum
analysis to uphold a Tennessee statute that created a
“campaign-free zone” inside and within 100 feet of
polling places on election day. 504 U.S. at 193, 198-211
(plurality opinion). The facial, First Amendment
challenge to the statute came from a political campaign
worker who sought to communicate with voters in the
campaign-free zone outside the polling place. Jd. at
194. Viewing the streets and sidewalks outside the
polling place as a public forum, the Burson plurality
applied strict scrutiny to test the constitutionality of
the statute. Jd. at 196-98.

The inside of a polling place, on the other hand, is a
quintessential nonpublic forum. See, e.g., Marlin, 236
F.3d at 719; Resp. Br. 29-32. Petitioners do not dispute
that fact. Thus, since the speech regulations in Burson
survived the strict scrutiny applicable to a public
forum, it can only follow that similar regulations would
survive the more lenient scrutiny applicable to a
nonpublic forum.’

To dissuade the Court from this inescapable result,
petitioners and their amici strain to distinguish Burson
by, among other things, proposing that there is a
dichotomy between restrictions on “active
electioneering”—which, they claim, was all that was
involved in Burson—and the “passive display of

* Justice Scalia made this very point in his concurring opinion in
Burson. 504 U.S. at 216 (Scalia, J., concurring in the judgment).

28

speech”—which, they claim, is all that is involved here.
Pet. Br. 15-16, 31, 36-37. But the distinction
petitioners would like to draw between active and
passive speech is unsupportable. Neither the statute
at issue in Burson nor Burson’s analysis was limited to
restrictions on active electioneering.

Moreover, this Court’s precedents do not support
any suggestion that “passive” speech triggers an
analysis under a legal standard other than the one
applied to “active” speech. See, e.g., Lehman, 418 U.S.
at 304 (plurality opinion) (applying nonpublic forum
analysis to passive display of political speech); Morse v.
Frederick, 551 U.S. 393, 408-10 (2007) (applying lower
level scrutiny to high school student’s passive display
of message on a banner).

A. The Tennessee law challenged in Burson
prohibited both active electioneering
and the passive display of campaign
materials.

The Tennessee law challenged in Burson, like the
laws of many other States, applied both to active
electioneering and to the passive display of campaign
materials. Included within its ban on the passive
display of campaign materials was a prohibition on the
wearing of buttons, caps, pin, shirts, and similar
apparel within the statutorily set boundary.

The precise portion of the statute that was
challenged as facially invalid under the First
Amendment was Tenn. Code Ann. § 2-7-111(b), which
provided:

Within the appropriate boundary as established
in subsection (a), and the building in which the

29

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. No campaign posters, signs or other
campaign literature may be displayed on or in
any building or on the grounds of any building in
which a polling place is located.

Tenn. Code Ann. § 2-7-111(b)(1) (1990).

Petitioners maintain that Burson “did not involve a
law restricting citizens’ ability to wear political apparel
when voting.” Pet. Br. 36. Petitioners are incorrect.
The statute upheld in Burson prohibited the passive
display of campaign materials, the active distribution
of campaign materials, and the active solicitation of
votes, on and inside the polling place and within 100
feet of the polling place. 504 U.S. at 193-94. The
dissenting opinion, oral arguments, decision below, and
the briefing all confirm that the challenged statute
applied to passive displays such as buttons and shirts
and was enforced accordingly. See id. at 224 (Stevens,
J., dissenting) (recognizing the statute applied to the
“wearing of campaign buttons”); Oral Arg. Tr., 1991
WL 636253, at *33 , Burson (No. 90-1056) (“Tee-shirts
and campaign buttons are restricted under this
statute.” (Statement of Tenn. Att’y Gen. Burson));°

* The full exchange between General Burson and Justices Kennedy
and O’Connor occurred during General Burson’s rebuttal:

JUSTICE KENNEDY: And what about tee-shirts and
campaign buttons?

30

Freeman v. Burson, 802 S.W.2d 210, 213 (Tenn. 1990)
(discussing the “solicitation of votes and the display or
distribution of campaign materials” (emphasis added));
Br. of Resp. at 3, Burson, 504 U.S. 191 (No. 90-1056)
(noting the law “even extends to the wearing of caps or
shirts with a candidate’s name on it”).

Thus, petitioners are wrong when they claim that
the statute at issue in Burson involved only active
electioneering and did not involve the passive display
of speech. The statute included, on its face,
prohibitions on the passive display of speech, such as
campaign apparel and buttons. And this Court was
cognizant of that fact.

MR. BURSON: Tee-shirts and campaign buttons are
restricted under this statute.

JUSTICE KENNEDY: So a voter cannot wear a little
campaign button going into --

MR. BURSON: A voter is asked to take the campaign
button off as they go in. It’s our position -- look, buttons
and tee-shirts and hats and signs are all part of
campaigning activity. They all implicate and invite the
same problems. When you start --

JUSTICE O’CONNOR: And a bumper sticker on a car
driving by on the street that happens to fall within the
100-foot limit?

MR. BURSON: Yeah. That is a hypothetical —
Oral Arg. Tr., 1991 WL 636253, at *33-*34, Burson (No. 90-1056).

31

B. Burson’s First Amendment analysis was
not limited to regulation of active
electioneering and did not turn on any
distinction between active and passive

speech.

Petitioners are equa!'ly wrong to claim that Burson’s
legal analysis was limited to restrictions on active
electioneering or that the legal analysis turned on any
distinction between active and passive speech.

Burson held that regulations of political speech
designed to protect access to the polling place are to be
analyzed under the forum doctrine as regulations of
government-controlled property. 504 U.S. at 196-97
(plurality opinion). Because, in the view of the
plurality, Tennessee’s statute regulated traditional
public forums, namely public streets and sidewalks
adjacent to a polling place, the law was “subject(] to
exacting scrutiny.” Jd. at 198. The statute passed
muster under that highest level of scrutiny because of
the State’s compelling interest in protecting its citizens’
“fundamental . . . right to cast a ballot in an election
free from the taint of intimidation and fraud” and
because of the “long history” and “substantial
consensus” that political-speech restrictions “around
polling places [are] necessary to protect that
fundamental right.” Jd. at 211.

Burson’s legal analysis was not even remotely
predicated or dependent on any distinction between
passive speech and active electioneering. Indeed,
Burson expressly identified the “central concerns” of
the First Amendment that the Tennessee statute
implicated: “regulation of political speech, regulation of
speech in a public forum, and regulation based on the

32

content of the speech.” Jd. at 196. Nowhere does
Burson limit its consideration only to regulation of
“active campaigning” or electioneering. Pet. Br. 36.
The Court simply applied the most stringent scrutiny
to a statute that regulated political speech—
undifferentiated by “active” versus “passive”
manifestation of the expression—and held that the
statute did not violate the First Amendment.

Every State has a highly “compelling interest in
securing the right to vote freely and effectively.” Jd. at
208. Polling places are, first and foremost, dedicated
to allowing voters to cast their ballots in secret, free
from coercion, intimidation, and distraction. Jd. at 206.
Their core purpose is to provide a venue in which
citizens may exercise their fundamental, constitutional
right to vote. Jd. at 213-14 (Kennedy, J., concurring).
For these reasons, Justice Scalia argued in Burson that
“the environs of a polling place, on election day, are
simply not a ‘traditional public forum” and would have
applied only intermediate scrutiny. Jd. at 216 (Scalia,
J., concurring in the judgment).

In their struggle to distance themselves from
Burson, petitioners take the position that there is no
compelling interest in regulating “passive” messages
displayed on apparel, because passive speech is
powerless to disrupt the peace of the polling place,
intimidate others, or even influence others. Pet. Br. 15.
In essence, petitioners are arguing that the written
word is less powerful than the spoken word, that a
passively displayed symbol is less powerful than a
symbol accompanied by action.

But there is no logic to this argument, and it surely
runs counter to common sense; we all know that the

33

pen is mightier than the sword. The Klansman’s hood
and the Nazi swastika are symbols that, even when
silently displayed, are capable of arousing fear and
intimidation. Clearly, “passive” displays of campaign
messages can have strong and odious effects. See, e.g.,
Lehman, 418 U.S. at 304 (plurality opinion) (holding
that city could prohibit political advertising in
streetcars to avoid subjecting riders to the unwelcome
“blare of political propaganda”); Burson, 504 U.S. at
207 (plurality opinion) (“undetected or less than
blatant acts” of intimidation or interference may “drive
the voter away”).

C. Petitioners’ constitutional right to free
speech must be reconciled with the
State’s compelling interest in protecting
its citizens’ constitutional right to vote.

Burson “presentied this Court] with 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.” 504 U.S.
at 198 (plurality opinion). The Court reached
reconciliation by holding that Tennessee’s “campaign-
free-zone” regulation was a constitutionally permissible
compromise of the conflict between the right of free
speech and the right to vote. Jd. at 211.

This case should be resolved by the same
reconciliation. Burson held that Tennessee’s statute
survived strict scrutiny because its restrictions were
“necessary to protect” the “fundamental right . . . to
cast a ballot in an election free from the taint of
intimidation and fraud.” Jd. at 211. Justice Kennedy
concurred in that compromise resolution because “the
First Amendment permits freedom of expression to

34

yield to the extent necessary .. . to protect the integrity
of the polling place where citizens exercise the right to
vote.” Id. at 213-14 (Kennedy, J, concurring).
Minnesota’s statute, which is subject only to the more
deferential standard of review applicable to regulations
of speech in nonpublic forums, is a reasonable means of
protecting the right to vote. See id. at 214-16 (Scalia,
J., concurring in the judgment) (finding Tennessee’s
statute a “reasonable” regulation of a nonpublic forum).

Another of this Court’s precedents provides an
additional factor that, when considered, supports the
compromise reached in Burson and requires a similar
resolution of this case. In Lehman, a political
candidate challenged on First Amendment grounds a
city policy that allowed placard advertisements on the
city transit system but prohibited political
advertisements. 418 U.S. at 299-301 (plurality
opinion). In petitioners’ parlance, the candidate sought
to exercise his right to political speech through a
passive display.‘

The candidate’s challenge was unsuccessful. The
plurality opinion emphasized that the Court had “been
jealous to preserve access to public places for purposes
of free speech,” but that it had always looked to “the
nature of the forum and the conflicting interests
involved .. . in determining the degree of protection
afforded by the [First] Amendment to the speech in

‘With a message that seems utterly innocuous in today’s climate,
the candidate’s proposed placard contained his likeness and the
following copy: “HARRY J. LEHMAN IS OLD FASHIONED!
ABOUT HONESTY, INTEGRITY AND GOOD GOVERNMENT.”
Lehman, 418 U.S. at 299 (plurality opinion).

35

question.” Jd. at 302-03. Because the forum in
question—a public street car—was not an open space
and its users were a “captive audience” with their own
constitutional interests, the city’s regulation of political
speech did not violate the First Amendment. /d. at
303-04.

Justice Douglas, concurring, elaborated on the
conflicting interests at stake. A streetcar is used by
“people who because of necessity become commuters
and at the same time captive viewers or listeners.” /d.
at 306-07 (Douglas, J., concurring). In his view, the
candidate “clearly hald) a right to express his views to
those who wishled] to listen,” but “he hald] no right to
force his message upon an audience incapable of
declining to receive it.” Id. at 307. Commuters’ right
to be free from forced intrusions on their privacy
“precludeld] the city from transforming its vehicles of
public transportation into forums for the dissemination
of ideas upon this captive audience,” which “has no
choice but to sit and listen.” Jd.

The voter in the polling place is just as much, if not
more, a captive audience. And her conflicting
interest—the right to vote—is certainly as important
as, and likely much more important than, a commuter’s
right to privacy. To exercise her fundamental,
constitutional right to vote she “has no choice but” to be
in her assigned polling place. She is, thus, the forced
recipient of political messages displayed on the shirt or
the cap of the voter across the room and on the button
sported by the voter next to her in line. She cannot
escape the sting of social pressure, intimidation,
confusion, or distraction without leaving the polling
place and thereby forfeiting her right to vote.

36

Indeed, the record in this case reveals that
petitioners’ “Please I.D. Me” buttons were intended to
have just such effects on exactly this captive audience.
At least part of petitioners’ admitted purpose was to
bluff voters in the polling place into believing they were
legally required to produce [Ds or else leave without
voting. JA 104-105; Pet. App. D-12 (district court
recognizing that “[t|his intimation could confuse voters
and election officials and cause voters to refrain from
voting because of increased delays or the
misapprehension that identification is required”).

In short, the reconciliation this Court reached in
Burson—which, contrary to petitioners’ assertions, did
take into account individuals’ right to display passive
political expression—applies equally here. And that
reconciliation is easier in this case because the interior
of the polling place is a nonpublic forum that people
must visit to exercise their fundamental right to vote.

37

CONCLUSION

The judgment of the Eighth Circuit should be
affirmed.

Respectfully submitted,
Herbert H. Slatery III

Sarah K. Campbell
Special Assistant to the Solicitor General

and the Attorney General

Jonathan David Shaub
Assistant Solicitor General

Office of the Attorney General
P.O. Box 20207

Nashville, TN 37202

(615) 741-3492

andree. blumstein@ag.tn.gov

Counsel for Amicus Curiae
State of Tennessee

Dated: FEBRUARY 2018

38

Counsel for Additional Amici

CURTIS T. HILL, JR.
Attorney General

State of Indiana

200 West Washington St.
Room 219

Indianapolis, IN 46204

DEREK SCHMIDT
Attorney General
State of Kansas

120 SW 10th Avenue

JIM HOOD
Attorney General
State of Mississippi
P.O. Box 220
Jackson, MS 39205

TIMOTHY C. FOX
Attorney General
State of Montana
P.O. Box 201401
Helena, MT 59620

DOUGLAS J. PETERSON
Attorney General

State of Nebraska

2115 State Capitol Bldg.
Lincoln, NE 68509

PETER F. KILMARTIN
Attorney General

State of Rhode Island
150 S. Main St.
Providence, RI 02903

KEN PAXTON
Attorney General
State of Texas

P.O. Box 12548
Austin, TX 78711-2548

SEAN D. REYES
Attorney General

State of Utah

P.O. Box 142320

Salt Lake City, UT 83114

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0752%3A21. Public record. Not legal advice.