June 14, 2018

Supreme Court polling place dress code decision is victory for free speech

By Wen Fa Attorney

Originally published by The Hill June 14, 2018.

In striking down a Minnesota law that bans voters from wearing clothing featuring political views, the Supreme Court has delivered a critical defense of the First Amendment right to free expression. Voters of all political persuasions can now wear shirts expressing their political beliefs — whether those shirts feature the logo of the ACLU, the AARP, the World Wildlife Fund, or even Ben & Jerry’s.

But the decision in the case of Minnesota Voters Alliance v. Mansky carries a lesson of far greater consequence than a voter’s clothing choices: This decision is a strike against laws giving government officials too much discretion to censor viewpoints they don’t like. As the court noted today, states cannot impose blanket bans on political expression. Rather, they “must be able to articulate some sensible basis for distinguishing what may come in and what may stay out” of the polling place.

This victory for free speech was eight years in the making. The story began in 2010, when Minnesota resident Andy Cilek arrived at his polling place in a t-shirt featuring the logo of the local Tea Party organization. A poll worker twice stopped him from voting, ordering him to remove his shirt or cover up before entering the polling place. The poll worker finally allowed Cilek to vote five hours later, after recording his name and address for potential prosecution.

In response, Cilek filed suit, citing a violation of his right to free expression under the First Amendment. Over the past eight years, court after court declined to defend his right to free speech.

Until the Supreme Court issued its decision.

A key argument in the case was that the apparel law inevitably would be enforced in an unequal manner. Conservative poll workers might be more willing to enforce a political-apparel ban against voters wearing the apparel of the AFL-CIO; liberal poll workers, against voters wearing Chamber of Commerce t-shirts.

Examples abound of voters who were unwittingly ensnared by political apparel laws. In one, voters wearing Massachusetts Institute of Technology shirts that said “MIT” were flagged by a poll worker who thought the shirts expressed support for 2011 presidential hopeful Mitt Romney. In Houston, a voter nearly lost her right to vote for wearing an Alaska souvenir t-shirt, because a poll worker saw it as an endorsement for Sarah Palin. In a third case, a voter was censured in 2016 for wearing an “I miss Bill” t-shirt, even though Bill Clinton had not been on the ballot for the last 20 years.

The court’s decision doesn’t just vindicate Andy’s right to wear a Tea Party t-shirt — it vindicates the rights of all Americans to wear apparel carrying the emblem of their favorite organizations. The Minnesota statute banned voters from wearing shirts with the logo of the NAACP, AFL-CIO, or the Chamber of Commerce, among others, under threat of prosecution. Arguing before the Supreme Court, the government’s lawyer stated there even would be times in which voters couldn’t wear Minnesota Vikings jerseys into the polling place.

Justice Samuel Alito pressed the government’s attorney to show how poll workers could enforce the statute in an even-handed way. Yet the exchange only underlined the risk of biased enforcement. Under the government’s view, voters could vote while wearing shirts bearing the text of the First Amendment, but would risk prosecution if they wore t-shirts with the text of the Second Amendment. The court expressly noted the government’s untoward statement at oral argument in its decision striking down the Minnesota law.

As the American Civil Liberties Union observed in an amicus brief supporting the challenge to the Minnesota law, the political apparel ban forced citizens to choose between their right to speak and their right to vote. With its decision, the Supreme Court advanced both rights. Voters, especially those with minority viewpoints, can go to the polls without fear that a poll worker would single them out for their views. And voters who waited hours to vote no longer will be sent home for a change of clothes just because they were wearing t-shirts that offended the political preferences of a poll worker.

The logic of today’s decision extends far beyond the voting booth. The ruling limits government’s ability to censor speech in other public places, such as college campuses or city council meetings. The decision reaffirms the principle that the proper response to disagreeable speech isn’t censorship, but more speech.

Encroachments on fundamental rights rarely happen all at once. Instead, rights are more likely to be eroded over time by misguided and poorly formulated laws that grant unchecked authority to public officials. Such was the case with Minnesota’s ban on politically themed apparel in polling places, which the Supreme Court has now recognized as an assault on Americans’ right to free speech. That’s a victory for all of us, regardless of your political — or sartorial — preferences.

Wen Fa is an attorney with Pacific Legal Foundation, a nonprofit organization that defends individual liberty and represented the Minnesota Voters Alliance petitioners free of charge.

What to read next