June 14, 2018

Victory for First Amendment Freedom

By Deborah J. La Fetra Senior Attorney

Political speech is the most protected type of speech in the country — including in the most restricted space in American civic life — a polling place. Today, in Minnesota Voters Alliance v. Mansky, the Supreme Court struck down a Minnesota statute that prohibits the wearing of any “political badge, political button, or other political insignia” in polling places. Writing for the 7-2 majority, Chief Justice Roberts held that the broad term “political,” combined with the state’s haphazard interpretation and enforcement, was flatly unreasonable and violated the First Amendment’s Free Speech Clause. PLF represented the plaintiffs before the Supreme Court.

In deciding the case, the Court applied the most government-friendly free speech test — whether the state’s prohibition was “reasonable.” Under this test, the State had to articulate “some sensible basis for distinguishing what [speech] may come in from what must stay out.” The Court held that the Minnesota statute failed this test for several reasons.

First, the ban on “political” speech covers a vast amount of self-expression, ranging from the naming of candidates or issues to more general slogans such as “Support Our Troops,” “#MeToo,” “All Lives Matter,” and even a shirt simply displaying the text of the Second Amendment.

Second, the law would ban even the wearing of logos of organizations that took political positions in election cycles. In this way, it bars citizens from simply wearing t-shirts supporting the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben and Jerry’s. The Court noted the law could apply to a Boy Scout leader in uniform, transforming the uniform into banned “political” apparel because of the politics surrounding the Boy Scouts.

A third problem with the statute is that it gives Minnesota poll workers unbridled discretion to interpret and enforce the meaning of the “political” apparel ban. While the Court assumed that most poll workers would strive to enforce the statute in an evenhanded nature, their discretion—coupled with the lack of objective guidance from the state—creates an opening for biased enforcement that undermines the state’s legitimate interest in maintaining a polling place free of distraction and disruption.

While carefully crafted, today’s decision can be expected to have a wide impact on free speech rights. Most immediately, statutes in other states that limit what may be worn in a polling area are subject to challenge and may not be used to prevent shirts and other items expressing common political beliefs and affiliations. But the First Amendment rights recognized in the decision go beyond polling places. The protections afforded to common political apparel in polling places should also apply to all other non-public fora: state university campuses, post offices, airports, lobbies of government office buildings, and so on. Today’s decision confirms that the government cannot ban shirts and hats with ideological and political statements in such places. The Constitution now clearly protects all Americans’ fundamental right to peacefully wear “political” clothing on government property without overbearing state interference.

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Minnesota Voters Alliance v. Mansky

The U.S. Supreme Court struck down a polling-place dress code in Minnesota, upholding free speech rights across the nation and protecting the right of Americans to peacefully express their political views at the polls.

PLF represented Minnesota voters, including Andy Cilek, who showed up at his polling place wearing a t-shirt that read “Don’t tread on me.” State law bans voters from wearing any “political” apparel at a polling place. This includes any t-shirt, button, or other items that could be construed as political, or even organizations that take political positions such as the AFL-CIO or NRA. A poll worker not only prevented Andy from voting for five hours, but also took down his name for possible prosecution.

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