Don’t Burn Your House Down to Roast the Pig: Why Your Ballot-Selfies and Yard Signs Aren’t Breaking Any Laws

Don’t Burn Your House Down to Roast the Pig:[1] Why Your Ballot-Selfies and Yard Signs Aren’t Breaking Any Laws

Rachel Taylor, KLJ Staff Editor[2]

What may seem obviously included in the First Amendment protections afforded to citizens was recently called into question by states wanting to carve out exceptions during election time. Both New Hampshire and Texas tried to infringe on these rights by preventing the American people from expressing themselves through yard signs and ballot-selfies.

In a recent unanimous decision by the 1st Circuit Court of Appeals, a New Hampshire statute attempting to ban ballot-selfies was struck down as an infringement on voters’ right to free speech.[3] The purported purpose of the statute was to prevent voter intimidation and vote buying and, as such, it banned voters from taking and posting photos of their voted ballots.[4] The court pointed out that not a single instance of voter intimidation or vote buying was cited, and further no vote-selling market has emerged.[5] As such, the remote potential for an occurrence is not sufficient to violate a voter’s right to free speech.[6]

Political speech is at the core of the protections provided by the First Amendment.[7] And ballot-selfies in particular are a form of that political speech, they “have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate.”[8] The social media company Snapchat submitted an amicus brief pointing out young people in particular participate in the election process by making their voices heard through ballot-selfies and the use of Facebook and Snapchat; specifically, 22% of registered voters publicized how they voted on social media in 2012.[9]

Similarly, in Texas, the Court of Appeals struck down a provision in the Texas Highway Beautification Act, which was challenged because it thwarted a private citizen’s ability to post campaign signs in his yard.[10] The Act regulated outdoor advertising by providing a window in which candidate preference signage was permitted, ninety days leading up to, and ten days following, the election.[11] The court held this was a violation of First Amendment protections, using the content-based test from the recent Supreme Court decision, Reed v. Town of Gilbert: “[a]bove all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[12] Specifically, even though the law was facially content-neutral, the motives for enacting it were content-based.[13]

So, whether it is through a yard-sign proudly displaying your candidate’s name, or taking a selfie with your voted ballot, feel free to express yourself this election season. The court has reiterated your right to do so in unequivocal terms. As Judge Lynch wrote, a ballot-selfie [and candidate signage] prohibition is like “burn[ing down] the house to roast the pig,”[14] Whatever is the purported aim of these laws, allowing them to stand would be at the expense of far too much.

[1] United States v. Int’l Union United Auto., Aircraft & Agric. Implement Workers of Am., 352 U.S. 567, 596 (1957).
[2]J.D. expected May 2018.
[3]See Rideout v. Gardner, No. 15-2021, 2016 U.S. App. LEXIS 17622, at *21 (1st Cir. Sept. 28, 2016).
[4]Id. at*1-2.
[5]Id. at *14-15.
[6]Id. at *15-16.
[7]Id. at *21.
[10]See Auspro Enters., LP v. Tex. DOT, No. 03-14-00375-CV , 2016 Tex. App. LEXIS 9469, at *2-3, *37-39 (Tex. Ct. App. Aug. 26, 2016).
[11]Id. at *15
[12]Id. at *9 (citing Reed v. Town of Gilbert, 135 S. Ct. 2218 (U.S. 2015)).
[13]Id. at *10, *24-26.
[14]Rideout, No. 15-2021, 2016 U.S. App. LEXIS 17622, at *18 (internal citation omitted).

*Featured Image by Stephen Velasco, licensed under CC BY 2.0.