Symposium: Don’t tread on my passive political speech

Elizabeth Slattery is a legal fellow at The Heritage Foundation and co-host of SCOTUS 101, a podcast about the Supreme Court. 

When was the last time a T-shirt changed the way you voted? Probably never, but the state of Minnesota thinks you’re much more impressionable. It’s so concerned that voters might influence others with their clothing choices that it prohibited wearing items that could be construed as “political” — such as a “Please I.D. Me” button or a “Don’t Tread on Me” T-shirt — from polling places on Election Day. Offenders are subject to civil fines of up to $5,000 and the possibility of criminal charges.

Yet, as the Supreme Court has reiterated on numerous occasions, political speech is “central to the First Amendment’s meaning and purpose” and deserves the “fullest and most urgent application” of the First Amendment. Any restriction of political speech must be narrowly tailored to advance a compelling state interest.

That does not mean that political speech is without limits. Allowing campaign surrogates to use a bullhorn to broadcast their message inside a polling place or follow people into the voting booth to make a last-minute pitch for their candidate would interfere with the right to vote free from undue interference. States have legitimate interests in preventing intimidation and violence at the polls and ensuring the integrity of elections.

Recognizing that some limits are necessary, every state has laws on the books regulating election-related speech in and around polling locations on Election Day. Indeed, the Supreme Court upheld Tennessee’s ban on soliciting votes and handing out campaign materials on the sidewalk outside polling places in Burson v. Freeman. A plurality of the court determined that Tennessee’s attempt to ensure that voters could cast their ballots “free from the taint of intimidation and fraud” outweighed unfettered free speech — at least within 100 feet of polling places. In Minnesota Voters Alliance v. Mansky, the Supreme Court will consider whether states can take this further, by prohibiting all political speech, even if it’s unrelated to the election at hand.

Minnesota bans T-shirts, hats, buttons or any other item with a “political” message from polling places. At first glance, this may seem the same as a ban on campaigning, but a closer look shows that Minnesota’s law prohibiting even passive political speech is simply too vague and broad to withstand the exacting scrutiny the First Amendment demands.

The relevant law states, “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” The law does not define “political,” so election officials in Minnesota came up with guidelines to help poll workers determine what counts, including no-brainers such as messages referencing political parties and candidates or issues on the ballot. But the guidelines also include “issue oriented material designed to influence or impact voting” and “material promoting a group with recognizable political views.”

Minnesota claims its law is necessary to “protect Minnesotans’ right to vote in an orderly and controlled environment without confusion, interference, or distraction.” But the state already prohibits campaigning within 100 feet of polling places; transporting voters to polling places in exchange for votes; and threatening, bribing or otherwise coercing people to vote for or against a candidate or ballot question. These are all reasonable measures intended to safeguard the integrity of elections, allow voters to cast their ballots without being intimidated or pressured to support a particular side, and ensure peace and order at polling places.

Even if you accept Minnesota’s interest in preventing confusion and distraction, it’s unclear how banning voters from wearing “political” T-shirts, hats and other apparel advances that interest. But what is clear is that Minnesota’s vague law places too much discretion in the hands of poll workers to decide what is political — and that runs the risk of highly selective enforcement.

In fact, Joe Mansky, the elections manager for Ramsey County, Minnesota, and one of the respondents in this case, admitted that a Minnesota Vikings jersey could be considered political, if, for example, there were a question on the ballot involving funding for construction of a new stadium. The petitioner in this case, Andrew Cilek, was told he was violating the law by wearing a “Please I.D. Me” button and a “Don’t Tread on Me” T-shirt with an image of the Gadsden flag. Neither his button nor his T-shirt bore any relation to a candidate or issue on the ballot that year. And the Gadsden flag is a historically significant symbol of the American Revolution that was first used by the fledgling American Navy and the Continental Marines.

If a pro-football team and the Gadsden flag are out, what else falls on the wrong side of the “political” line? Could poll workers bar someone wearing a “Love Wins” T-shirt because it’s affiliated with the LGBT movement? How about a flag pin? A Che Guevara bag? A “Sweet Meteor O’Death” button? A “Choose Life” T-shirt? A Women’s March pink pussyhat? There is nothing violent, coercive or intimidating (or, indeed, confusing) about wearing a T-shirt or other apparel with these messages, and yet, under Minnesota’s guidelines, any of these items easily could be prohibited.

And Minnesota isn’t alone — at least nine other states have similar bans on political apparel, and news stories pop up frequently during election years about overzealous poll workers enforcing restrictions on speech. For example, during the 2016 election, “Reagan/Bush” and “I miss Bill” T-shirts were prohibited in Arizona. In 2012, poll workers cracked down on people wearing MIT apparel (as in “Massachusetts Institute of Technology”) because Mitt Romney was on the ballot. In 2008, a woman in Texas was singled out for wearing an Alaska T-shirt when Sarah Palin was on the ticket. These bans reached apparel that conveyed political messages from another era, as well as apparel that had nothing to do with politics. It’s hard to see how any of these messages would have unduly influenced other voters casting their ballots.

Although states like Minnesota can and should take steps consistent with the First Amendment to prevent overt campaigning, intimidation, coercion and violence, enforcing a complete ban from polling places on T-shirts and other apparel that might be construed — even mistakenly — as “political” treads too far into the realm of protected speech. The Supreme Court should hold Minnesota to the exacting standards of the First Amendment.