Symposium: What’s the harm in a T-shirt?

Charles Rothfeld is special counsel at Mayer Brown. He will file an amicus brief on behalf of the State and Local Legal Center supporting the respondents in Minnesota Voters Alliance v. Mansky.

The petitioners and amici challenging Minnesota’s ban on the display of political apparel, buttons and insignia at polling places try to put a reasonable face on their argument. They are, they say, engaging in core political speech. They just want to wear shirts expressing their political philosophy when they go to vote. And what could be more quintessentially American than wearing a T-shirt with a catchy statement? Where’s the harm in that?

In fact, history, common sense and the reality on the ground tell us that there can be a lot of harm in that – harm of a type that Minnesota, and the many other states with similar laws, are reasonably trying to prevent.

Start with the history that led to the enactment of these laws in the first place. States put the challenged restrictions in place as part of broad election reforms aimed at addressing general disorder and violence around polling places, which could be fueled by the display of political paraphernalia and insignia.

Although we now associate Election Day with lines of voters waiting peacefully to perform their civic duty, that was not the model for much of America’s history. To the contrary, the strong feelings and tribal disputes that often are associated with elections – then as now – easily led to intimidation, harassment, violence and the exclusion of potential voters from the polls.

Prior to the 20th century, Election Day characteristically took on a circus atmosphere, sometimes marked by fistfights and vocal arguments. This disorder often degenerated into chaos at the polling place, with poll workers unable to prevent campaign-related violence and voter intimidation. Physical clashes between opposing parties and ethnic groups became so common in some areas that they were considered the norm, not the exception. As the Supreme Court noted in Burson v. Freeman, one effect of this disorder was to “keep away elderly and timid voters of the opposition.”

And political apparel, along with other insignia, was a significant contributor to this chaotic and disruptive environment. Voters were targeted for intimidation (or encouragement) based on their clothing and other signals of party allegiance, with crowds insulting voters who appeared to be supporting the opposing party.

It was in response to this widespread voter intimidation and disorder that, around the turn of the 20th century, states like Minnesota enacted laws that prohibited various forms of electioneering, including the distribution and display of political insignia. In 1893, the Minnesota legislature forbade anyone within 25 feet of the entrance to the polling room to ask, persuade or endeavor to persuade any person to vote for any particular candidate or to suggest that he do so. By 1912, the state added the provision prohibiting the wearing of political badges, buttons or other insignia at or about the polls on the day of an election.

These state laws securing the vicinity of the polling place substantially reduced the “open auction” nature of elections. In doing so, states promoted peace and order at the polling place, protecting the integrity of elections. Our modern, usually orderly elections reflect the success of these laws in safeguarding the electoral process.

But disruption at the polling place is not entirely a phenomenon of the past. Common experience – and even a passing glance at Election Day news – shows that elections still generate intense feelings, sometimes producing polling-place fights, intimidation and attempts to suppress voting.

This sort of polling-place behavior has an obvious effect on the voters immediately involved, but it also has critical consequences for the voting process more generally. Disruption bogs down the electoral mechanism, causing delays that cascade over time, leading voters at the back of the line to “renege” by leaving before actually casting a ballot, or to “balk” – that is, to not show up to vote at all — as a consequence of experiencing past voting delays. In the aggregate, these disruptions have the effect of keeping millions of people from the polls and sapping confidence in the electoral system.

This is the real problem that regulations like Minnesota’s are designed to address. Consider the “Please I.D. Me” shirt at issue in this case. If shirts like this are allowed, voters entering the polling place might mistakenly believe that the people wearing them are poll workers and that voters are required to have an ID to vote in Minnesota; poll workers themselves might become confused about state law’s requirements; voters without an ID might leave without casting a vote; and, in any event, cascading delays while the matter is straightened out could bog down the vote, as poll workers who notice the problem are diverted from their other duties to explain that an ID is not needed to vote in Minnesota. None of these dangers is theoretical: The point of the “Please I.D. Me” shirt was to cause confusion.

Alternatively, “Please I.D. Me” shirts could provoke those with ideological disagreements to confront the shirt-wearers. Opposing activists might don shirts of their own stating, for example: “Voter I.D. Laws Are Racist.” Fights between the two sides might break out. Voters not aligned with either side would confront an increasingly hostile atmosphere. Poll workers might have to expend their limited time and energy ensuring that voters are not harassed or scared off by the hostility. Given the history of polling-place disruptions, these are not fantastic scenarios.

And this is just one T-shirt. Fifteen minutes spent looking at political T-shirts and buttons for sale online reveals the enormous range of harassing, intimidating and fight-provoking materials available, for purchasers at every spot along the political spectrum.

There are those that could intimidate disfavored groups: “Get the Fuck Back Across the Border”; “Speak Fucking English”; “How to Catch an Illegal Immigrant” (illustrated with a picture of two tacos under a box); “I Learned Everything I Need to Know About Islam on 9.11”; “Put the White Back in the White House”; “Swing State” (illustrated with a picture of a noose); “AIDS Kills Fags Dead.”

There are those that could be seen to threaten violence: “Ammo is Expensive: Do Not Expect a Warning Shot;” “If at First You Don’t Succeed, Reload and Try Again;” “Sometimes I Aim To Please, Other Times I Shoot to Kill.”

And there are those that simply seem designed to provoke the other side: “I’d Rather Shower at Penn State Than Vote For Obama”; “Heil Trumpler”; “Dump Trump: Make America Riot Again”; “Tinkle tinkle little czar, putin put you where you are”.

Given our history of electoral disruption — and taking account of human nature and common experience – it is easy enough to anticipate the harm that such apparel could cause if worn in the polling place. On Election Day, feelings are running high. Voters on opposing sides are packed together, often forced to wait impatiently in long lines. State resources to maintain order are limited and stretched thin. In this context, it would be surprising if political apparel that was designed to provoke, intimidate and confuse voters did not have the desired effect.

Is the state nevertheless powerless to anticipate, and try to forestall, these obvious dangers? The petitioners in this case say it is. The First Amendment, they say, protects offensive speech; there can be no heckler’s veto; as a general matter, the government may not silence a speaker because it has an inchoate fear of the bad things that might follow from his or her speech. And the petitioners are, of course, correct in these general observations. The First Amendment does bar the government from prohibiting you from wearing a T-shirt that depicts Hillary Clinton as a witch or Donald Trump as Hitler when you are in your home, or on a public sidewalk or at the National Mall.

But the petitioners are wrong in this case, for a very basic reason. A polling place is not a public forum like a sidewalk or park. It is a facility that has been established by the state for a limited and specific purpose that is not consistent with unfettered speech. That means it is a place where overbreadth doctrine – upon which the petitioners heavily rely – has very limited application, and where the state has substantial flexibility to restrict speech when doing so is reasonably necessary to advance the forum’s purpose.

That is just what Minnesota did. Barring a demonstration of discrimination in the application of the state’s rule – a demonstration that the petitioners cannot make – Minnesota’s law should be upheld.