Ballot Disclosure Laws: A First Amendment Anomaly

Today, the Digital Media LawProject is launching a new guide to photography and filming at this year’s presidentialelection, Documenting the Vote 2012. This resource provides a wide range ofinformation for all fifty states plus the District of Columbia, regarding lawsthat restrict the use of cameras in and around polling places (as well as otherjournalistic activities).

One particular type of law,common to many states, is worthy of particular note. As reflected in our newguide, many states have statutes that prohibit the display of one’s own markedballot to others. A small number of these states only prohibit disclosure ofone’s ballot in the voting room or prior to submission of the ballot, but most imposea flat prohibition on disclosure backed up by criminal penalties orcancellation of the vote in question. These statutes by their explicit terms appearto ban sharing of a photograph of one’s ballot even after the election is over.

Now, we can debate the wisdom ofa voter openly declaring the candidate for whom he or she voted. There aresound reasons for a person to keep his or her ultimate selection secret,whether to prevent intimidation at the polling place or retribution byemployers or others after the fact. It is easy to imagine situations in whichthe thoughtless posting of a marked ballot on Facebook could result in negativeconsequences, as with the posting of so many other ill-advised Facebook photos.

And yet, the First Amendment’sprotection is at its peak in the realm of speech on political issues. Can a law prohibiting a voter from disclosinghis or her own marked ballot be constitutional?

Content-neutral or content-based?

At the outset, it is important todistinguish ballot disclosure laws from other modes of preventing a voter fromdisclosing his or her vote. Severalstates also have laws that would prohibit the use of cameras within thepolling place, making it impossible to share a photograph of a marked ballot. Thereis less of a question that laws banning cameras at the polls are constitutional.(Although it might seem paradoxical that one might have a First Amendment rightto publish a photograph that one does not have a First Amendment right to take,this is a paradox familiar to anyone who has used a camera in a courtroom. See,e.g., Commonwealthv. Barnes, 461 Mass. 644 (2012) (court order forbidding disclosure of videotaken in courtroom held unconstitutional, despite fact that videographer had noFirst Amendment right to shoot the video).)

Similarly, ballot disclosure lawsare not complete bars to disclosure of a voter’s choice; voters are free todiscuss their votes, albeit without proof in photographic form. But despite thefact that a ballot disclosure law does not forbid other methods ofcommunicating one’s vote, there is a strong argument that such a law is not acontent-neutral restriction on the manner (as in “time, place, or manner”) ofspeech.

The U.S. Supreme Court has upheld“reasonable ‘time, place, or manner’ restrictions, but only if they arejustified without reference to the content of the regulated speech.” Wardv. Rock Against Racism, 491 U.S. 781, 791 (1989).  In Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99 (1972),a case concerning a ban on picketing and demonstrations that applied to allsuch activity except labor disputes, the Supreme Court stated that a law that specifically targets thecontent of a particular method of speech:

itself describes impermissible[activity] not in terms of time, place, and manner, but in terms of subjectmatter. The regulation thus slips from the neutrality of time, place, andcircumstance into a concern about content. This is never permitted.

See also Bursonv. Freeman, 504 U.S. 191, 197 (1992):

Whether individuals may exercisetheir free speech rights near polling places depends entirely on whether theirspeech is related to a political campaign. … This Court has held that the FirstAmendment's hostility to content-based regulation extends not only to arestriction on a particular viewpoint, but also to a prohibition of publicdiscussion of an entire topic.

In most if not all cases, bans onthe disclosure of marked ballots are intended to prohibit the revelation of specificcontent – in a way independent of the viewpoint of the speaker, true, but as inBurson the restricti