Minnesota's Top Court Says Hotel Guest Records Are Protected By The State's Constitution

from the take-your-bait-and-tackle-elsewhere,-coppers dept

Minnesota's top court has redefined the contours of the Third Party Doctrine for the betterment of the state's residents and visitors. [h/t FourthAmendment.com] The case deals with hotel/motel guest records, which have historically been given almost no legal protection.

The argument against protection is that guests give up this information voluntarily to private companies. But you can't get a room without giving up this information, so it's not nearly as voluntary as the government portrays it. This came to head in the US Supreme Court back in 2015. The nation's Supreme Court decided -- very narrowly -- that a Los Angeles ordinance giving police officers warrantless access to guest records violated hotel owners' rights by not giving them any way to challenge demands (other than going to jail).

The Minnesota Supreme Court does not rely on this decision despite reaching a conclusion that results in better protections for hotel guests. The difference between the two cases is the entity petitioning the court. In the US Supreme Court case, it was motel operators arguing warrantless access violated the Fourth Amendment, if not California's own Constitution. In this case, it's a guest arguing against the warrantless access to his records -- something the Minnesota court points out in a footnote. From the decision [PDF]:

The court of appeals also concluded that Leonard erroneously relied on City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct. 2443 (2015). State v. Leonard, 923 N.W.2d 52. Patel involved a challenge by hotel operators, not hotel guests, concerning the operators’ constitutional rights, therefore avoiding the issue of the third-party doctrine.

Nevertheless, the Third Party Doctrine is explored by the state court, leading it to a conclusion that narrow that doctrine's reach. The resulting conviction for check forgery began with nothing but a fishing expedition.

Law enforcement officers arrived at a Bloomington hotel on August 14, 2015, for a hotel interdiction. The officers were not responding to a particular call. Without a warrant and without any individualized suspicion of criminal activity, the officers told the clerk on duty that they wanted to examine the guest registry and to be provided with the name of any guest who paid in cash.

State law says all hotel operators must collect this information and make it available to law enforcement. If they don't (like in the city of Los Angeles), the hotel operators can be charged with a crime. But this isn't about the hotel operator, who wasn't involved in this challenge of a law enforcement search. It's about the defendant, who argued a warrantless, suspicionless search of hotel records violated the state's Constitution.

This was the end result of the officers' perusal of hotel records.

The officers then ran a background check and found that Leonard had prior arrests for, among other things, drugs, firearms, and fraud. Based on this information, the officers developed an individualized suspicion that Leonard was involved in criminal activity and decided to conduct a “knock and talk” at the door of Leonard’s hotel room. When Leonard heard the officers knock, he opened the door and gave them limited consent to search the room, but withheld access to his laptop, cell phone, and a file folder where several checks were visible. The officers subdued Leonard through a physical struggle after he tried to flee. After securing a search warrant, the officers discovered over $2,000 worth of suspicious checks paid to the order of “Spencer Alan Hill,” over $5,000 in cash, and check-printing paper.

Paying in cash shouldn't be treated as reasonable suspicion of criminal activity. Perfectly innocent people often engage in this activity, if only to lower their digital footprint. Here's another excellent footnote from the court:

The dissent contends that Leonard did not exhibit a subjective expectation of privacy in his sensitive location information. We disagree. In a world of electronic money transfers using debit cards, credit cards, and other electronic means of payment, Leonard’s cash payment evidences an intent to conceal his presence at the hotel.

Both the trial court and the state appeals court found in favor of the government. They said warrantless, suspicionless searches of hotel guest records did not violate the state's Constitution, which prohibits "unreasonable searches." The top court disagrees.

First off, the officers had no compelling reason to show up at the hotel to demand records.

The Bloomington Police officers had never heard of Leonard when they arrived at the hotel. They had not procured a warrant to search anything. Nor were they called to the hotel by its employees because of concerns regarding any particular guest. Thus, it is undisputed that they acted without individualized suspicion when they conducted the hotel interdiction and examined the guest registry.

The court goes on to say that even though this fishing expedition resulted in the discovery of criminal activity, there are several reasons for people to conceal their identity from hotel operators and several reasons one's privacy might be unreasonably invaded by a suspicionless search of hotel records.

Imagine instead that Leonard had stayed overnight at the hotel to attend a political or religious conference in the hotel ballroom, or that he had stayed overnight before a medical appointment in hopes of keeping a diagnosis private. In these examples, the guest’s highly sensitive location information is revealed, regardless of what actually occurred in the hotel room. That such information would be accessible to the government through a fishing expedition, where the hotel guest was a stranger to law enforcement before the officers’ random search, offends our core constitutional principles.

The court says guest records are sensitive information. As such, they cannot be swallowed up by the Third Party Doctrine. The court doesn't create a warrant requirement, but does say officers need to have something more than an excessive amount of free time on their hands before demanding access to guest records.

We hold that the law enforcement officers conducted a search under Article I, Section 10 of the Minnesota Constitution when they examined the guest registry. We hold further that law enforcement officers must have at least a reasonable, articulable suspicion to search a guest registry.

Part of the underlying discussion pits society's view of the term "reasonable" versus the government's very liberal interpretation of this term. The government comes out on the losing end here.

Simply put, we think that most Minnesotans would be surprised and alarmed if the sensitive location information found in the guest registries at hotels, motels, or RV campsites was readily available to law enforcement without any particularized suspicion of criminal activity.

The court further points out that its declaration that access to guest records does not mean "access without any articulable suspicion" will not keep cops from busting criminals.

Nothing about our decision prevents law enforcement from partnering with hotels to help staff members recognize signs of trafficking or other crimes. And nothing about our decision prevents hotel operators from contacting law enforcement to relay suspicious observations. If such observations provide the officers with reasonable, articulable suspicion of criminal activity, they may examine the sensitive location information found in a guest registry.

The conclusion is this: the state's Constitution prohibits suspicionless searches, even when read in conjunction with ordinances regulating the hotel/motel industry. While this industry may be subject to more law enforcement scrutiny than most, that fact does not eliminate Constitutional protections granted to residents and visitors. The evidence disappears, along with this source of law enforcement fishing expeditions. Staying somewhere other than your own home does not eliminate privacy protections.

Filed Under: 3rd party doctrine, hotel records, law enforcement, minnesota, records, third party doctrine

Minnesota May Be First State To Pass A Right To Repair Law

from the fix-it-your-damn-self dept

Minnesota appears poised to be the first state to pass "right to repair" legislation taking aim at corporate efforts to monopolize repair. The grass-roots technology movement in support of these bills began in rural America, where the draconian DRM embedded in John Deere tractors made repairing them a costly nightmare for many farmers. The movement has also been prodded along thanks to efforts from companies like Sony, Microsoft, and Apple to effectively ban third-party repair of games consoles and phones; a move that not only restricts consumer freedom and drives up consumer costs, but creates additional unnecessary waste.

California recently became the 20th state to eye such legislation, though Minnesota appears likely to be the first to actually pass such a law. Minnesota's law has passed through committee and awaits a vote in the Minnesota House, and if approved (which seems likely) would take effect in early 2020.

Not too surprisingly, both John Deere and Apple lobbyists have descended upon Minnesota to prevent that from happening. For its part, John Deere doubled down on the primary (and false) argument most of these companies are making; namely that if you let consumers and authorized third-party shops repair consumer tech, you're putting consumers at risk:

"A John Deere spokesperson said the parts, diagnostic and manuals are already available to its owners, and that customers can contact a dealer where “trained technicians provide expertise and assistance with service issues in the shop or, in many cases, remotely in the field.” It stands by the general opposition to release software to the masses, citing the software’s purpose to make sure equipment runs safely, properly, and up to changing standards. Other companies also argue intellectual property should be protected."

Granted that ignores that in many rural areas, there's no "authorized" repair option for hundreds of miles, meaning that farmers often have to pay to have the tractor shipped that distance (generating huge additional costs). In desperation, some tractor owners have turned to using pirated Ukrainian firmware, which obviously creates its own issues in terms of security and stability.

Apple, Microsoft, Sony, and Verizon have all utilized similar arguments, all focused on the unsubstantiated claim that breaking down these repair monopolies will result in a steady parade of untold security and safety horribles. When a similar law was proposed in Nebraska, Apple lobbyists attempted to claim that passing such a law would turn the state into a "mecca for hackers" and various ne'er-do-wells. It's a pretty flimsy argument, one used specifically to obscure one goal: to pad revenues by banning repair shop competition.

As such Apple can often be found harassing independent repair shops all around the world, while ignoring one central truth: as owners of these devices, they should be able to do whatever the hell they'd like to do with them as long as they're not harming themselves or others.

Filed Under: competition, minnesota, ownership, right to repair

Minnesota Lawyers Board Asks State Supreme Court To Smack Paul Hansmeier Around A Bit

from the please-do dept

Grifters just keep grifting. Paul Hansmeier, former copyright troll and more recent ADA troll, is being referred to the Supreme Court of Minnesota for discipline. Last seen trying to weasel his way into bankruptcy to avoid several judgments against him, Hansmeier has had his law license suspended and is facing the possibility of more than a decade in prison.

Now there's this, which asks how much schadenfreude can one person possibly provide?

The board that disciplines lawyers in Minnesota filed a complaint Tuesday in the Minnesota Supreme Court against Paul Hansmeier, alleging that he had tried to defraud the U.S. Bankruptcy Court in Minnesota by hiding or misrepresenting his assets.

Hansmeier has 20 days to respond to the complaint.

The state Supreme Court is already familiar with Hansmeier's, um... work, having said this about him in 2016 when indefinitely suspending his bar license.

Hansmeier committed misconduct in the first matter by bringing a lawsuit for the sole purpose of conducting discovery to find the identity of others against whom claims could be made, making misrepresentations to the tribunal, filing articles of termination for a corporation that contained false statements. failing to comply with discovery requests, failing to pay attorney fees assessed against him, and transferring funds out of his law firm in order to avoid paying sanctions. In a second matter. Hansmeier committed misconduct by participating in the initiation of a lawsuit without a basis in law and fact, making false and misleading statements to the court, failing to pay attorney fees assessed against him by the court. and submitting to the court a financial statement that was false, misleading, and deceptive. In a third matter, Hansmeier committed misconduct by bringing a frivolous action for an improper purpose. And in a fourth matter. Hansmeier committed misconduct by testifying falsely during a deposition, bringing a frivolous claim, and perpetrating a fraud upon the court.

The petition [PDF] is a little longer and delves into Hansmeier's seedy history, starting with his years with Prenda, which is summed up pretty nicely by Minnesota's Office of Lawyers Professional Responsibility.

Before respondent was suspended, respondent, with other lawyers, purportedly on behalf of various entities that held the copyrights to various adult films, instituted hundreds of litigations in state and federal courts throughout the country alleging either copyright infringements via improper downloading of the films over the Internet or wrongful interception or hacking of usernames and passwords to gain access to the purported clients' websites.

Respondent was sanctioned in many of these matters.

Those sanctions were levied in four different lawsuits, racking up nearly $500,000 in fines and fees Hansmeier was supposed to pay. Rather than do that, Hansmeier tried to drum up a belated legal defense fund by engaging in ever more mass litigation, wielding the Americans with Disability Act (ADA) as a tool of extortion against a number of small Minnesota businesses -- a business model of his that's now being investigated by the FBI.

To dodge the sanctions, Hansmeier filed bankruptcy. This was as deceitful as any other litigation he's been involved in. Hansmeier shuffled assets around to keep them from creditors, sold his home without the bankruptcy court's permission, and failed to update the court when his cost of living expenses decreased dramatically.

The OLPR is asking for more fees to be assessed against Hansmeier, as well as possible disbarment. Hopefully, someone will inform the inmates he'll be rooming with that he's not a font of coherent legal strategy, despite his many years as a practicing lawyer.

Filed Under: disbarrment, minnesota, paul hansmeier
Companies: prenda, prenda law

Frontier Hammered By Minnesota AG For Its Refusal To Repair Its Broadband Network

from the don't-try-too-hard dept

For years we've explored how the nation's phone companies don't really even want to be in the broadband business. They routinely refuse to upgrade their networks, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. Telcos in particular have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising then that many telco DSL customers are fleeing to cable, assuming they even have a second option for broadband.

This dynamic often results in some absurd dysfunction. Like in West Virginia, where incumbent telco Frontier has repeatedly been busted in a series of scandals involving substandard service and the misuse of taxpayer money. The graft and corruption in the state is so severe, state leaders have buried reports, and, until recently, a Frontier executive did double duty as a state representative without anybody in the state thinking that was a conflict of interest.

Things aren't going any better for Frontier in Minnesota, where the state AG just issued a scathing 133 page report accusing the company of all manner of dubious behavior, including letting outages go on for months on end without repairs. The report doesn't pull punches in accusing Frontier of violating at least 35 state laws and state guidelines, and routinely neglecting paying customers, putting some customers with medical conditions at risk:

The findings of this investigation detail an extraordinary situation, where customers have suffered with outages of months, or more, when the law requires telephone utilities to make all reasonable efforts to prevent interruptions of service. When interruptions occur, telephone utilities are to restore service “with the shortest possible delay.” Frontier customers with these outages include those with family members with urgent medical needs, such as pacemakers monitored by their medical teams via the customer’s landline.

This report, which was based on 1,000 customer complaints and seven different public hearings, paints a picture of a company that consistently let its networks fall apart, refused to upgrade or repair customer equipment on a timely basis, routinely and aggressively engaged in fraudulent billing practices, and repeatedly ignored customer complaints about all of it. The report includes photos showing Frontier's network gear in various states of neglect:

Or installs where company lines were draped casually through yards, over fences, and even over propane tanks:

Again, if you've followed similar stories focused on Verizon, this kind of behavior is the norm, not some errant exception for the nation's phone companies. And while some states actually hold telcos feet to the fire occasionally, there's a long roster of states (Tennessee and West Virginia quickly come to mind) where the "solution" to these problems has been to completely neuter local regulatory oversight at incumbent monopoly request. This kind of blind deregulation, as you may have noticed, doesn't actually fix anything when dealing with natural, apathetic monopolies.

Again, this kind of apathy hurts the customers of these companies, who've made it pretty clear they no longer really want to be in the residential broadband business. As apathetic telcos hang up on unwanted customers, it's creating a bigger monopoly for cable operators across huge swaths of the country. That, in turn, only ensures that prices remain high and customer service remains an afterthought. And again, the Ajit Pai FCC's tendency to rubber stamp every and all industry desires without holding anybody accountable for anything pretty clearly isn't helping.

Filed Under: broadband, disrepair, minnesota
Companies: frontier

Minnesota AG Just The Latest To Ding Comcast For Shady Fees

from the transparency! dept

How many lawsuits does it take to get Comcast to back off of shady fees designed to falsely inflate the company's advertised prices? Good question.

For several years now cable and broadband providers have been using hidden fees to covertly jack up their advertised rates. These fees, which utilize a rotating crop of bullshit names, help these companies falsely advertise one rate, then sock the consumer with a significantly higher-rate post sale (often when locked into a long-term contract). The practice also allows the company to falsely claim they're not raising rates on consumers. They omit that they're talking about the above-the-line rate being charged, implying that anything below the line (where real fees like taxes are levied) is outside of their control.

Back in 2014, Comcast introduced a new $1.50 per month surcharge it called its "Broadcast TV Fee." Said fee was really just a portion of the cost of doing business for Comcast (programming), busted out of the full bill and hidden below the line -- again to help the company falsely advertise a lower price. Over the last four years Comcast has quietly but quickly pushed this fee skyward, this week informing customers that -- alongside numerous other rate hikes like its "Regional Sports Network" fees -- the company's Broadcast TV fee would now be up to $10 per month for some cable TV customers.

While the federal government (FTC, FCC) routinely turned a blind eye to this practice (regardless of which party was in control), Comcast and other cable ops have been hit by a rotating crop of investigations and lawsuits for the practice. Just before Christmas, Minnesota Attorney General Lori Swanson joined the festivities, announcing that her office had filed suit against Comcast for "charging customers more than it promised for cable television packages, charging for unordered equipment and services, and not delivering prepaid Visa cards promised in its promotions."

The AG's office is quick to point out that Comcast enjoys falsely telling complaining customers that the bogus fees it uses to covertly raise rates are the fault of the federal government:

"Comcast/Xfinity falsely told some consumers who questioned these extra fees that the fees were out of the company’s control. For example, it told one customer that “those fees are actually local fees and correspond to the FCC and we don’t manage those okay? Those aren’t up to Comcast.” It told another customer that “we have no control over the fees.” Comcast is not, however, required by any state or federal law to collect such fees, and does so simply to generate revenue.

When criticized, Comcast has routinely tried to claim that adding these sneaky fees then lying about what they're for is just the company's way of being "transparent" with its customers. Denial appears to be the company's response to these allegations as well, despite the fact the practice has now been well illustrated by countless settlements and lawsuits.

In the streaming video wars to come, Comcast could differentiate itself by being clear with customers about how much its services actually cost, using "zero hidden fees" as a marketing point of pride. This being Comcast, the company is likely to instead move in the opposite direction, and just double down on the practice of misleading and confusing its customers in its relentless quest to nickel and dime the lion's share of America.

Filed Under: broadcast tv fee, fake fees, false advertising, fcc, fees, ftc, lori swanson, minnesota
Companies: comcast

Cops Are Telling Paramedics To Inject Arrestees With Ketamine. Worse, EMS Crews Are Actually Doing It.

from the horrific-behavior-by-all-involved dept

Something strange and disturbing is going on in Minneapolis, Minnesota. Cops have been instructing paramedics to use certain drugs to subdue arrestees, which is about as advisable as allowing paramedics to instruct officers on use of force. Cops don't know what's best for arrestees in terms of medical care. The fact that paramedics have been following their instructions is the most disturbing fact of all. As the Star Tribune reports, cops telling EMS personnel what to do has put people's lives in jeopardy.

Minneapolis police officers have repeatedly requested over the past three years that Hennepin County medical responders sedate people using the powerful tranquilizer ketamine, at times over the protests of those being drugged, and in some cases when no apparent crime was committed, a city report shows.

On multiple occasions, in the presence of police, Hennepin Healthcare EMS workers injected suspects of crimes and others who already appeared to be restrained, according to the report, and the ketamine caused heart or breathing failure, requiring them to be medically revived. Several people given ketamine had to be intubated.

The paramedics are fully complicit in this horror show. They're overriding their own knowledge and medical training with catastrophic results. This atrocious behavior was exposed by a report from the Office for Police Conduct Review. The report showed ketamine injections increased from three in 2012 to 62 in 2017. It wasn't until this report was delivered to police that anyone decided to do anything about it. The Minneapolis Police Commander has now forbidden officers from instructing EMS crews to sedate a subject.

Ketamine is a dangerous drug. The police know this. They classify it as a "date rape" drug, capable of putting people into deep sedation and altering their memories. Healthcare providers know this, too, which is why they're often hesitant to use it as a sedative if the subject has preexisting breathing problems. Ketamine can kill under these circumstances. When used as a first response in the sedation of detainees, medical histories aren't available and the outcome can be death.

Allowing police to "prescribe" sedatives is a horrible idea. The report shows Minneapolis cops nuked arrestees with a powerful sedative just because. In many of the cases examined, there appeared to be no reason to escalate to a dangerous sedative.

To evaluate how the sedative was being used, the Office of Police Conduct Review investigators looked for mentions of the word in police reports, and then reviewed body camera footage from those cases.

“Multiple videos showed individuals requiring intubation after being injected with ketamine, and [police] reports indicate that multiple individuals stopped breathing and/or their hearts stopped beating after being injected with ketamine,” the report said.

The police encounters that led to EMS using ketamine ranged from cases of obstruction of justice to jaywalking, according to the report. One man was dosed with ketamine while strapped to a stretcher and wearing a spit hood.

Unbelievably, the story gets worse. Those dosed with ketamine at the suggestion of police officers suffered rude awakenings at Minneapolis hospitals. Hennepin Healthcare went ahead and enrolled detainees in its ketamine study without their consent. Supposedly consent isn't actually required by law, which makes a sort of cosmic sense when you're studying the effects of a date rape drug. "Enrollees" could opt out afterward, but that offers little comfort when you've been sedated so heavily you need a machine to breathe for you.

This study exacerbated Hennepin Healthcare's ketamine problem. Ramping up dosings at the request of cops had already increased the number of life-threatening reactions to the drug. This incentive allowed this to carried over to day-to-day work, resulting in EMS personnel using ketamine whenever possible, even without verbal shoves from under-educated cops.

Body camera footage from one case showed a woman, after being Maced by police, asking for an asthma pump, the draft report said.

Instead, a paramedic gave her an injection of ketamine.

“If she was having an asthma attack, giving ketamine actually helps patients and we’re doing a study for agitation anyway so I had to give her ketamine,” the unnamed paramedic told a police officer, according to the report.

After receiving ketamine, the woman’s breathing stopped, and medical staff resuscitated her, according to the report.

Of course, there's an explanation for all of this. It comes courtesy of Hennepin Healthcare's top official. And it sounds like something written by police officers, rather than an expert in the medical field.

Dr. William Heegaard, chief medical officer for Hennepin Healthcare, said ketamine can be a lifesaving tool when paramedics encounter people showing signs of “excited delirium,” a condition when severe agitation can lead to death.

When you're fighting a losing battle against negative press, the worst thing you can do is name a condition that originated with the pseudoscience of 19th century insane asylums and was revived by the manufacturer of Tasers to help law enforcement agencies bullshit their way through court cases involving citizens tased to death by cops.

In the past, Taser has hosted seminars and sent out pamphlets on excited delirium to police and medical examiners’ groups across the country; sued medical examiners who listed their stun guns as a cause of death; and even gave law enforcement agencies a ready-made statement for when someone dies after police shock them with a stun gun: “We regret the unfortunate loss of life. There are many cases where excited delirium caused by various mental disorders or medical conditions, that may or may not include drug use, can lead to a fatal conclusion.”

Heegaard's hospital and staff engage in highly-questionable behavior and he's trying to pin it on a condition most of the medical community doesn't recognize as an actual syndrome. This whole debacle shows just how far cops have strayed from the "serve and protect" ideal. This is all about making things as easy as possible for officers accompanying detainees to medical care facilities. They want them knocked out, even if it raises the risk of killing them.

It also shows how easy it is for abusive behavior to spread when it's originating from law enforcement officers. Paramedics know better. They know they're the first line of defense against further injury or trauma. And they're willing to throw that all away just because a cop tells them to dope up compliant detainees.

On top of everything, there's the skewed incentives of Hennepin Healthcare, which has found a way to gather subjects for studies by sedating them so heavily they can't possibly object to anything. There should be a whole lot of people in both fields filing for unemployment. But that isn't how thing work when cops are involved. New policies will be put in place and everyone who fucked citizens with unneeded ketamine injections will just go back to work with a mental note in place reminding them to be a bit more careful when abusing the public's trust.

Filed Under: ems, ketamine, minneapolis, minnesota, police, studies, wtf

Minnesota's Vague Ban On 'Political' Wear At Polling Places Shut Down By The Supreme Court

from the open-interpretations-and-random-enforcement-are-not-constitutional-bedfellows dept

Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote.

The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban.

MR. ROGAN: Well, Your Honor, the political has a -- has a plain meaning in our statute based on that it -- it's influencing elections. What I -- all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place.

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights.

JUSTICE ALITO: How about a shirt that says "Parkland Strong"?

MR. ROGAN: No, that would -- that would be -- that would be allowed. I think -­ I think, Your Honor -­

JUSTICE ALITO: Even though gun control would very likely be an issue?

MR. ROGAN: To the extent -­

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the -- the -­ the line that we're drawing is one that is -­ is related to electoral choices in a -­

JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed? [...]

MR. ROGAN: I -- I think -- I think today that I -- that would be -- if -- if that was in Minnesota, and it was "Parkland Strong," I -- I would say that that would be allowed in, that there's not -­

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication -- and I think what you're getting at, Your Honor -­

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

MR. ROGAN: Your Honor, I -- I -- I think that that could be viewed as political, that that -- that would be -- that would be -­

JUSTICE ALITO: How about the First Amendment? (Laughter.)

MR. ROGAN: No, Your Honor, I don't -­ I don't think the First Amendment. And, Your Honor, I -­

CHIEF JUSTICE ROBERTS: No -- no what, that it would be covered or wouldn't be allowed?

MR. ROGAN: It would be allowed.

The point Alito makes is simple: a ban on policitized apparel, especially one written this broadly, is subject to the interpretation of the person making the judgment call, each of which will have their own definition of "political." The state can only argue that some things might always be permissible, but for everything else, it's likely cover up or get cut out of the democratic process.

This exchange is paraphrased in the Supreme Court's decision [PDF], which finds the law too vague and internally inconsistent to be considered constitutional.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.

The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable.

On top of the that, the law could be read to encompass apparel not even considered remotely "political" until it's being worn by a person trying to vote in Minnesota.

Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? [...]

Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform?

The state claimed it made clear delineations, all of which somehow were subject to the "reasonable" interpretation of magically-unbiased election judges. As the court points out, the law is capable of defeating the rationale of its own defenders, thanks to its lousy construction.

The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve.

It's not impossible to keep a polling place free of overt political messages, but the state legislature's attempt is particularly terrible, expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt. The law -- standing since the late 19th century -- is now effectively dead, determined to be too unconstitutional to serve the public as it attends to its democratic duties.

Filed Under: first amendment, free speech, minnesota, political clothing, supreme court