Dear Eric Trump: Do Not Be Shamed Into Deleting Your Free Speech By A Dumb New York State Law

from the selfie-ish dept

We don't do partisan politics here at Techdirt, but we sure as hell do talk about free speech rights. And, as we've said many times, there is probably no type of speech more deserving of protection than political speech. It's what makes all the state laws against so-called "ballot selfies" so frustrating: they go to such great lengths battling the hypothetical evils arising from people taking and sharing photos of their completed ballots that they wind up stifling very real speech. And even as some state courts manage to understand that these laws are a clear violation of the First Amendment, states like New York have courts that don't.

Which brings us to Eric Trump, son of The Donald, who tweeted out the following this morning.

Should you be unable to see it, Eric Trump tweeted out an image of his completed ballot, in which he voted for his father, because duh. Almost immediately several news organizations, such as the New York Daily News and The Verge, pounced on the tweet with headlines proclaiming that Eric Trump "broke the law" with the tweet. And that is really, really stupid from news organizations that should really, really know better. Institutions that rely on the First Amendment for their very existence ought not to be cheering on laws that violate it. And, really, for those of us that hate these ballot selfie bans, there is no better scenario than having a high-profile member of the public violate them, so that we can get the laws changed.

But, of course, Eric Trump deleted the tweet almost immediately. He shouldn't have. He should have insisted on standing by his free speech rights, rights that have been fought for by many so that political speech can remain free. Whatever you might think of this election, whatever you might think of the Trump family, advocates for free and open speech are required to stand by those rights. There is no joy in seeing the press shame Eric Trump into deleting his ballot selfie tweet. He should instead put it back up, stand by it, and have pride in his right to post it. And if that means defending that right against a constitution-violating state law, then so be it. It'd certainly be the patriotic thing to do.

Filed Under: ballot selfies, donald trump, eric trump, first amendment, free speech, ny

Judge Refuses To Block NY No-Selfie Ballot Law Because It Would 'Create Havoc To Not Enforce It'

from the wut? dept

Our long national nightmare that has been this election cycle is nearly over. Election day is approaching and early voting has begun, which means you've probably already seen your social media connections happily and proudly posting about their votes. This is a good thing for democracy, in my opinion, as celebrations of participation can only encourage others to participate as well. Yet not everyone is on board with this social media pride. We had already discussed New Hampshire's law against so-called ballot selfies, in which people post their completed voting ballots to social media. That law was struck down as unconstitutional, because of its restriction on the most important form of speech, political speech.

But, as you may know, New Hampshire isn't the only state to pass such a law -- in fact lots of states have them, including New York. As in other states, New York's is being challenged in federal court at present. Three voters sued in October to get enforcement of the law blocked. The judge in the case, however, has refused to issue such an order, claiming that to do so would sow confusion on election day.

U.S. District Judge Kevin Castel in Manhattan said it would "wreak havoc on election-day logistics" to issue a preliminary injunction against the law, which prohibits the display of "ballot selfies." "The public's interest in orderly elections outweighs the plaintiffs' interest in taking and posting ballot selfies," though they remained free to express their political message through "other powerful means," Castel wrote.

It's an odd bit of reasoning. What Castel is saying is that ordering non-enforcement of this law -- doing nothing, in other words -- would create more havoc than actually tasking law enforcement with enforcing it. How is that remotely possible? Doing nothing cannot possibly create more problems than doing something. Doing nothing is doing nothing, after all. What havoc could come from local law enforcement sitting idly by as people proudly share that they voted on social media?

When one takes into account that this is a matter of free political speech, so too does Castel's suggestion that the public benefit outweigh's those of the plaintiff's seem odd. The public is the one that would benefit from not enforcing a law that has had a similar version of it already declared unconstitutional in another state. Other states have had the courts all over the map on this question, with California also seeing a refusal to stop enforcement of its ballot selfie law, while states like Indiana and New Hampshire have had those laws struck down.

It seems this may be headed for the Supreme Court, where we'll hopefully have a full roster of justices ready to make a ruling on selfies at the ballot box.

Filed Under: ballot selfies, election, first amendment, free speech, new york

U.S. Court Of Appeals Upholds Ruling That New Hampshire's Silly Ballot Selfie Ban Violated The First Amendment

from the silence-citizens! dept

You may recall that roughly a year ago, a federal judge struck down a New Hampshire law that made "ballot selfies" illegal. The state had essentially updated its laws revolving around limiting the ability to sell votes or influence the public through depicting who a person voted for to include criminalizing anyone that took a picture of their completed ballot and shared it on social media. The state had said that allowing that sort of thing encouraged voter corruption, with the idea that ballot selfies would be used as a form of proof that a bought vote had been completed, or might otherwise be used to influence other members of the public as to how to vote. It was a strange theory, given how unlikely it would be for a corrupted voter to post evidence of his or her corruption on Facebook, not to mention that stating that a person essentially couldn't engage in a form of political speech via a picture was flatly unconstitutional. The federal judge agreed.

But, for reasons I cannot begin to fathom, New Hampshire appealed this ruling. And so it went before the U.S. Court of Appeals for the 1st Circuit... which found the law to be flatly unconstitutional as well.

The court held this statute violated the First Amendment; whether or not it’s viewed as content-based (and I think it should be), the statute is unconstitutional because it fails even the “intermediate scrutiny” applied to content-neutral speech restrictions.

From the ruling itself:

Digital photography, the internet, and social media are not unknown quantities — they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation...But even accepting the possibility that ballot selfies will make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.

The ruling goes on to detail the two reasons. First, the court points out that none of the fears the state raises as its reasons for enacting this law have been realized and that curtailing the free speech rights on an entire population over a theoretical problem ain't a thing that the state can do. Second, should those fears actually come to reality, the court points out that there are already laws on the books to address them and, again, limiting free speech rights on an entire population when that's the case isn't going to fly.

The point is that political speech is about as sacred a thing as a secular republic like ours has. That New Hampshire is going to such lengths to keep people from being able to proudly show that they voted, and who they voted for, seems strange for a state with a motto of "Live free or die."

Filed Under: ballot selfies, first amendment, free speech, new hampshire