Burson v. Freeman
504 U.S. 191 (1992)
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Rule of Law:
A state law that prohibits the solicitation of votes and the display of campaign materials within 100 feet of a polling place is a content-based restriction on political speech that survives strict scrutiny. The state's compelling interests in preventing voter intimidation and election fraud and in preserving the integrity of its election process justify the minor geographic limitation on First Amendment rights.
Facts:
- Mary Rebecca Freeman was a political campaign treasurer for a city council candidate in Tennessee.
- A Tennessee law, § 2-7-111(b), established a 100-foot "campaign-free zone" around the entrances to polling places.
- Within this zone, the law prohibited the solicitation of votes and the display or distribution of campaign materials.
- Violation of the statute was a Class C misdemeanor.
- Freeman asserted that this law limited her ability to communicate with voters on election day as they approached the polls.
Procedural Posture:
- Mary Rebecca Freeman filed a facial challenge to the Tennessee statute in the Davidson County Chancery Court, a state trial court.
- The Chancellor dismissed Freeman's suit, ruling that the statute was a constitutional time, place, and manner restriction.
- Freeman, as the appellant, appealed to the Tennessee Supreme Court, the state's highest court.
- The Tennessee Supreme Court reversed the trial court's decision, holding that the statute was a content-based restriction that failed strict scrutiny.
- The State of Tennessee, through petitioner Burson, sought and was granted a writ of certiorari from the United States Supreme Court.
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Issue:
Does a state statute that prohibits the solicitation of votes and the display or distribution of campaign materials within 100 feet of a polling place violate the First and Fourteenth Amendments?
Opinions:
Majority - Justice Blackmun
No, the Tennessee statute does not violate the First and Fourteenth Amendments. Although a content-based restriction on political speech in a public forum must survive strict scrutiny, this is the rare case where the standard is met. The state has compelling interests in protecting citizens' right to vote freely and in preserving the integrity of the election process by preventing voter intimidation and election fraud. A widespread and long-standing history of election regulation in the United States and other Western democracies demonstrates that a restricted zone around polling places is necessary to serve these interests. Given the conflict between the fundamental right to vote and First Amendment speech rights, the 100-foot boundary is a narrowly tailored and constitutional compromise.
Concurring - Justice Kennedy
No, the statute is constitutional. The compelling-interest test is useful for determining whether the government's asserted justification for a content-based law is accurate or merely a pretext for suppressing speech. In this case, the state's justification is not to suppress expression but to protect another fundamental constitutional right: the right to vote. The First Amendment permits freedom of expression to yield when necessary to accommodate another constitutional right, and this statute appropriately acts to protect the integrity of the polling place.
Concurring - Justice Scalia
No, the statute is constitutional, but the majority's reasoning is incorrect. The area surrounding a polling place on election day is not a traditional public forum. A long history of statutes restricting electioneering in these specific areas demonstrates they have not traditionally been devoted to assembly and debate. Therefore, the law should not be subject to strict scrutiny. Instead, as a reasonable, viewpoint-neutral regulation of a nonpublic forum, it is constitutional.
Dissenting - Justice Stevens
Yes, the Tennessee statute violates the First Amendment. The state has failed to meet its heavy burden under strict scrutiny to show the law is necessary and narrowly tailored. The plurality wrongly confuses history with necessity; practices that were necessary a century ago to combat widespread fraud may no longer be needed in our modern, less corrupt electoral system. Furthermore, the statute is both overbroad, banning passive displays like bumper stickers, and underinclusive, as it fails to regulate other disruptive but non-campaign-related speech, which undermines its purported law-and-order justification.
Analysis:
This case is highly significant as a rare instance where a content-based restriction on core political speech survived strict scrutiny. The decision establishes that a state's compelling interest in protecting the fundamental right to vote can outweigh First Amendment speech rights in the specific context of the area immediately surrounding a polling place. By relying heavily on historical practice rather than requiring contemporary empirical evidence, the Court granted states a degree of deference in regulating election-day activities. This precedent solidifies the constitutionality of 'campaign-free zones' and influences how courts balance the right to free speech against the state's need to administer orderly and fair elections.
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