Rideout v. Gardner
2016 U.S. App. LEXIS 17622, 2016 WL 5403593, 838 F.3d 65 (2016)
Sections
Rule of Law:
A state statute prohibiting voters from photographing and publishing images of their marked ballots violates the First Amendment when the state fails to demonstrate that the restriction is narrowly tailored to address an actual, non-hypothetical problem of vote buying or coercion.
Facts:
- In 2014, New Hampshire amended a statute to prohibit voters from taking digital images of their marked ballots and sharing them via social media, aiming to prevent vote buying and coercion.
- The legislative history of the amendment contained no evidence of actual vote buying or voter coercion occurring in New Hampshire since the late 19th century.
- Plaintiff Rideout, a state representative, photographed his ballot showing a vote for himself and posted it on Twitter and Facebook to make a political statement.
- Plaintiff Langlois, dissatisfied with the candidates, wrote in the name of his deceased dog, 'Akira,' photographed the ballot, and posted it on Facebook.
- Plaintiff Ross, a candidate for office, photographed his ballot and later posted it on Facebook with the caption 'Come at me, bro' specifically to challenge the law.
- Following their posts, all three plaintiffs were investigated by the New Hampshire Attorney General's Office for violating the statute.
Procedural Posture:
- Rideout, Langlois, and Ross filed suit against Secretary of State Gardner in the United States District Court for the District of New Hampshire.
- The District Court granted summary judgment in favor of the plaintiffs, declaring the statute facially unconstitutional under strict scrutiny.
- Secretary Gardner appealed the decision to the United States Court of Appeals for the First Circuit.
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Issue:
Does a state statute prohibiting voters from photographing their marked ballots and sharing those images on social media violate the First Amendment right to freedom of speech?
Opinions:
Majority - Judge Lynch
Yes, the statute is unconstitutional because it fails to satisfy intermediate scrutiny under the First Amendment. While the court declined to rule on whether the law was content-based (which would trigger strict scrutiny), it determined the law failed even the more lenient 'intermediate scrutiny' standard. Under this standard, the state must prove the law is narrowly tailored to serve a significant governmental interest. Although preventing vote buying is a significant interest in the abstract, New Hampshire failed to provide any evidence that vote buying was an actual problem that needed solving. The court found the law to be overinclusive, punishing innocent political speech ('ballot selfies') to prevent a hypothetical crime. The state had less restrictive alternatives available, such as directly criminalizing vote buying, rather than banning the communicative act of sharing a photograph of a ballot.
Analysis:
This decision is significant because it protects 'ballot selfies' as a form of core political speech, recognizing that digital images are a primary way voters communicate political views in the modern era. The court's refusal to apply strict scrutiny, while still striking down the law under intermediate scrutiny, reinforces the high burden states face when restricting speech: they cannot rely on 'abstract' or historical fears but must show a current, actual problem. This case creates a precedent that prophylactic bans on technology-enhanced expression require empirical justification, preventing legislatures from suppressing broad categories of speech to address speculative harms.
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