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“The Selfie and the First Amendment” on The Huffington Post

By Roy Gutterman, November 7, 2016

This article appeared on The Huffington Post on Nov. 7, 2016. 

The so-called “ballot selfie” is testing the boundaries of modern voting regulations, the legal limits on social media and the First Amendment.

As the country limps into Election Day, a federal court in New York City on Thursday was the latest to weigh in on the question of whether a voter can take a selfie in the voting booth and then disseminate that photo on social media.  This controversy has been brewing over the past few years and spilled into the national spotlight recently when Justin Timberlake took his ballot selfie, and likely broke Tennessee’s election laws by showing his completed ballot to millions of his followers on social media.

This modern conundrum was likely not envisioned when states drafted election laws, some more than 100 years old. The First Amendment implications of laws banning the ballot selfie have been argued in federal courts in New Hampshire, Indiana and Michigan in recent months.

Three voters in New York City asked District Court Judge P. Kevin Castel to freeze the state’s election law on First Amendment grounds because it criminalizes showing others a completed ballot. The potential application of the law to voters taking selfies would violate their First Amendment rights, they argued Tuesday.

While the New York law originally  drafted more than a century ago with more modern updates in 1978 and 1991, does not expressly speak of selfies or social media, its application could attach criminal penalties to the photographic craze under the provision barring voters from showing a completed ballot to another person.  This misdemeanor could result in up to a year in prison and up to a $1,000 fine.

It is not clear how aggressively this law is enforced or whether anyone has even been prosecuted.

Election laws, the purview of the states, do have a valid purpose. They are intended to maintain the integrity of our elections, preventing voter fraud, corruption, outside or undue influence, intimidation or chicanery at polling places.  These laws legitimately prohibit certain behavior in and around polling places. Polling places are hallowed ground, safe spaces where politicking ends while voters engage in their democratic right.

While these bedrock policies help maintain the integrity of the system and ensure our elections are not “rigged,” these laws are now running head on into modern forms of self-expression.

Thus, we have a significant conflict. Even as he rejected the New York voters’ request in Silberberg v. Board of Elections,  Judge Castel acknowledged the free speech position the selfie occupies as well as the political speech implications of the controversy.

Political speech is perhaps our most valued and protected form of speech in our democracy and the ballot selfie is simply a modern extension of these cherished rights. The selfie craze is a modern form of speech, expression and self-fulfillment.

In September, in Rideout v. Gardner, the First Circuit Court of Appeals, affirmed that a state law was unconstitutional under the First Amendment because it intruded on a modern form of self-expression. The court analyzed the purpose of polling place laws, tracing the origin of New Hampshire’s initial laws back to 1891 with its intent to prevent vote buying or coercion. The court also noted these concerns were somewhat nebulous, if not outright questionable.

“New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: ‘a picture is worth a thousand words,’” the court wrote.

Judge Castel, though, was skeptical that the law would indeed cause a substantial harm to the plaintiffs ‘s First Amendment rights.  Given the timing of the action, he worried that any action on the law would “wreak havoc,” on the election system and procedures at the state’s 5,300 polling places.

Despite this latest ruling, as voters exercise their rights, it would not surprise anyone if ballot selfies still find their way into social media Tuesday.

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.