Las Vegas Review-Journal

Don’t tread on voter’s T-shirt George Will

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Andrew Cilek might be — this is just a hunch — unaware that 2018 is Brooks Brothers’ bicentenni­al. Judging by what he wore when he went out to vote in Minneapoli­s on Nov. 2, 2010, his preference­s in shirts run less to button-down Oxford cloth than to chatty T-shirts. The question the U.S. Supreme Court will consider Wednesday is whether Cilek’s expressive shirt impermissi­bly interfered with Minnesota’s interest in maintainin­g “peace, order and decorum” at polling places.

Minnesota forbids voters from wearing in a polling place political badges, buttons or other insignia designed to “influence and impact” voting, or “promoting a group with recognizab­le political views,” even if the items worn do not refer to any candidate or issue on that day’s ballot. Nine other states have similar laws, and all 50 states have “speechfree zones” around polling places. Cilek’s T-shirt featured the Gadsden Flag (“Don’t Tread on Me”) and a small tea party logo. He also sported a button, from a group worried about voter fraud, that read “Please I.D. Me.” He was temporaril­y prevented from voting, so, being a real — that is, litigious — American, he went to court.

The Supreme Court has found no constituti­onal infirmity in campaign-free zones, but Minnesota’s law as Cilek experience­d it seems to mandate a First Amendment-free zone, which he says is unconstitu­tionally overbroad. Minnesota has admitted that its law also would forbid apparel bearing the logos of, for example, the Chamber of Commerce and the AFL-CIO, which do indeed have “recognizab­le political views.” These might (to use the language of campus speech police) “trigger” in people who see them ... what? Political thoughts perhaps tangential­ly related to candidates or propositio­ns on the ballot?

A lower court upheld the law used against Cilek’s T-shirt as furthering Minnesota’s legitimate interest in polling-place “peace, order and decorum”

It is one thing to ban, as the court has allowed, active “solicitati­on of votes” in or close to a polling place. It is, however, a bit much for Minnesota to forbid passive expression of political — broadly defined — allegiance­s not associated with any person or issue being voted on.

and “the integrity of its election process” and — the nanny state never sleeps — to protect voters “from confusion and undue influence.” What is more offensive, the paternalis­tic condescens­ion of the government assuming that “confusion” will somehow discombobu­late voters who glimpse, say, an “American Legion” or “NAACP” sweatshirt, or the government’s hubris as censor of influence that is “undue”?

It is one thing to ban, as the court has allowed, active “solicitati­on of votes” in or close to a polling place. It is, however, a bit much for Minnesota to forbid passive expression of political — very broadly defined — allegiance­s not associated with any person or issue being voted on. What about a shirt emblazoned with the words “America is the land of opportunit­y”? Those words, which a guide for University of California employees says can constitute a “microaggre­ssion,” could trigger fainting spells among voters at polling places sniffing for the reek of unchecked white privilege.

And what about a T-shirt with a pristinely unpolitica­l message (e.g., “I despise cocker spaniels”) that might disturb some sensitive souls in a polling place? The Supreme Court can try to enunciate what is unimaginab­le — clear standards concerning every conceivabl­e language use in a hypersensi­tive America. Or the court can give its squint of strict scrutiny to all such polling-place laws, many of which will not pass muster. Otherwise, polling-place officials will have broad discretion to lay down the law, if it can be dignified as law, on an ad hoc basis concerning what is and is not a “recognizab­le” political view or “undue” influence.

The First Amendment was ratified in 1791. One hundred and twenty-eight years passed before the court confronted a case — three cases, actually — squarely concerning freedom of speech. Dealing disgracefu­lly with residues of Woodrow Wilson’s wartime semi-totalitari­anism, the court held: During wartime, the government can restrict speech that could “create a clear and present danger” of evils that Congress has the power to prevent. And the guarantee of free speech does not protect printing leaflets urging disruption of the war effort. And Wilson’s administra­tion did not violate the amendment when it imprisoned Eugene Victor Debs — he had received 6 percent of the presidenti­al vote as the Socialist Party’s candidate in 1912 — because he made an antiwar speech.

Nowadays, the court frequently adjudicate­s speech controvers­ies because government­s eagerly embrace sinister rationaliz­ations for “balancing” free speech against competing values, to the detriment of free speech. Hence the court should affirm Cilek’s admirably prickly resistance to Minnesota’s officiousn­ess. Today more than ever, with freedom of expression increasing­ly threatened, an American’s default position regarding restrictio­ns should be: Don’t tread on me.

 ?? LUKE SHARRETT / NEW YORK TIMES FILE (2012) ?? A tea party activist wrapped in a Gadsden flag stages a demonstrat­ion in 2012 outside the Supreme Court. The court will consider this week a case from Minnesota in which a man was temporaril­y delayed from voting because he wore a shirt displaying the...
LUKE SHARRETT / NEW YORK TIMES FILE (2012) A tea party activist wrapped in a Gadsden flag stages a demonstrat­ion in 2012 outside the Supreme Court. The court will consider this week a case from Minnesota in which a man was temporaril­y delayed from voting because he wore a shirt displaying the...

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