States: Don’t tread on a voter’s T-shirt when at a polling place
Judging by what Andrew Cilek wore when he went out to vote in Minneapolis in 2010, his preferences run less to buttondown Oxford cloth than to chatty T-shirts. The question the U.S. Supreme Court considered 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 things 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 “speech-free 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 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 that might “trigger” in people who see them … what?
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” 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 condescension of the government assuming that “confusion” will discombobulate voters who glimpse, say, an “American Legion” or “NAACP” sweatshirt?
It is one thing to ban active “solicitation of votes” in or close to a polling place. It is, however, a bit much to forbid passive expression of political 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 voters at polling places sniffing for the reek of unchecked white privilege.
And what about a Tshirt with a pristinely unpolitical message (e.g., “I despise cocker spaniels”) that might disturb some sensitive souls in a polling place? Or the court can give its squint of strict scrutiny to all such polling-place laws. Otherwise, polling-place officials will have broad discretion to lay down the law on an ad hoc basis concerning what is a “recognizable” political view or “undue” influence.
The First Amendment was ratified in 1791 and 128 years passed before the court confronted a case 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.” And the guarantee of free speech does not protect printing leaflets urging disruption of the war effort.
Nowadays, the court frequently adjudicates speech controversies because governments embrace 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.