Week in Review: Stopping the Election Day Speech Police

January 13, 2018

Thinking of wearing your favorite “Don’t Tread on Me” t-shirt to the polls on Election Day? How about donning a baseball hat with your candidate’s campaign slogan? If you’re in Minnesota, you would be in violation of a state law that restricts what you can wear when you’re exercising your right to vote.

The U.S. Supreme Court will soon hear arguments in a free speech case involving that law, and this week the Goldwater Institute filed a brief with the Court urging it to strike down the Minnesota law because it violates the First Amendment. While the government should prevent disorder in polling places, it shouldn’t be in the business of telling people they can’t express themselves in respectful ways.

“This case is the latest example of a disturbing trend of trying to block free expression in our democratic system,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. “The Minnesota law doesn’t just prevent disruption in the polling place—which is perfectly fine—it goes further, and forbids efforts to ‘persuade’ people. The government has no business trying to prevent ‘persuasion,’ as long as it’s peaceful.”

The Goldwater Institute fought and won two similar lawsuits in 2010 in Flagstaff and Phoenix, when polling place workers tried to forbid Tea Party members from wearing their Gadsden flag T-shirts to the polls, even though the shirts did not endorse candidates or issues. In both of those cases—Reed v. Purcell and Wickberg v. Owens—judges ruled that the government had violated voters’ free speech rights.

The Minnesota law is even broader than the Arizona restrictions at issue in those cases. As one federal judge noted, the Minnesota law would even forbid a person from wearing a shirt with the logo of the ACLU or the AFL-CIO.

“From campaign finance regulations to laws that force the disclosure of nonprofit donors’ home addresses and their employers’ names, freedom to express one’s opinion is increasingly under attack. But a functioning democratic system means respecting people’s rights to express themselves in a peaceful manner,” Sandefur says. “We’re asking the Supreme Court to declare that the government has no legitimate role in preventing ‘persuasion’ of any sort.”

Liberty in the News

• Remember the infamous “bridge to nowhere”? It was among the worst examples of congressional “earmarks,” and now some in Washington want to bring them back. The Goldwater Institute has joined a coalition to say “NO!” to earmarks and to encourage Congress to adopt reforms that ensure fiscal sanity and accountability. Read our letter here to Congress here.
• According to a new ruling by the Eighth Circuit Court of Appeals, it’s okay for judges to make stuff up—at least in cases involving the right of an individual to earn a living doing something as simple as braiding people’s hair. Timothy Sandefur explains how the ruling will affect entrepreneurs and their right to earn a living.
• The U.S. Food and Drug Administration has issued a gag rule on truthful speech about lawful off-label treatments. Goldwater Institute Executive Vice President Christina Sandefur says that the rule is undermining free speech and leaving doctors without the information they need to treat patients. Listen to her interview here.