Rideout v. Gardner
2016 U.S. App. LEXIS 17622
| 1st Cir. | 2016Background
- In 2014 New Hampshire amended RSA 659:35 to prohibit photographing a marked ballot and sharing the image (a "ballot selfie") with penalties up to $1,000.
- Three voters (Rideout, Langlois, Ross) posted ballot selfies after the 2014 primary and were investigated; they sued under 42 U.S.C. § 1983 challenging the statute as unconstitutional.
- The district court held the statute was content-based and facially violated the First Amendment, applying strict scrutiny and invalidating the law as not narrowly tailored.
- On appeal the State defended the law as a prophylactic measure to prevent vote buying and voter intimidation enabled by modern digital photography and social media.
- The First Circuit affirmed on narrower grounds: even under intermediate scrutiny (treating the law as content-neutral), the statute fails narrow tailoring because it burdens a broad swath of core political speech and is not closely tailored to preventing the asserted harms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NH's ban on photographing and sharing marked ballots violates the First Amendment | The statute unconstitutionally burdens core political speech (ballot selfies) and is overbroad/ not narrowly tailored | The ban is necessary to prevent vote buying and voter coercion facilitated by digital photos and social media | Affirmed for plaintiffs: statute fails intermediate scrutiny for lack of narrow tailoring; invalidated on that ground |
| Whether the law is content-based (requiring strict scrutiny) | The law is content-based because it regulates speech based on subject matter and message | State disputed content-based label; argued prophylactic content-neutral public-safety purpose | Court did not decide content-based question; ruled statute unconstitutional even under intermediate scrutiny |
| Whether prophylactic legislation updating ballot-secrecy rules is permissible without evidence of present problem | Plaintiffs: prophylactic ban is overbroad and sacrifices speech for speculative future harms | State: modern tech justifies prophylactic updating to preserve ballot secrecy and prevent future corruption | Held: speculative future risk and foreign/dictatorial examples insufficient; prophylactic ban not narrowly tailored |
| Whether less-restrictive alternatives exist | Plaintiffs: targeted laws criminalizing use of ballot images to facilitate vote buying/coercion, or new statutes against vote-selling, would serve interests | State: argued broad ban is needed to deter potential schemes enabled by photos | Held: Less-restrictive, targeted alternatives available; broad ban is not the least speech-restrictive fit and thus fails tailoring |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (addressing when a regulation is content-based)
- Ward v. Rock Against Racism, 491 U.S. 781 (intermediate-scrutiny test for content-neutral speech regulations)
- McCullen v. Coakley, 134 S. Ct. 2518 (narrow-tailoring requirement under intermediate scrutiny)
- Burson v. Freeman, 504 U.S. 191 (compelling interest in protecting the polling place from interference)
- McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (core protection for political speech and anonymity)
- Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (strict-scrutiny narrowest-means discussion)
- Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (government must show actual problem, not speculation)