Freeman v. Burson

Mary FREEMAN, Rebecca

Plaintiff-Appellant, BURSON, Charles W. Herbison, Nashville, plaintiff- E. John for Defendant-Appellee. appellant. Burson, Tennessee, Atty. Charles W. Gen. and Re- Court of porter, defendant-appellee pro se Mi- Nashville. Catalano, Atty. Gen., Deputy chael W. Oct. 1990. Nashville, defendant-appellee.

OPINION DROWOTA, Chief Justice. prohibits

Tenn.Code Ann. 2-7-111 solicitation of votes and the of cam- paign materials within a 100-foot radius of polling places day. on election Tenn.Code penalties Ann. 2-19-119 fixes criminal for violations of 2-7-111. Section Plaintiff brought County Chancery suit Davidson Court, seeking injunction permanent against enforcement of these statutes and declaratory judgment that statutes under both the unconstitutional United States Tennessee Constitutions. held Chancellor the statutes constitutional and dismissed Plaintiff’s suit. For the fol- reasons, lowing now reverse the Chan- we judgment. cellor’s Plaintiff, Freeman, Mary is a Rebecca County resident Davidson who has party served on a local executive committee many times. She testified that she has office, managed has been candidate for campaigns, actively in local and has worked state-wide elections. personal

Plaintiff testified that solicita- place campaigning and other tion especially important methods are in dis- trict-specific mass races because media is expensive prohibitively and is ineffective minor target small issues. locales stated 100-foot Plaintiff ban display or personal solicitation and distribu- materials has limited her ability to communicate with voters. Her proof showed in some instances the onto the extends side- adjacent walks streets permits it other instances some campaign activity grounds argues of the Plaintiff that the statutes at issue polling place if grounds the sufficiently facially are violate the First and Fourteenth large. Plaintiff also testified that she Amendments to the United States had Constitu- I, I, seen some tion and commercial Article Article and solicitation occur at § § XI, polling places. Article 8 of the Tennessee Constitu- principal challenged tion. The statute in State, On behalf of the Constance Ann instance, 2-7-111, Tenn.Code Ann. § Alexander, the County Registrar Davidson part: states in relevant and former secretary executive for the (a) The officer of elections shall have the commission, testified about the ballots, sample instructions, and conduct of elections. She stated that she other materials posted which are to be had personally observed campaign workers placed in conspicuous positions inside the thrusting handbills into the windows of vot- polling place for the use of voters. The ers’ cars on premises. the She had officer shall measure off one hundred never observed religious commercial or so- (100') feet from the entrances to the licitation within the boundary. 100-foot building in which the election is to be She additionally testified that she was place boundary signs held and at that aware the boundary 100-foot sometimes Provided, however, distance. any extended into the street. county having population of: view, In Ms. Alexander’s elimination of boundary the would in disruption result 13,600 16,350 13,610 16,450 confusion, and especially larger and more heated elections. She testified that 24,590 24.600 28,560 without the boundary 100-foot there would 28.500 41,800 41,900 greater possibility be for error in tabulat- 50,175 54,375 50,275 54,475 ing keeping votes and in track of the vot- Additionally, ers. voting locations would 56,000 56,100 overcrowded, people be would cam- 67.500 67.600 paign inside places. Ms. Alexan- 77,700 77,800 specific testimony confusion, der’s 85,725 about 85,825 error, however, disruption, related to according all to the 1980 federal census the present numbers of census, any subsequent or federal ing place itself. officer shall measure off three hundred (300') feet from the entrances to the opinion a memorandum April filed building in which the election is to be the Chancellor challenged statutes, place boundary signs held and at that finding that Section 2-7-111 was distance. content-neutral, time, place, reasonable restriction; (b) appropriate boundary Within the served a (a), state inter- established in subsection and the protecting interference, est in building voters from polling place in which the harassment, located, during and intimidation campaign posters, of voting process; materials, and that there signs campaign was al- or other ternative channel for Plaintiff to exercise against any solicitation of votes for or speech rights her free person political party position outside the 100-foot on a boundary. the constitutionality question prohibited. Because of campaign No issues, posters, statutes are the sole determinative signs or other litera- appeal Plaintiff's may displayed any Chancellor’s ture on or in be build- judgment directly pursuant ing grounds any building to this Court or on the to Tenn.Code Ann. polling place 16-4-108. which a is located.1 (c) remaining 1. The text of the statute is as follows: The officer of elections shall have each badge Posting sample official wear a with his name and official 2-7-111. ballots and in- Arrangement polling place title. structions — strictions .... —Re- an ordinance regulates political The above Renton dealt with City statute picture any “adult motion prohibited speech, highly protected which is the most 1,000 locating feet of theatre” from “Indeed, form of Amend- First zone, multiple-fam single or residential appli- urgent ment ‘has its fullest and most church, park, ily dwelling, or school. The speech during cation’ to uttered a cam- Supreme Court the ordinance U.S. paign political office.” v. San EU ordinance as content-neutral because “[t]he City Francisco Democratic Central Com- the at the of films is aimed not content 1020, mittee, 214, 1013, 489 109 S.Ct. U.S. theatres,’ picture motion shown at ‘adult (1989). 103 L.Ed.2d See Bemis 271 also of secondary at the such but rather State, effects Pentecostal v. 731 S.W.2d Church community.” surrounding theatres 897, (1987). argues, though, 903 The State 47, at at 929. The State insists Id 106 S.Ct. constitutionally a that Section 2-7-111 is in question that statute is likewise the time, place, manner of valid and restriction politi of “secondary the effects” aimed at political polling places crowds, the activity cal at — time, may enforce reasonable State voters, confusion, etc.— intimidation of regulations expres place, and manner of than at the itself. rather long as the sive conduct as restrictions argument. The reject We neutral, narrowly “are content tailored opinion limited its City in Renton Court of interest, significant government a to serve explicit purvey sexually that businesses open ample channels and leave alternative type distinguished that of materials and v. of communication.” United States society’s expression one for inter as which 177, 1702, Grace, 171, 103 461 U.S. S.Ct. magnitude est a different and lesser is of 1707, (1983)(quoting Perry 75 L.Ed.2d 736 protecting the society’s than in Perry v. Local Edu Education Assn. in expression at issue the political kind of Assn., 37, 45, 460 U.S. 103 S.Ct. cators’ Renton, City 475 U.S. instant case. See of (1983)). 948, 955, 74 794 In order L.Ed.2d 929, 2, n. 2. 49, 106 S.Ct. at at n. qualify a reason for Section 2-7-111 to zoning pornog contrast to the restrictive restriction, time, place, able and outlets, challenged in raphy the statutes that statute the must first show the State political expression, limit this case that The State insists is content-neutral. process and “is core of our electoral at the it is content-neutral because the statute freedoms[,]” First Amendment the against speakers not discriminate does 23, 32, Rhodes, 89 v. 393 U.S. Williams important govern ideas furthers 11, (1968), 5, 21 L.Ed.2d 24 “an area S.Ct. integrity orderli interest —the mental importance of First Amend which the ” voting process ness of Meyer ‘at protection —unrelated its zenith.’ ment communication. See the restriction of 414, 425, 1886, Grant, 486 U.S. 108 S.Ct. v. 612, 1, Valeo, 424 U.S. 96 S.Ct. Buckley v. (1988). 1894, 100 note that L.Ed.2d 425 We (1976). While the State 46 L.Ed.2d 659 for avoided the Renton on its criminal that the statute face admits political a it next considered mula when political activi only political speech izes Barry, 485 speech case. Boos v. U.S. See (1988). out that the statute ty, points 312, 1157, the State 99 L.Ed.2d 333 108 S.Ct. politi discriminate on basis of does not two courts have We note also that least viewpoints. involving The State contends apply cal Renton in cases refused to Play political activity v. near See City rationale of Renton 1469, 1450, n. 41, 15 Theatres, Inc., Barry, S.Ct. 798 F.2d 475 U.S. 106 Finzer v. time cert, (1986) (D.C.Cir.1986), granted sub nom. controlling. 925, 89 L.Ed.2d 29 census, (260,000) (d) having exception thousand the 1970 of counties With the county act, government, any metropolitan county may, by private the one extend hun- form population having (100') over six hundred thousand provided in sec- dred foot (600,000) according 1970 census 1972, 1; T.C.A., 2-711; federal 740, ch. tion. [Acts census, any subsequent federal and counties 362, 1, 1987, 1, 543, 2; 1980, §§ ch. §§ ch. Acts having population hundred of between two 2, 4.] (250,000) sixty fifty and two hundred thousand

213 Boos v. Barry, 479 U.S. 1083, 107 polls “preserving integ- S.Ct. rum at the 1282, (1987); 94 L.Ed.2d 141 Florida Com Brown rity processes.” of their electoral Liability McMillan, mittee For v. 45, 52,102 Hartlage, 456 U.S. S.Ct. Reform F.Supp. (M.D.Fla.1988). (1982); Mills v. Ala- 71 L.Ed.2d 732 bama, 214, 218, 384 U.S. 86 S.Ct. the Renton Even if analysis ap can be (1966). 16 L.Ed.2d 484 The State plied political expression, it is not avail unquestionably has shown a able to question defend the statutes in banning solicitation of voters or this case. scrutiny ap The lower level of materials distribution of plied regulation to content-neutral is avail place able itself. governmental the asserted in terest is suppression unrelated to the 2-7-111, however, Tenn.Code Ann. O'Brien, United States v. 391 narrowly not tailored to advance the 367, 377, 1673, 1679, U.S. 88 S.Ct. 20 pro- State’s interest. The statute at issue (1968). However, L.Ed.2d 672 the State campaign activity hibits all from an arc of put proof on no display or distribu every 100 feet polling from entrance to the campaign materials or the solicita places. many In instances this are extends polling tion of votes near places has a public onto streets and sidewalks. The different effect from that of the communi State has not shown a messages polling cation of other at in the specific 100-foot radius. The testi- fact, witness, In Alexander, Ms. mony of the State’s witness about confu- admitted on cross-examination that if there sion, error, overcrowding, etc. concerned persons soliciting were orga for charitable persons present poll- the numbers of nizations inside the boundary itself, ing place not the numbers of pose problems would the same kind of polls. outside the persons soliciting votes inside that bound Several other courts have dealt with sim- We, therefore, ary. find that Section 2-7- attempts ilar to insulate the environs of the 111 regulates is content-based because it a polling place political speech. With specific matter, subject the solicitation of exception regulations one these have been votes and the or distribution of Amendment, held to violate the First either campaign materials, category and a certain they reaching because were overbroad speakers, campaign workers. private property they onto or because Regulations which restrain sufficiently govern- advanced the asserted presumptively basis of its content violate Daily mental interest. See Herald Co. v. the First Amendment. National Broad- Munro, (9th Cir.1988) (ban 838 F.2d 380 on Co., Cleland, casting Inc. v. F.Supp. 697 polling polling exit within 300 feet of Renton, (N.D.Ga.1988); City of 1211 Sandy Springs, place); Committee for 46-47, 475 U.S. at 106 at S.Ct. 728-29. Cleland, Georgia, Inc. v. F.Supp. 708 1289 regulation may Such a be (N.D.Ga.1988) (ban soliciting signatures on prove State can placed that “the burden petition polling within 250 feet of speech rights justified by compel- free a Liability Florida Committee for place); ling state interest. The least intrusive McMillan, v. F.Supp. 682 1536 Reform by means must be utilized State (M.D.Fla.1988) (ban on solicitation for goals achieve its and the means chosen purpose polling place); 150 feet of must bear substantial relation to the in- Smith, (S.D. CBS Inc. v. F.Supp. 681 794 being by ques- served the statute in Fla.1988) (ban polling on exit within 150 Bemis, tion.” 731 S.W.2d at 903. Cleland, feet); NBC v. F.Supp. 697 1204 (N.D.Ga.1988) (250 rationale State’s for the 100-foot foot for solici- literature, tation, polling places “buffer zone” around is the distribution Broadcasting National prevention voting, polling); of interference with con- and exit Co., fusion, mistakes, Colburg, Inc. v. overcrowding F.Supp. 699 241 (D.Mont.1988); Firestone v. News Press ing places. certainly an inter- States have Co., Inc., (Fla. Publishing maintaining peace, est order and deco- 538 So.2d 457 214

1989) (exclusion and exits of the of non-voters from area tion near the entrances room). within 50 feet of polling place, thereby protecting the congestion disruption, lines from or undue Liability Re Florida Committee for yet permits in other but which solicitation McMillan, (M.D. F.Supp. v. 682 1536 form might per- proximate places, somewhat less Fla.1988), granted pre the district court pass muster. We note haps constitutional liminary injunction against enforcement of held that a 25-foot that one court has prohibiting a statute solicitation within 150 prevent congestion boundary is valid polling places, holding feet of that the stat entrances to the disruption at the respect subject ute was overbroad with Cleland, place. F.Supp. geographic application. matter and Id. Ad See NBC dressing government (N.D.Ga.1988). interest of the stated harassment, preventing voter statute, However, such a limited careful- concluded: protect rights of the ly drafted to mere- quality ... if the of this interest is furthering com- speakers while State’s ly the offense suffered a voter who interests, pelling is not before this Court ap- approaches polls only to be judg- today. Accordingly, we reverse the proached by petitioner, expo- this brief and hold that Tenn. ment of the Chancellor grassroots process, democratic sure to 2-7-111 2-19-119 are Ann. Code §§ individuals, unpalatable to some however ap- constitutionally invalid. The costs of speech justify cannot a restriction Appellee. peal are taxed to activity when the offensive can be avoid- communicating a declina- readily by ed COOPER, O’BRIEN petitioner. interest to the tion of JJ., DAUGHTREY, concur. at 1542. Id. FONES, J.,

Likewise, pre- separate dissents with in the case at venting voter interference opinion. shielding from consists voters

bar Justice, FONES, dissenting. with annoying campaign workers armed fingernail majority says files The cheap point pens respectfully I dissent. ball name, candidate’s this unquestionably embossed with a has a com- that the state infringement upon justify cannot an integrity preserving pelling interest Furthermore, rights. Tenn. speech free support process that would of the electoral and 2-19-1153 ad- Ann. 2-19-1012 Code §§ distribu- banning of votes and solicitation and in- equately prohibit voter interference campaign materials within timidation. say that a They seem to ing place itself. from the entrance would ban of 25 feet Moreover, least is not the the statute How- pass muster. probably constitutional inter- means to serve the State’s restrictive ever, unpalatable, places solicita- a 100 foot ban precludes ests. A indirectly, by directly himself or nominating person, or Interfering meet- with 2. 2-19-101. person any person: ing through commits a misde- or election.—A other if he: meanor (1) prevent By or endeavor or threats to force any (1) attempts up up to break or Breaks voting any pri- prevent any elector from to nominating party legally political authorized election; mary or final violence; meeting any force or or violence, (2) any force or use of To make (2) attempts or to assault Assaults restraint, the infliction inflict or threaten or to officials; conducting meeting or the election loss; damage, or any injury, harm or attempts (3) away to Destroys or or carries (3) practice any intimidation to carry away destroy a ballot box or or against any person to induce upon in order or machine; or voting, from compel to vote or refrain him way (4) any other or violence in Uses force any particular voting for refrain from vote or of the nomi- prevent and lawful conduct the fair measure, per- account of such person or on 740, meeting nating ch. [Acts or election. voting in having or refrained voted son T.C.A., 1; § 2-1901.] 1; any ch. election. [Acts such pre- intimidation to Violence and 3. 2-19-115. T.C.A., § 2-1915.] any voting.— is a misdemeanor It vent unjustified, unconstitutional restriction on speech, according

free majority. When a constitutional attack is made act, upon legislative required the Court is indulge every presumption in favor of its of, validity and resolve doubt favor against, rather constitutionality than Dark, the act. Dorrier v. 537 S.W.2d 888 (Tenn.1976); Memphis Publishing Co. (Tenn. City Memphis, 513 S.W.2d 511

1974) Wilson, Tenn. Black v. (1945). majority 188 S.W.2d 609 The has totally ignored presumption that binds firmly any principle

this Court as of law in the books. majority says that somewhere

space of 75 feet ban on vote solicitation approx- becomes unconstitutional. It takes imately 15 seconds to walk 75 feet. If the dependent upon

electorate of Tennessee the free available in the last 15 they polling place, seconds before enter the ballot, help to cast an informed us. God indulge presumption I would of valid- ity legislative act is entitled to receive uphold

in this the constitutionali- ty of the 100 foot ban. PERKINS, Plaintiff-Appellant,

Eddie INC., K, BE & and United States Fidelity Guaranty Company, &

Inc., Defendants-Appellees. Tennessee, Court of

at Knoxville. Dec. 1990. Rehearing Denied Feb. 1991.

Case Details

Case Name: Freeman v. Burson

Court Name: Tennessee Supreme Court

Date Published: Oct 1, 1990

Citation: 802 S.W.2d 210

Court Abbreviation: Tenn.