Cyberlaw Clinic Protects the Right to Post “Ballot Selfies”

Via Cyberlaw Clinic

The Cyberlaw Clinic filed an amicus brief (PDF) at the United States Court of a Appeals for the First Circuit, on behalf of the New England First Amendment Coalition and the Keene Sentinel. The case, Rideout v. Gardner, concerns a law passed by the State of New Hampshire to prevent “ballot selfies” – photos of completed ballots that are posted on social media. The brief argues that the law is unconstitutional under the First Amendment, as it prohibits a variety of speech important to monitoring the government, educating voters and engaging in political debate.

The statute at issue is N.H. Rev. Stat. Ann. § 659:35, which prohibits “taking a digital image or photograph of [one’s] marked ballot and distributing or sharing the image via social media.” As the brief notes, if the statute were allowed to stand, it would prohibit many types of speech that play important roles in elections, and democracy more generally. The law bars voters from raising questions about improprieties they find on their ballots, criticizing the government for poor ballot design, or engaging in advocacy for a candidate. The brief notes specific examples of times when photographs of ballots helped the public clear up misunderstandings about government conduct, demonstrated how to ensure that one’s vote would be counted, and conveyed messages about civic participation and advocacy for a candidate that could not expressed with words alone.

A copy of the brief is available here, and more information about it can be found at NEFAC’s website. Spring 2016 Cyberlaw Clinic students Michael Linhorst and Jacqueline Wolpoe took the lead on this brief, working closely with Managing Director Chris Bavitz and Clinical Fellow Andy Sellars.