१४ जून, २०१८

"Minnesota’s political apparel ban violates the Free Speech Clause of the First Amendment."

That's the new Supreme Court case this morning, Minnesota Voters Alliance v. Mansky.

The Chief Justice writes the opinion and there's a dissent from Sotomayor (joined only by Breyer).

From the majority opinion:
[T]he ban applies only in a specific location: the interior of a polling place. It therefore implicates our “‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.”...  This Court employs a distinct standard of review to assess speech restrictions in nonpublic forums.... A polling place in Minnesota qualifies as a nonpublic forum. It is, at least on Election Day, government-controlled property set aside for the sole purpose of voting....

We therefore evaluate MVA’s First Amendment challenge under the nonpublic forum standard. The text of the apparel ban makes no distinction based on the speaker’s political persuasion, so MVA does not claim that the ban discriminates on the basis of viewpoint on its face. The question accordingly is whether Minnesota’s ban on political apparel is “reasonable in light of the purpose served by the forum”: voting...

[W]e see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.”...

[I]]n light of the special purpose of the polling place itself, Minnesota may choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand. But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out..... Here, the unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test.

Again, the statute prohibits wearing a “political badge, political button, or other political insignia.” It does not define the term “political.” And the word can be expansive. It can encompass anything “of or relating to government, a government, or the conduct of governmental affairs,” Webster’s Third New International Dictionary 1755 (2002), or anything “[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state,” American Heritage Dictionary 1401 (3d ed. 1996). Under a literal reading of those definitions, a button or T-shirt merely imploring others to “Vote!” could qualify. The State argues that the apparel ban should not be read so broadly. According to the State, the statute does not prohibit “any conceivably ‘political’ message” or cover “all ‘political’ speech, broadly construed.” Brief for Respondents 21, 23....

We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it....

[I]f a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here.
The Sotomayor opinion says that the state supreme court should have been given the opportunity to interpret the state statute and perhaps to give it a narrow enough meaning that word, "political," to avoid the question of federal constitutional law. Sotomayor notes that the statute has been around for more than a century, and this is the first time it's been challenged, so that indicates that the state hasn't been abusing its power and should therefore enjoy the respect of its courts getting the chance to interpret its own law. This process is called "certification." Sotomayor comes out on the federalism side: certification would "save time, energy, and resources and helps build a cooperative judicial federalism."

The majority addresses the federalism angle in a footnote:
Minnesota’s request for certification comes very late in the day: This litigation had been ongoing in the federal courts for over seven years before the State made its certification request in its merits brief before this Court...  And the State has not offered sufficient reason to believe that certification would obviate the need to address the constitutional question. Our analysis today reflects the State’s proffered interpretation; nothing in that analysis would change if the State’s interpretation were also adopted by the Minnesota Supreme Court. Nor has the State (or the dissent) suggested a viable alternative construction that the Minnesota Supreme Court might adopt instead. 

४९ टिप्पण्या:

mccullough म्हणाले...

Fuck the Draft

gspencer म्हणाले...

"The disparagement clause violates the First Amendment's Free Speech Clause," Justice Samuel Alito wrote in his opinion in The Slants case (2017).

Combined with today's ruling this version of the USSC seems to be getting the meaning of 1A.

mccullough म्हणाले...

I read the opinion. Cutting through the bullshit, Minnesota basically tried to have a dress code for voters.

Inga...Allie Oop म्हणाले...

So MoveOn.org would now be allowed to be worn on Some piece of apparel?

Nonapod म्हणाले...

gov- ernment

I assume that was a multiline parsing but it's kinda funny to pronouce it like "gov earn ment".

Nonapod म्हणाले...

Not sure about you guys, but I know I base all my voting decisions on whatever the last T shirt I saw at the polling place said.

Achilles म्हणाले...

Trump's twitter account is public.

Minnesota voting stations are nonpublic.

Sotomayor is a parody.

Inga...Allie Oop म्हणाले...

League of Women Voters T shirts on sale now.

Wince म्हणाले...

The text of the apparel ban makes no distinction based on the speaker’s political persuasion, so MVA does not claim that the ban discriminates on the basis of viewpoint on its face. The question accordingly is whether Minnesota’s ban on political apparel is “reasonable in light of the purpose served by the forum”: voting....

What about tattoos?

Ignorance is Bliss म्हणाले...

EDH said...

What about tattoos?

Legally, you can let your tramp stamp show. Socially, your lower-back tattoo might be sending the wrong message. Or, even worse, it might be sending the right message.

Matt Sablan म्हणाले...

"So MoveOn.org would now be allowed to be worn on Some piece of apparel?"

-- Yes.

Though, I always understood it to be about voting for party/people specifically; so MoveOn/NRA Cap: Allowed. Vote Clinton/Bush Cap: Not allowed.

PM म्हणाले...

Was there any mention of Vote for Pedro?

Achilles म्हणाले...

Inga said...
League of Women Voters T shirts on sale now.


If we don't let leftists repeal the first amendment they are going to wear WOMAN SHIRTS!

As if that is a threat.

Your goal here is transparent.

The left is the enemy of freedom.

Matt Sablan म्हणाले...

"I read the opinion. Cutting through the bullshit, Minnesota basically tried to have a dress code for voters."

-- How subtle can we get? What if I wear all red or blue to signal how I plan to vote? What if I wear a shirt with a donkey on it, but not the standard logo? What if I wear a red jersey with the person I want to vote for's name on the back? Or, what if the person I want to vote for shares a name with an athlete, and I wear their jersey?

Eleanor म्हणाले...

The League of Women Voters is chartered to be non-partisan. They do provide position papers for various ballot issues. Those can get partisan although every chapter I've ever belonged to at least paid lip service to trying to get someone on each side to do research. Once upon a time the League ran the Presidential debates. They were much better at it than leaving it to the various media outlets. I can't speak to whether that would still be true today, though.

David Begley म्हणाले...

Can we all agree that Breyer and Sotomayer are the worst?

readering म्हणाले...

did you read the dissent. Merely wanted to refer the case to Minnesota Supreme Court to interpret its statute.

Jack O'Fire म्हणाले...

I know I'll be getting rich selling the 'Russians' all the screen printing gear they'll need including: Screen material, red & blue ink, T-shirt presses and the xx-large t-shirt stock (xxx-large in the appropriate places...)
HA

I Callahan म्हणाले...

Readering- it doesn’t matter. The Minnesota Supreme Court doesn’t get to decide matters of FEDERAL first amendment constitutionality. The other 7 have it right.

traditionalguy म्हणाले...

Not having full Red Regalia, a way was needed to identify the good guys in the fight. That was an early American tradition, probably learned from the original guerills bands that were here when the White Supremacists arrived.

Wearing a white feather in one's cap/hair was the signal that a man was in the special forces of Francis Marion . Later specialforces used green berets or a scarlet berets. Marion was the Revolutionary War rebel whose story was told in The Patriot. He lived among Tory Militia and bands of British Army killers who exterminated prisoners as Traitors to England's German King.

So they needed guerilla skills. The Swamp Fox's men got their revenge at King's Mountain and then at Cowpens against Banastre Tarleton's Army. Those battles were the turning point of the War for Independence leading General Cornwallis's Army to retreat to the coast at Yorktown.

Jersey Fled म्हणाले...

Always good to hear from the "wise Latina"

Ann Althouse म्हणाले...

"Readering- it doesn’t matter. The Minnesota Supreme Court doesn’t get to decide matters of FEDERAL first amendment constitutionality. The other 7 have it right."

The point is that the state court does have the final authority in the interpretation of the state law, and there was (at least to Sotomayor and Breyer) some potential to find a narrow enough meaning to the state statute that it would render the federal constitutional question unnecessary. This is an old judicial federalism question. It's the Pullman doctrine and it's why some states have the "certification" procedures that lets federal courts ask the state supreme court to provide an authoritative answer to a question of state law. Otherwise, the federal courts just do the best they can guessing at how the state court would interpret that law. This is sometimes said to cause "needless friction" between the separate court systems. It depends on how much you value state autonomy versus efficiency. Generally, Sotomayor doesn't seem to be a big proponent of federalism, so I would regard her interest in it here as more of a means to an end, that is, having more to do with her opinion of the merits of the 1st Amendment question than her respect for the independent functioning of state government.

Earnest Prole म्हणाले...

So I guess the majority is saying the Philadelphia Black Panthers' polling-place getup shouldn't bother anyone.

Matt Sablan म्हणाले...

Didn't Minnesota already get a crack at the case, or did it somehow skip straight to the Supreme Court?

Matt Sablan म्हणाले...

It looks like they kinda, sorta had the chance, and passed on it, until it was too late to matter? Either or, it seems like if Minnesota wants to try again with a narrower statute, they're welcome to. At the legislative, not the judicial level. Checks and balances.

Ann Althouse म्हणाले...

"Didn't Minnesota already get a crack at the case, or did it somehow skip straight to the Supreme Court?"

Neither. It was filed in federal court and worked its way up.

David Begley म्हणाले...

Nebraska has a certification procedure. I recall it has been used only one time and then the opinion was kind of snarky and dodge-y.

MikeR म्हणाले...

Without being familiar with the case, this sounds like another "Supreme Court has to decide whether a really stupid law is constitutional". I guess: you can have really stupid laws, but if someone abuses them they may get slapped down. Is that right?
This is why we can't have nice things, like really stupid laws.

RigelDog म्हणाले...

Inga, I think the effect of the decision is that there is no prohibition at this point on wearing messages within the voting spots. However, the Minnesota legislature seems to have the go-ahead to pass a more specific statute that clearly defines what apparel or messages are prohibited.

Ignorance is Bliss म्हणाले...

Earnest Prole said...

So I guess the majority is saying the Philadelphia Black Panthers' polling-place getup shouldn't bother anyone.

The getup? No. The standing on the steps in front of the polling place, brandishing a weapon and harassing voters? Yes, obviously.

Ignorance is Bliss म्हणाले...

Earnest Prole said...

So I guess the majority is saying the Philadelphia Black Panthers' polling-place getup shouldn't bother anyone.

Also note, one of the Black Panthers involved was a poll watcher. I think it would be reasonable to have higher restrictions on the people there in some official capacity, such as poll workers and poll watchers.

The Godfather म्हणाले...

If a State really cares about this issue, it shouldn’t be all that difficult to come up with a law that’s specific enough to satisfy the concerns expressed by the Court.

Yancey Ward म्हणाले...

Readering wrote:

"did you read the dissent. Merely wanted to refer the case to Minnesota Supreme Court to interpret its statute."

I don't really get this dissent- this is a 1st Amendment issue, and, thus, is explicitly federal, in my opinion. Indeed, the majority pointed out that Minnesota could have asked for this certification years ago at any federal decision from the district court level to the appeals court level, but only did so once it reach SCOTUS and the state knew it was likely to lose given the court's makeup. Without digging into the history of the case, I am willing to bet that the state of Minnesota won at every other lower level federal case, and the final decision overturned an earlier one. Am I right?

Yancey Ward म्हणाले...

And, let's also point out that had the state supreme court found for the state of Minnesota years ago, it would have been appealed through the federal system anyway. The dissent would have changed nothing in the end.

Yancey Ward म्हणाले...

What I strongly suspect- and I base this on my own experience at polling places over the years- is that people game the system in regards to political advertising inside polling stations, and some of the people supporting Minnesota's case were trying to defend bias in one form or another- that is why the rules are left vague to begin with.

Minnesota can enact a solution that would satisfy the majority of the court here, but they won't because it wouldn't allow any real interpretive manipulation.

Yancey Ward म्हणाले...

And I was right- SCOTUS overturned the 8th Circuit and the district court decisions.

Two-eyed Jack म्हणाले...

I view this decision as more Rococo Freedom of Speech posturing.
Nobody is made more free in any important sense. Instead, a law intended to create good order in voting is overturned on theoretical grounds. There is no real problem being solved.
Personally, I would rather they got rid of voting by mail and required men to wear a jacket and tie when voting (with extra generic ties and jackets available, as in some restaurants).
Freedom of Speech (and voting) requires the imposition of rules that inhibit bad behavior. We should not lightly throw away rules on theoretical grounds. (The complainant with the "Please I.D. Me" button should have stuck it in his pocket and cast his ballot.)

readering म्हणाले...

Because of the certification issue this case makes for interesting reading along side RBG's other opinion of the day on amount of deference to be given to foreign country (PRC) for interpretation of its law.

Sigivald म्हणाले...

Achilles said...

Trump's twitter account is public.

Minnesota voting stations are nonpublic.

Sotomayor is a parody.


Achilles ... ought to read even just the analysis of the dissent?

Because it's not about the idea that polling places aren't "public" at all, but about procedural concerns?

(Indeed, it seems to suggest that Sotomayor would support the majority decision barring the procedural and interpretational concerns.)

Birkel म्हणाले...

Two-eyed Jack has the solution: submit to authority.

I have an answer: FYNQ.

Achilles म्हणाले...

Earnest Prole said...
So I guess the majority is saying the Philadelphia Black Panthers' polling-place getup shouldn't bother anyone.

Because wearing a shirt and assaulting people trying to vote are the same thing.

Two-eyed Jack म्हणाले...

Birkel said...
Two-eyed Jack has the solution: submit to authority.

I have an answer: FYNQ.

Alternative phrasing of my stance: comply with the century-old law or work to change it through legislation.

Filtering all societal rules through a nine-justice strainer is not my preferred option. YMMV.

I'm Full of Soup म्हणाले...

I think some time ago Althouse posted a video of Minnesota's solicitor failing miserably at defending this law when questioned by USSC judges? He truly embarrassed himself.

JackWayne म्हणाले...

As usual with TSCOTUS, process is the important point. MN has the power to regulate the clothing of voters. They just have to have “clear” rules, clarity being in the eyes of the Court. So, voters are controlled in a way that makes no sense. I believe Althouse subscribes to the idea that many things are allowed under the Constitution if the government has a compelling interest. In this case, the compelling interest is mere control for the sake of control. If you want to see unlimited government in action, here it is. A little thing that only takes a small bite out of your freedom......

rcocean म्हणाले...

Everything Sotomeyer and Breyer do is politically based. Neither gives a Rap about "States Rights" unless it can be twisted to support their - left-wing positions.

To think otherwise is idiotic.

The only interesting thing is why Ruth Buzzi and Kagan voted with the majority.

Triangle Man म्हणाले...

Sometimes a t-shirt is just a t-shirt.

Trumpit म्हणाले...

Everything rcocean says is politically biased. He doesn't give a rat's ass about "States Rights" unless it can be twisted to support his ultra right-wing positions.

To think otherwise is idiotic.

JackOfClubs म्हणाले...

Nonapod said...
Not sure about you guys, but I know I base all my voting decisions on whatever the last T shirt I saw at the polling place said. 6/14/18, 10:15 AM


Suppose a dozen guys with baseball bats were standing around wearing "Vote for Boss Tweed" buttons? Justice Roberts mentioned "subtle psychological" pressure during oral argument, but these sorts of laws originated when the pressure was not so subtle.

I think most of us can give up the freedom to support the candidate of our choice for the few minutes we are in the polling place. Democracy requires establishing an appearance of legitimacy and even-handedness even if it doesn't actually affect anyone's decision.

Two-eyed Jack म्हणाले...

This JackOfClubs guy seems pretty sensible to me.