The last Supreme Court term ended in June with two huge victories for free speech. The next term might bring more of the same.
This fall, the justices will decide whether to hear a free speech case that could have major ramifications for voters across the country. In Minnesota Voters Alliance v. Mansky, I represent Minnesota voters in their First Amendment challenge to a government-imposed dress code at polling places in the North Star State.
Minnesota law prohibits voters from wearing political apparel at the polling place. The law doesn’t just outlaw campaign messages like “Vote for Hilary” or “Vote for Trump,” but also messages that endorse any group with “recognizable political views.” That means you could face criminal prosecution for wearing a shirt that bears the logo of the Tea Party, MoveOn.org, the NAACP, the NRA, or any other organization that the State associates with a political cause.
Minnesota’s political apparel ban is unconstitutional. The First Amendment protects Americans against laws that burden more speech than necessary to serve legitimate governmental interests. Three decades ago, the Supreme Court invalidated an ordinance that banned all “First Amendment activities” at Los Angeles International Airport. In a 9-0 decision, the Court held that government could not create a virtual “First Amendment Free Zone” without running afoul of the First Amendment.
The same logic applies here. By criminalizing all sorts of shirts, buttons, and badges, Minnesota has essentially created speech-free zones at polling places across the State. Yet speech-free zones are inconsistent with the First Amendment’s Free Speech Clause.
A favorable ruling from the Supreme Court would vindicate the First Amendment rights of voters nationwide. Nine states, from New Jersey to Tennessee, have laws that are virtually identical to the Minnesota law we’re challenging. Yet if the Court declines review, states without broad bans on political apparel might seize the opportunity to enact them. Thus, the Court’s decision whether to take this case will likely determine the future of the First Amendment at the polling place.