Court To Hear Appeal on NH Ballot ‘Selfie’ Ban

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On Tuesday, September 13, 2016—New Hampshire’s Primary Election Day—the First Circuit Court of Appeals in Boston will hear oral argument on New Hampshire’s ban on “ballot selfies.”

The ACLU of New Hampshire is challenging this ban on behalf of three New Hampshire voters — including one member of the New Hampshire House of Representatives Leon Rideout, who is currently seeking the Republican Party’s nomination for State Senate—on the grounds that it violates Granite Staters’ right to free speech.

On October 31, 2014, the ACLU-NH filed a federal lawsuit on behalf of three New Hampshire voters—including one member of the New Hampshire House of Representatives—challenging RSA 659:35(I) on the grounds that it violates the right to free speech under the First Amendment.  This law, which became effective on September 1, 2014, bans a person from displaying a photograph of a marked ballot reflecting “how he or she has voted,” including on the Internet through social media platforms like Twitter, Facebook, and Instagram.  Now, willfully engaging in this form of political speech is a violation-level offense punishable by a fine of up to $1,000.  The law contains no exceptions.

RSA 659:35(I) violates the First Amendment by banning pure political speech on matters of public concern beyond the polling place (including in one’s home) that is not remotely related to the State’s purported interest in enacting the law—namely, addressing vote-buying and voter coercion.  Political speech is essential to a functioning democracy.  The First Amendment does not allow the State to, as it is doing here, broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct.

On November 12, 2014, the Plaintiffs filed a motion for a preliminary injunction asking the Court to prevent enforcement of the law while this lawsuit is pending.  This Motion was consolidated with a hearing on the merits.  On March 27, 2015, the Plaintiffs filed a motion for summary judgment.

On August 11, 2015, the Court struck down the law and unequivocally concluded that the law violates free speech rights. As the Court held: “Because [the law] is vastly overinclusive and the Secretary [of State] has failed to demonstrate that less speech-restrictive alternatives will be ineffective to address the state’s concerns [regarding vote bribery and voter coercion], it cannot stand to the extent that it bars voters from disclosing images of their completed ballots.”

The State has appealed the decision to the First Circuit Court of Appeals in Boston.  The appeal is pending.  On April 15, 2016, the ACLU-NH filed its brief before the First Circuit.

Cooperating Attorney: William E. Christie of Shaheen & Gordon, P.A.

Legal Documents: Pls.’ Amended Verified Complaint; Pls.’ Motion for a Preliminary Injunction; Pls.’ Motion for Summary Judgment; State’s Opposition; Pls.’ Reply; District Court Decision; State’s First Circuit Opening Brief; ACLU First Circuit Responsive Brief; State’s First Circuit Reply; Snapchat Amicus Brief; Reporters Committee Amicus Brief; First Amendment Coalition and Keene Sentinel Amicus Brief

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