01:13 - Source: CNN
States can actually limit free speech on Election Day

Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.

Story highlights

Many states restrict voters' freedom of speech on Election Day, writes Danny Cevallos

That's how Justin Timberlake came under scrutiny for a voting booth selfie, he writes

CNN  — 

When you go into the polling booth on Election Day, you can’t necessarily count on having the kind of virtually unlimited freedom Americans are guaranteed under the First Amendment. Just ask Justin Timberlake.

The singer drew attention this week for taking a selfie inside a polling booth during early voting in his hometown in Tennessee, where taking photos in a polling station is a misdemeanor punishable by up to 30 days in jail.

Here’s how you know a law is of questionable morality: Tuesday, the Shelby County, Tennessee, district attorney’s office said the matter was “under review.” What’s there to review? The photo is more of a smoking gun than, well, an actual smoking gun.

The DA’s office didn’t take 24 hours to investigate whether a crime was committed. It took 24 hours to make a public relations determination: either prosecute a famous voter for broadcasting his democratic pride, or openly ignore a potential violation of criminal law.

Shelby County District Attorney General Amy Weirich said her office’s earlier statement that the selfie incident was being investigated “was incorrect and was released without my knowledge.”

It’s a lose-lose situation, and a lose-lose law.

Evidently, it’s not clear what conduct is outlawed at polling stations, if A-list celebrities are potentially violating election laws.

Still, what kinds of activities are legal and illegal on Election Day?

Big surprise: It varies a lot from state to state. Most of the laws in some way restrict some kind of speech – and not just any speech. These laws directly suppress political speech, which is traditionally a most safeguarded form of expression.

On the other hand, states have a compelling interest in protecting a person’s right to vote freely for the candidates of their choice, and to vote in an election conducted with integrity and reliability.

Election Day is consequently a rare time when speech regulations survive the strict scrutiny of the courts. To the Supreme Court, it’s just “simple common sense” that suppressing speech at polling places is necessary to prevent voter intimidation and election fraud. Simply put: On Election Day, states can prohibit activities that they could not ordinarily prohibit.

For starters, each prohibits electioneering within a set distance from the polling place, but those distances are arbitrary and vary considerably.

In Alaska, prohibited activities must be at least 200 feet away from a polling place, while down in Alabama, that boundary is 30 feet. Those two states disagree – by 170 feet – on the effective range of coercive speech. And while 200 feet is a reasonable distance, courts have struck down a 500-foot buffer zone as too much.

What’s prohibited inside this zone? “Electioneering.”

OK. What’s electioneering? Well, that definition varies among the states, too.

Some of the forbidden activities near voting areas seem pretty obvious. Maine forbids sound trucks, loudspeakers and bullhorns. Hawaii forbids motor caravans, parades, entertainment troupes and prize giveaways. Of course, no one is saying you can’t have a Green Party T-shirt cannon or a Libertarian polka band perform on Election Day in Hawaii – you just have be more than 200 feet from the polling place when you do.

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    Delaware is even stricter. In the First State, “electioneering” includes any discussion at all about issues, candidates or partisan topics. That means you can’t even talk about voting while you’re voting in Delaware.

    Electioneering isn’t just about what you say, it’s about what you wear. In Maryland, for example, you can’t wear any items – including shirts, ball caps, stickers, or buttons – that support (or oppose) a candidate.

    That’s right: it may be illegal to wear bright red baseball hats with embroidered slogans on them when you vote.

    To the courts, apparel restrictions protect the orderly conduct of elections by creating a neutral zone within the polling place. This neutral zone prevents fistfights, intimidation of voters and smear campaigns.

    And don’t even try to understand the selfie rules. Eighteen states have laws regulating sharing any photo of your ballot. Six states bar photography in polling places but do allow photos of mail-in ballots, and federal courts have invalidated some of these voting selfie laws too.

    No wonder Justin Timberlake – and many others – have accidentally gotten in trouble for demonstrating their voter pride at the polls. Fortunately for Timberlake, the DA declined to prosecute.

    This year, the rules about voting places are particularly likely to be discussed.

    Amid his claims of a “rigged” election, Republican presidential nominee Donald Trump has implored his supporters to show up on Election Day, but not just to vote. He has encouraged them to monitor polling places and to be vigilant against voter fraud.

    Some have suggested that directing citizens to engage in ballot-watching might be illegal. Since the states are all over the place on regulating partisan observers at the voting booths, it’s hard to say whether asking citizens to do so would be illegal.

    Laws prohibiting political discussions or wearing a Hillary Clinton “I’m with her” T-shirt would never be tolerated under normal circumstances. On their own, without the context of an election, they smack of a totalitarian regime, or a dictatorship.

    But elections are not normal circumstances. Our society, legislatures and courts have to balance the right to engage in political discourse with the right to vote. On Election Day, the right to vote temporarily trumps those ordinarily sacrosanct freedoms of speech.