The Supreme Court heard oral arguments in a unique case in February that was about free speech and political apparel, of all things. In Minnesota Voters Alliance v. Mansky, the justices analyzed whether Minnesota statute Section 211B.11, which bans all political apparel at the polling place in a particularly broad fashion, is in fact “facially overbroad” under the First Amendment. “Facially overbroad” simply means, for example, while there are exceptions to protected free speech (like fighting words), a statute that is overly broad is defined as one that proscribes unprotected and protected speech.
This case turned out to be particularly interesting during oral arguments, as some of the judges interrogated both parties with questions of a partisan political nature, in order to point out how weak some of the arguments were — and others completely destroyed the political bias of the attorneys representing the Minnesota law many say violates First Amendment rights.
The merits of the case
About eight years ago, Andrew Cilek went to his local polling place in Hennepin County, Minn., (where I grew up) to vote. Cilek arrived to vote decked out wearing a T-shirt that had the Tea Party logo, the message “Don’t Tread on Me,” and an image of the Gadsden flag that is now often associated with the Tea Party, though it has American Revolution roots. In addition, Cilek also wore a small button that read, “Please I.D. Me.”
An election worker in the polling place told Cilek he was wearing political apparel, which violated a Minnesota law which says a “political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day” so he would have to cover his shirt up or remove the shirt and button. As you might guess, Cilek refused to do so and tried to vote two more times to no avail. He was finally allowed to vote, but an election worker took down his name and address.
The Minnesota Voters Alliance, along with Cilek, who started the group, filed a lawsuit challenging the state’s ban on “political” apparel as a violation of the First Amendment. Minnesota counters that the law helps maintains an “orderly and controlled environment” at polling locations.
For some justices, the challenge fell along partisan lines
Through questions to attorneys for both sides, Supreme Court justices try to find the holes in their arguments and signal to each other where they might lean in a decision. According to Amy Howe, who writes at Howe on the Court and SCOTUS blog, some justices appeared to agree with the statue “but other justices seemed to strongly support the challengers, while the rest didn’t clearly tip their hand.” The question again, according to J. David Breemer, the attorney who represents the Minnesota Voters Alliance and Cilek, which he laid out clearly in oral arguments, “is whether this statute on its face violates the First Amendment overbreadth doctrine. And it does violate the First Amendment doctrine — First Amendment overbreadth doctrine because it sweeps in so much political expression in association” (via transcript).
Justice Samuel Alito, seemingly the challengers’ strongest supporter, asked Breemer what happened in the approximately 40 states that do not have similar laws, if there were brawls and the like because of it. Howe reported, “Justice Neil Gorsuch asked Daniel Rogan, the assistant county attorney who defended the law, a similar question. Gorsuch suggested that Minnesota’s law is an outlier. Is there any documented need, he asked, for the law to go so far? What is the state’s compelling interest in barring so many kinds of apparel?”
Justice Elena Kagan was skeptical. It seemed obvious to her that there are some places, like a courtroom, that should prohibit political messages — but should a polling place, that exemplifies a “rowdy political process,” be one of them? Chief Justice John Roberts seemed sympathetic to the challengers, positing that maybe the Minnesota law goes too far. Rogan argued even something like a pin would have a negative effect but Roberts continued to push back.
Rogan told the justices that if they upheld the Minnesota law, it would continue to be enforced in a measured way. The ban on “political” apparel has been in place in Minnesota for over 100 years; this is the first time it has been challenged. Indeed, my friends and family have been voting in Minnesota for years — I cannot recall an issue with this ever, however anecdotal that may sound.
Alito destroyed the liberal argument
While Roberts’ and Justice Anthony Kennedy’s positions, at least based on what we can read via the oral arguments transcript, were hard to read, one judge who was not hard to read was Alito. An originalist, Catholic, and one of the most conservative justices on the Court, some of Alito’s more notable opinions include a generally strong stance on free speech cases. He did not shy away from that here.
In this case, Alito decided to test the merits of the respondents, or those who represent the Minnesota law and who believe it does not violate the First Amendment or is not, in fact, too facially broad. Some might say it was a trap, or perhaps, just a litmus test. Either way, it went like this:
JUSTICE ALITO: Yeah. Well, that makes it worse, that it has to be — well, it’s not only does it have to be a political message, but it has to be well-known. What — what is well-known?
MR. ROGAN: Well, your honor, the political has a — has a plain meaning in our statute based on that it — it’s influencing elections. What I — all that I’m describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that’s going to be reasonably understood by voters in the polling place.
JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?
MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted, unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.
JUSTICE ALITO: How about a shirt that says “Parkland Strong”?
MR. ROGAN: No, that would — that would be — that would be allowed. I think — I think, your honor —
JUSTICE ALITO: Even though gun control would very likely be an issue?
MR. ROGAN: To the extent —
JUSTICE ALITO: I bet some candidate would raise an issue about gun control.
MR. ROGAN: Your honor, the — the — the line that we’re drawing is one that is — is related to electoral choices in a —
JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?
MR. ROGAN: The — the Parkland?
JUSTICE ALITO: Yeah.
MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not —
JUSTICE ALITO: OK. How about an NRA shirt?
MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, your honor. I think that that’s a clear indication — and I think what you’re getting at, your honor —
JUSTICE ALITO: How about a shirt with the text of the Second Amendment?
MR. ROGAN: Your honor, I — I — I think that that could be viewed as political, that that — that would be — that would be —
JUSTICE ALITO: How about the First Amendment?
(Laughter.)
MR. ROGAN: No, your honor, I don’t — I don’t think the First Amendment. And, your honor, I —
Methodically, and in his usual nerdy, tough, reserved-yet-lethal style, Alito listed a bunch of sentiments that were on the surface nonpolitical, yet vaguely still somewhat political. Without fail, the attorney in favor of the law condemned every single “conservative” example and gave a thumbs up to all the more “liberal” ones.
No wonder this case made it all the way to the Supreme Court. It may be months before a decision, but it’s good to know there’s a staunch defender of free speech, particularly when a partisan bias exists, on the Supreme Court.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator’s Young Journalist Award.
