OCTOBER TERM, 1991
Syllabus
BURSON, ATTORNEY GENERAL AND REPORTER FOR TENNESSEE
v.
FREEMAN
CERTIORARI TO THE SUPREME COURT OF TENNESSEE No. 90-1056. Argued
October 8, 1991-Decided May 26,1992
Respondent Freeman, while the treasurer for a political campaign
in Tennessee, filed an action in the Chancery Court, alleging,
among other things, that §2-7-111(b) of the Tennessee Code-which
prohibits the solicitation of votes and the display or distribution
of campaign materials within 100 feet of the entrance to a polling
place-limited her ability to communicate with voters in violation
of,
inter alia, the First and Fourteenth Amendments. The
court dismissed her suit, but the State Supreme Court reversed,
ruling that the State had a compelling interest in banning such
activities within the polling place itself but not on the premises
around the polling place. Thus, it concluded, the 100-foot limit
was not narrowly tailored to protect, and was not the least
restrictive means to serve, the State's interests.
Held: The judgment is reversed, and the case is remanded.
802 S. W. 2d 210, reversed and remanded.
JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE KENNEDY, concluded that §2-7-111(b) does not violate
the First and Fourteenth Amendments. Pp. 196-211.
(a) The section is a facially content-based restriction on
political speech in a public forum and, thus, must be subjected to
exacting scrutiny: The State must show that the regulation is
necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end. This case presents a
particularly difficult reconciliation, since it involves a conflict
between the exercise of the right to engage in political discourse
and the fundamental right to vote, which is at the heart of this
country's democracy. Pp. 196-198.
(b) Section 2-7-111(b) advances Tennessee's compelling interests
in preventing voter intimidation and election fraud. There is a
substantial and long-lived consensus among the 50 States that
some restricted zone around polling places is necessary to
serve the interest in protecting the right to vote freely and
effectively. The real question then is
how large a
restricted zone is permissible or sufficiently tailored. A State is
not required to prove empirically that an election regulation is
perfectly tailored to secure such a compelling interest. Rather,
legislatures should be permitted to respond to potential
deficiencies in the electoral process with foresight, provided that
the response is reasonable and
192
Syllabus
does not significantly impinge on constitutionally protected
rights.
Munro v.
Socialist Workers Party, 479 U. S. 189,195-196.
Section 2-7111(b)'s minor geographical limitation does not
constitute such a significant impingement. While it is possible
that at some measurable distance from the polls governmental
regulation of vote solicitation could effectively become an
impermissible burden on the First Amendment, Tennessee, in
establishing its 100-foot boundary, is on the constitutional side
of the line. Pp. 198-211.
JUSTICE SCALIA concluded that §2-7-111 is constitutional because
it is a reasonable, viewpoint-neutral regulation of a nonpublic
forum. The environs of a polling place, including adjacent streets
and sidewalks, have traditionally not been devoted to assembly and
debate and therefore do not constitute a traditional public forum.
Cf.
Greer v.
Spock, 424 U. S. 828. Thus,
speech restrictions such as those in §2-7-111 need not be subjected
to "exacting scrutiny" analysis. Pp. 214-216.
BLACKMUN, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C. J., and WHITE and KENNEDY, JJ.,
joined. KENNEDY, J., filed a concurring opinion,
post, p.
211. SCALIA, J., filed an opinion concurring in the judgment,
post, p. 214. STEVENS, J., filed a dissenting opinion, in
which O'CONNOR and SOUTER, JJ., joined,
post, p. 217.
THOMAS, J., took no part in the consideration or decision of the
case.
Charles W Burson, Attorney General of Tennessee,
petitioner, argued the cause,
pro se. With him on the briefs
were
John Knox Walkup, Solicitor General, and
Andy D.
Bennett and
Michael W Catalano, Deputy Attorneys
General.
John E. Herbison argued the cause for respondent. With
him on the brief was
Alan B. Morrison. *
*Briefs of
amici curiae urging reversal were filed for
the State of Arizona et al. by
Kenneth O.
Eikenberry,
Attorney General of Washington, and
James M. Johnson, Senior
Assistant Attorney General, and by the Attorneys General for their
respective States as follows:
Grant Woods of Arizona,
Gail Norton of Colorado,
Richard Blumenthal of
Connecticut,
Robert A. Butterworth of Florida,
Michael J. Bowers of Georgia,
Warren Price
III of Hawaii,
Roland W Burris of Illinois,
Linley E.
Pearson of Indiana,
Bonnie J. Campbell of
Iowa,
Frederic J. Cowan of Kentucky,
Michael E. Carpenter of Maine,
Scott Harshbarger of
Massachusetts,
Frank J. Kelley of Michigan,
Hubert H. Humphrey III of Minnesota,
William L.
Webster of Missouri,
Marc Racicot of Montana,
Frankie
Sue Del Papa of
193
JUSTICE BLACKMUN announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, JusTICE WHITE,
and JUSTICE KENNEDY join.
Twenty-six years ago, this Court, in a majority opinion written
by Justice Hugo L. Black, struck down a state law that made it a
crime for a newspaper editor to publish an editorial on election
day urging readers to vote in a particular way.
Mills v.
Alabama, 384
U. S. 214 (1966). While the Court did not hesitate to denounce
the statute as an "obvious and flagrant abridgment" of First
Amendment rights,
id., at 219, it was quick to point out
that its holding "in no way involve[d] the extent of a State's
power to regulate conduct in and around the polls in order to
maintain peace, order and decorum there,"
id., at 218.
Today, we confront the issue carefully left open in
Mills.
The question presented is whether a provision of the Tennessee
Code, which prohibits the solicitation of votes and the display or
distribution of campaign materials within 100 feet of the entrance
to a polling place, violates the First and Fourteenth
Amendments.
I
The State of Tennessee has carved out an election-day
"campaign-free zone" through § 2-7-111(b) of its election code.
That section reads in pertinent part:
"Within the appropriate boundary as established in subsection
(a) [100 feet from the entrances], and the building in which the
polling place is located, the display of campaign posters, signs or
other campaign materials, distribution of campaign materials, and
solicitation of votes for or against any person or political party
or posi-
Nevada,
Nicholas J. Spaeth of North Dakota,
Mark Barnett of South Dakota,
Paul Van Dam of Utah,
Mary Sue Terry of Virginia, and
Mario J.
Palumbo of West Virginia; and for the National Conference of
State Legislatures et al. by
Richard Ruda and
Frederick C.
Schafrick.
194
Opinion of BLACKMUN, J.
tion on a question are prohibited." Tenn. Code Ann. §2-7-111(b)
(Supp. 1991).1
Violation of §2-7-111(b) is a Class C misdemeanor punishable by
a term of imprisonment not greater than 30 days or a fine not to
exceed $50, or both. Tenn. Code Ann. §§2-19119 and 40-35-111(e)(3)
(1990).
II
Respondent Mary Rebecca Freeman has been a candidate for office
in Tennessee, has managed local campaigns, and has worked actively
in statewide elections. In 1987, she was the treasurer for the
campaign of a city-council candidate in Metropolitan
Nashville-Davidson County.
Asserting that §§ 2-7-111(b) and 2-19-119 limited her ability to
communicate with voters, respondent brought a facial challenge to
these statutes in Davidson County Chancery Court. She sought a
declaratory judgment that the provisions were unconstitutional
under both the United States and the Tennessee Constitutions. She
also sought a permanent injunction against their enforcement.
The Chancellor ruled that the statutes did not violate the
United States or Tennessee Constitutions and dismissed respondent's
suit. App.50. He determined that § 2-7-111(b) was a content-neutral
and reasonable time, place, and manner restriction; that the
100-foot boundary served a compelling state interest in protecting
voters from interference, ha-
1 Section 2-7-111(a) also provides for boundaries of 300 feet
for counties within specified population ranges. Petitioner's
predecessor Attorney General (an original defendant) opined that
this distinction was unconstitutional under Art. XI, § 8, of the
Tennessee Constitution. Tenn. Op. Atty. Gen. No. 87-185 (1987).
While this issue was raised in the pleadings, the District Court
held that respondent did not have standing to challenge the
300-foot boundaries because she was not a resident of any of those
counties. The Tennessee Supreme Court did not reach the issue.
Accordingly, the constitutionality of the 100-foot boundary is the
only restriction before us.
195
rassment, and intimidation during the voting process; and that
there was an alternative channel for respondent to exercise her
free speech rights outside the 100-foot boundary. App. to Pet. for
Cert. 1a.
The Tennessee Supreme Court, by a 4-to-1 vote, reversed. 802 S.
W. 2d 210 (1990). The court first held that § 2-7111(b) was content
based "because it regulates a specific subject matter, the
solicitation of votes and the display or distribution of campaign
materials, and a certain category of speakers, campaign workers."
Id., at 213. The court then held that such a content-based
statute could not be upheld unless (i) the burden placed on free
speech rights is justified by a compelling state interest and (ii)
the means chosen bear a substantial relation to that interest and
are the least intrusive to achieve the State's goals. While the
Tennessee Supreme Court found that the State unquestionably had
shown a compelling interest in banning solicitation of voters and
distribution of campaign materials within the polling place itself,
it concluded that the State had not shown a compelling interest in
regulating the premises around the polling place. Accordingly, the
court held that the 100-foot limit was not narrowly tailored to
protect the demonstrated interest. The court also held that the
statute was not the least restrictive means to serve the State's
interests. The court found less restrictive the current Tennessee
statutes prohibiting interference with an election or the use of
violence or intimidation to prevent voting. See Tenn. Code Ann.
§§2-19-101 and 2-19-115 (Supp. 1991). Finally, the court noted that
if the State were able to show a compelling interest in preventing
congestion and disruption at the entrances to polling places, a
shorter radius "might perhaps pass constitutional muster." 802 S.
W. 2d, at 214.
Because of the importance of the issue, we granted certiorari.
499 U. S. 958 (1991). We now reverse the Tennessee Supreme Court's
judgment that the statute violates the First Amendment of the
United States Constitution.
196
Opinion of BLACKMUN, J.
III
The First Amendment provides that "Congress shall make no law
... abridging the freedom of speech .... " This Court in
Thornhill v.
Alabama, 310 U. S. 88, 95 (1940),
said:
"The freedom of speech ... which [is] secured by the First
Amendment against abridgment by the United States, [is] among the
fundamental personal rights and liberties which are secured to all
persons by the Fourteenth Amendment against abridgment by a
State."
The Tennessee statute implicates three central concerns in our
First Amendment jurisprudence: regulation of political speech,
regulation of speech in a public forum, and regulation based on the
content of the speech. The speech restricted by § 2-7-111(b)
obviously is political speech. "Whatever differences may exist
about interpretations of the First Amendment, there is practically
universal agreement that a major purpose of that Amendment was to
protect the free discussion of governmental affairs."
Mills
v.
Alabama, 384 U. S., at 218. "For speech concerning public
affairs is more than self-expression; it is the essence of
self-government."
Garrison v.
Louisiana, 379 U. S. 64, 74-75
(1964). Accordingly, this Court has recognized that "the First
Amendment 'has its fullest and most urgent application' to speech
uttered during a campaign for political office."
Eu v.
San Francisco Cty. Democratic Central Comm., 489 U. S. 214, 223 (1989)
(quoting
Monitor Patriot Co. v.
Roy, 401 U. S. 265, 272
(1971)).
The second important feature of §2-7-111(b) is that it bars
speech in quintessential public forums. These forums include those
places "which by long tradition or by government fiat have been
devoted to assembly and debate," such as parks, streets, and
sidewalks.
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 45 (1983).2 "Such use
2 Testimony at trial established that at some Tennessee polling
locations the campaign-free zone included sidewalks and streets
adjacent to the polling places. See App. 23-24, 42. See also 802 S.
W. 2d 210, 213 (1990).
197
of the streets and public places has, from ancient times, been a
part of the privileges, immunities, rights, and liberties of
citizens."
Hague v.
CIO, 307 U. S. 496, 515 (1939)
(opinion of Roberts, J.). At the same time, however, expressive
activity, even in a quintessential public forum, may interfere with
other important activities for which the property is used.
Accordingly, this Court has held that the government may regulate
the time, place, and manner of the expressive activity, so long as
such restrictions are content neutral, are narrowly tailored to
serve a significant governmental interest, and leave open ample
alternatives for communication.
United States v.
Grace, 461 U.
S. 171, 177 (1983). See also
Ward v.
Rock Against
Racism, 491 U. S.
781, 791 (1989).
The Tennessee restriction under consideration, however, is not a
facially content-neutral time, place, or manner restriction.
Whether individuals may exercise their free speech rights near
polling places depends entirely on whether their speech is related
to a political campaign. The statute does not reach other
categories of speech, such as commercial solicitation,
distribution, and display. This Court has held that the First
Amendment's hostility to content-based regulation extends not only
to a restriction on a particular viewpoint, but also to a
prohibition of public discussion of an entire topic. See,
e. g.,
Consolidated Edison Co. of N.
Y. v.
Public Service
Comm'n of N.
Y., 447 U. S. 530, 537
(1980). Accord,
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991)
(statute restricting speech about crime is content based).3
3 Content-based restrictions also have been held to raise
Fourteenth Amendment equal protection concerns because, in the
course of regulating speech, such restrictions differentiate
between types of speech. See
Police Dept. of Chicago v.
Mosley, 408 U.
S. 92 (1972) (exemption of labor picketing from ban on
picketing near schools violates Fourteenth Amendment right to equal
protection). See also
City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 816 (1984)
(suggesting that exception for political campaign signs from
general ordinance prohibiting posting of signs might entail
constitutionally forbidden content discrimina-
198
Opinion of BLACKMUN, J.
As a facially content-based restriction on political speech in a
public forum, § 2-7-111(b) must be subjected to exacting scrutiny:
The State must show that the "regulation is necessary to serve a
compelling state interest and that it is narrowly drawn to achieve
that end."
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S., at 45. Accord,
Board of Airport Comm'rs of
Los Angeles v.
Jews for Jesus, Inc., 482 U. S. 569, 573
(1987);
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788, 800
(1985);
United States v.
Grace, 461 U. S., at
177.
Despite the ritualistic ease with which we state this
nowfamiliar standard, its announcement does not allow us to avoid
the truly difficult issues involving the First Amendment. Perhaps
foremost among these serious issues are cases that force us to
reconcile our commitment to free speech with our commitment to
other constitutional rights embodied in government proceedings.
See,
e. g., Sheppard v.
Maxwell, 384 U. S. 333, 361-363
(1966) (outlining restrictions on speech of trial participants that
courts may impose to protect an accused's right to a fair trial).
This case presents us with a particularly difficult reconciliation:
the accommodation of the right to engage in political discourse
with the right to vote-a right at the heart of our democracy.
IV
Tennessee asserts that its campaign-free zone serves two
compelling interests. First, the State argues that its regulation
serves its compelling interest in protecting the right of its
citizens to vote freely for the candidates of their choice.4
tion). Under either a free speech or equal protection theory, a
contentbased regulation of political speech in a public forum is
valid only if it can survive strict scrutiny.
Carey v.
Brown, 447 U.
S. 455, 461-462 (1980).
4 See
Piper v.
Swan, 319 F. Supp. 908, 911 (ED
Tenn. 1970) (purpose of regulation is to prevent intimidation of
voters entering the polling place by political workers), writ of
mandamus denied
sub nom. Piper v.
United States District
Court, 401 U. S. 971 (1971).
199
Second, Tennessee argues that its restriction protects the right
to vote in an election conducted with integrity and reliability.
5
The interests advanced by Tennessee obviously are compelling
ones. This Court has recognized that the "right to vote freely for
the candidate of one's choice is of the essence of a democratic
society."
Reynolds v.
Sims, 377 U. S. 533, 555
(1964). Indeed,
"[n]o right is more precious in a free country than that of
having a voice in the election of those who make the laws under
which, as good citizens, we must live. Other rights, even the most
basic, are illusory if the right to vote is undermined."
Wesberry v. Sanders, 376 U. S. 1, 17 (1964).
Accordingly, this Court has concluded that a State has a
compelling interest in protecting voters from confusion and undue
influence. See
Eu, 489 U. S., at 228-229.
The Court also has recognized that a State "indisputably has a
compelling interest in preserving the integrity of its election
process."
Id., at 231. The Court thus has "upheld generally
applicable and evenhanded restrictions that protect the integrity
and reliability of the electoral process itself."
Anderson
v.
Celebrezze, 460 U. S. 780, 788, n. 9
(1983) (collecting cases). In other words, it has recognized that a
State has a compelling interest in ensuring that an individual's
right to vote is not undermined by fraud in the election
process.
To survive strict scrutiny, however, a State must do more than
assert a compelling state interest-it must demonstrate that its law
is necessary to serve the asserted interest.
5 See Tennessee Law Revision Commission, Special Report of the
Law Revision Commission to Eighty-Seventh General Assembly of
Tennessee Concerning a Bill to Adopt an Elections Act Containing a
Unified and Coherent Treatment of All Elections 13 (1972)
(provision is one of numerous safeguards included to preserve
"purity of elections").
200
Opinion of BLACKMUN, J.
While we readily acknowledge that a law rarely survives such
scrutiny, an examination of the evolution of election reform, both
in this country and abroad, demonstrates the necessity of
restricted areas in or around polling places.
During the colonial period, many government officials were
elected by the
viva voce method or by the showing of hands,
as was the custom in most parts of Europe. That voting scheme was
not a private affair, but an open, public decision, witnessed by
all and improperly influenced by some. The opportunities that the
viva voce system gave for bribery and intimidation gradually
led to its repeal. See generally E. Evans, A History of the
Australian Ballot System in the United States 1-6 (1917) (Evans);
J. Harris, Election Administration in the United States 15-16
(1934) (Harris); J. Rusk, The Effect of the Australian Ballot
Reform on Split Ticket Voting: 1876-1908, pp. 8-11 (1968)
(Rusk).
Within 20 years of the formation of the Union, most States had
incorporated the paper ballot into their electoral system.
Initially, this paper ballot was a vast improvement. Individual
voters made their own handwritten ballots, marked them in the
privacy of their homes, and then brought them to the polls for
counting. But the effort of making out such a ballot became
increasingly more complex and cumbersome. See generally S.
Albright, The American Ballot 14-19 (1942) (Albright); Evans 5;
Rusk 9-14.
Wishing to gain influence, political parties began to produce
their own ballots for voters. These ballots were often printed with
flamboyant colors, distinctive designs, and emblems so that they
could be recognized at a distance. State attempts to standardize
the ballots were easily thwarted-the vote buyer could simply place
a ballot in the hands of the bribed voter and watch until he placed
it in the polling box. Thus, the evils associated with the earlier
viva voce system reinfected the election process; the
failure of
201
the law to secure secrecy opened the door to bribery 6 and
intimidation.7 See generally Albright 19-20; Evans 7, 11; Harris
17, 151-152; V. Key, Politics, Parties, and Pressure Groups 649
(1952); J. Reynolds, Testing Democracy: Electoral Behavior and
Progressive Reform in New Jersey, 1880-1920, p. 36 (1988); Rusk
14-23.
6 One writer described the conditions as follows:
"This sounds like exaggeration, but it is truth; and these are
facts so notorious that no one acquainted with the conduct of
recent elections now attempts a denial-that the raising of colossal
sums for the purpose of bribery has been rewarded by promotion to
the highest offices in the Government; that systematic organization
for the purchase of votes, individually and in blocks, at the
polls, has become a recognized factor in the machinery of the
parties; that the number of voters who demand money compensation
for their ballots has grown greater with each recurring election."
J. Gordon, The Protection of Suffrage 13 (1891) (quoted in Evans
11).
Evans reports that the bribery of voters in Indiana in 1880 and
1888 was sufficient to determine the results of the election and
that "[m]any electors, aware that the corrupt element was large
enough to be able to turn the election, held aloof altogether."
Ibid.
7 According to a report of a committee of the 46th Congress, men
were frequently marched or carried to the polls in their employers'
carriages. They were then furnished with ballots and compelled to
hold their hands up with their ballots in them so they could easily
be watched until the ballots were dropped into the box. S. Rep. No.
497, 46th Cong., 2d Sess., 9-10 (1880).
Evans recounted that intimidation, particularly by employers,
was "extensively practiced":
"Many labor men were afraid to vote and remained away from the
polls.
Others who voted against their employers' wishes frequently lost
their jobs. If the employee lived in a factory town, he probably
lived in a tenement owned by the company, and possibly his wife and
children worked in the mill. If he voted against the wishes of the
mill-owners, he and his family were thrown out of the mill, out of
the tenement, and out of the means of earning a livelihood.
Frequently the owner and the manager of the mill stood at the
entrance of the polling-place and closely observed the employees
while they voted. In this condition, it cannot be said that the
workingmen exercised any real choice." Evans 12-13 (footnote
omitted).
202
Opinion of BLACKMUN, J.
Approaching the polling place under this system was akin to
entering an open auction place. As the elector started his journey
to the polls, he was met by various party ticket peddlers "who were
only too anxious to supply him with their party tickets." Evans 9.
Often the competition became heated when several such peddlers
found an uncommitted or wavering voter. See L. Fredman, The
Australian Ballot: The Story of an American Reform 24 (1968)
(Fredman); Rusk 17. Sham battles were frequently engaged in to keep
away elderly and timid voters of the opposition. See Fredman
24,26-27; 143 North American Review 628-629 (1886) (cited in Evans
16). In short, these early elections "were not a very pleasant
spectacle for those who believed in democratic government."
Id., at 10.
The problems with voter intimidation and election fraud that the
United States was experiencing were not unique. Several other
countries were attempting to work out satisfactory solutions to
these same problems. Some Australian provinces adopted a series of
reforms intended to secure the secrecy of an elector's vote. The
most famous feature of the Australian system was its provision for
an official ballot, encompassing all candidates of all parties on
the same ticket. But this was not the only measure adopted to
preserve the secrecy of the ballot. The Australian system also
provided for the erection of polling booths (containing several
voting compartments) open only to election officials, two
"scrutinees" for each candidate, and electors about to vote. See J.
Wigmore, The Australian Ballot System as Embodied in the
Legislation of Various Countries 69, 71, 78, 79 (1889) (Wigmore)
(excerpting provisions adopted by South Australia and Queensland).
See generally Albright 23; Evans 17; Rusk 23-24.
The Australian system was enacted in England in 1872 after a
study by the committee of election practices identified Australia's
ballot as the best possible remedy for the existing situation. See
Wigmore 14-16. Belgium followed Eng-
203
land's example in 1877. Like the Australian provinces, both
England and Belgium excluded the general public from the entire
polling room. See Wigmore 94, 105. See generally Albright 23-24;
Evans 17-18; Rusk 24-25.
One of the earliest indications of the reform movement in this
country came in 1882 when the Philadelphia Civil Service Reform
Association urged its adoption in a pamphlet entitled "English
Elections." Many articles were written praising its usefulness in
preventing bribery, intimidation, disorder, and inefficiency at the
polls. Commentators argued that it would diminish the growing evil
of bribery by removing the knowledge of whether it had been
successful. Another argument strongly urged in favor of the reform
was that it would protect the weak and dependent against
intimidation and coercion by employers and creditors. The inability
to determine the effectiveness of bribery and intimidation
accordingly would create order and decency at the polls. See
generally Albright 24-26; Evans 21-23; Rusk 25-29, 42-43.
After several failed attempts to adopt the Australian system in
Michigan and Wisconsin, the Louisville, Kentucky, municipal
government, the Commonwealth of Massachusetts, and the State of New
York adopted the Australian system in 1888. The Louisville law
prohibited all but voters, candidates or their agents, and electors
from coming within 50 feet of the voting room inclosure. The
Louisville law also provided that candidates' agents within the
restricted area "were not allowed to persuade, influence, or
intimidate any one in the choice of his candidate, or to attempt
doing so .... " Wigmore 120. The Massachusetts and New York laws
differed somewhat from the previous Acts in that they excluded the
general public only from the area encompassed within a guardrail
constructed six feet from the voting compartments. See
id.,
at 47, 128. This modification was considered an improvement because
it provided additional monitoring by members of the general public
and independent
204
Opinion of BLACKMUN, J.
candidates, who in most States were not allowed to be
represented by separate inspectors. Otherwise, "in order to
perpetrate almost every election fraud it would only be necessary
to buy up the election officers of the other party."
Id., at
52. Finally, New York also prohibited any person from
"electioneering on election day within any polling-place, or within
one hundred feet of any polling place."
Id., at 131. See
generally Evans 18-21; Rusk 26.
The success achieved through these reforms was immediately
noticed and widely praised. See generally Evans 21-24; Rusk 26-31,
42-43. One commentator remarked of the New York law of 1888:
"We have secured secrecy; and intimidation by employers, party
bosses, police officers, saloonkeepers and others has come to an
end.
"In earlier times our polling places were frequently, to quote
the litany, 'scenes of battle, murder, and sudden death.' This also
has come to an end, and until nightfall, when the jubilation
begins, our election days are now as peaceful as our Sabbaths.
"The new legislation has also rendered impossible the old
methods of frank, hardy, straightforward and shameless bribery of
voters at the polls." W. Ivins, The Electoral System of the State
of New York, Proceedings of the 29th Annual Meeting of the New York
State Bar Association 316 (1906).8
The triumphs of 1888 set off a rapid and widespread adoption of
the Australian system in the United States. By 1896,
8 Similar results were achieved with the Massachusetts law:
"Quiet, order, and cleanliness reign in and about the
polling-places. I have visited precincts where, under the old
system, coats were torn off the backs of voters, where ballots of
one kind have been snatched from voters' hands and others put in
their places, with threats against using any but the substituted
ballots; and under the new system all was orderly and peaceable." 2
Annals of the American Academy of Political and Social Science 738
(1892).
205
almost 90 percent of the States had adopted the Australian
system. This accounted for 92 percent of the national electorate.
See Rusk 30-31. See also Albright 26-28; Evans
27;
post, at 215, n. 1 (SCALIA, J., concurring in judgment)
(citations to statutes passed before 1900).
The roots of Tennessee's regulation can be traced back to two
provisions passed during this period of rapid reform. Tennessee
passed the first relevant provision in 1890 as part of its switch
to an Australian system. In its effort to "secur[e] the purity of
elections," Tennessee provided that only voters and certain
election officials were permitted within the room where the
election was held or within 50 feet of the entrance. The Act did
not provide any penalty for violation and applied only in the more
highly populated counties and cities. 1890 Tenn. Pub. Acts, ch. 24,
§§ 12 and 13.
The second relevant provision was passed in 1901 as an amendment
to Tennessee's "Act to preserve the purity of elections, and define
and punish offenses against the elective franchise." The original
Act, passed in 1897, made it a misdemeanor to commit various
election offenses, including the use of bribery, violence, or
intimidation in order to induce a person to vote or refrain from
voting for any particular person or measure. 1897 Tenn. Pub. Acts,
ch. 14. The 1901 amendment made it a misdemeanor for any person,
except the officers holding the elections, to approach nearer than
30 feet to any voter or ballot box. This provision applied to all
Tennessee elections. 1901 Tenn. Pub. Acts, ch. 142.
These two laws remained relatively unchanged until 1967, when
Tennessee added yet another proscription to its secret ballot law.
This amendment prohibited the distribution of campaign literature
"on the same floor of a building, or within one hundred (100) feet
thereof, where an election is in progress." 1967 Tenn. Pub. Acts,
ch. 85.
In 1972, the State enacted a comprehensive code to regulate the
conduct of elections. The code included a section that proscribed
the display and the distribution of campaign
206
Opinion of BLACKMUN, J.
material and the solicitation of votes within 100 feet of the
entrance to a polling place. The 1972 "campaign-free zone" is the
direct precursor of the restriction challenged in the present
litigation.
Today, all 50 States limit access to the areas in or around
polling places. See App. to Pet. for Cert. 26a-50a; Note,
Defoliating the Grassroots: Election Day Restrictions on Political
Speech, 77 Geo. L. J. 2137 (1989) (summarizing statutes as of
1989). The National Labor Relations Board also limits activities at
or near polling places in union-representation elections.9
In sum, an examination of the history of election regulation in
this country reveals a persistent battle against two evils: voter
intimidation and election fraud. After an unsuccessful experiment
with an unofficial ballot system, all 50 States, together with
numerous other Western democracies, settled on the same solution: a
secret ballot secured in part by a restricted zone around the
voting compartments. We find that this widespread and time-tested
consensus demonstrates that some restricted zone is necessary in
order to serve the States' compelling interests in preventing voter
intimidation and election fraud.
Respondent and the dissent advance three principal challenges to
this conclusion. First, respondent argues that restricted zones are
overinclusive because States could secure these same compelling
interests with statutes that make it a misdemeanor to interfere
with an election or to use violence or intimidation to prevent
voting. See,
e. g., Tenn. Code Ann. §§2-19-101 and
2-19-115 (Supp. 1991). We are not persuaded. Intimidation and
interference laws fall short of serving a State's compelling
interests because they "deal
9 See, e. g., Season-All Industries, Inc. v. NLRB,
654 F.2d
932 (CA3 1981); NLRB v. Carroll Contracting and Ready-Mix,
Inc.,
636 F.2d
111 (CA5 1981); Midwest Stock Exchange, Inc. v. NLRB,
620 F.2d
629 (CA7), cert. denied, 449 U. S. 873 (1980); Michem, Inc.,
170 N. L. R. B. 362 (1968); Claussen Baking Co., 134 N. L. R. B.
111 (1961).
207
with only the most blatant and specific attempts" to impede
elections. Cf.
Buckley v.
Valeo, 424 U. S. 1,28 (1976)
(existence of bribery statute does not preclude need for limits on
contributions to political campaigns). Moreover, because law
enforcement officers generally are barred from the vicinity of the
polls to avoid any appearance of coercion in the electoral process,
see Tenn. Code Ann. § 2-7-103 (1985), many acts of interference
would go undetected. These undetected or less than blatant acts may
nonetheless drive the voter away before remedial action can be
taken.
Second, respondent and the dissent argue that Tennessee's
statute is underinclusive because it does not restrict other types
of speech, such as charitable and commercial solicitation or exit
polling, within the 100-foot zone. We agree that distinguishing
among types of speech requires that the statute be subjected to
strict scrutiny. We do not, however, agree that the failure to
regulate all speech renders the statute fatally underinclusive. In
fact, as one early commentator pointed out, allowing members of the
general public access to the polling place makes it more difficult
for political machines to buy off all the monitors. See Wigmore 52.
But regardless of the need for such additional monitoring, there
is, as summarized above, ample evidence that political candidates
have used campaign workers to commit voter intimidation or
electoral fraud. In contrast, there is simply no evidence that
political candidates have used other forms of solicitation or exit
polling to commit such electoral abuses. States adopt laws to
address the problems that confront them. The First Amendment does
not require States to regulate for problems that do not exist.
Finally, the dissent argues that we confuse history with
necessity. Yet the dissent concedes that a secret ballot was
necessary to cure electoral abuses. Contrary to the dissent's
contention, the link between ballot secrecy and some restricted
zone surrounding the voting area is not merely timing-it is common
sense. The only way to preserve the
208
Opinion of BLACKMUN, J.
secrecy of the ballot is to limit access to the area around the
voter.10 Accordingly, we hold that
some restricted zone
around the voting area is necessary to secure the State's
compelling interest.
The real question then is
how large a restricted zone is
permissible or sufficiently tailored. Respondent and the dissent
argue that Tennessee's 100-foot boundary is not narrowly drawn to
achieve the State's compelling interest in protecting the right to
vote. We disagree.
As a preliminary matter, the long, uninterrupted, and prevalent
use of these statutes makes it difficult for States to come forward
with the sort of proof the dissent wishes to require. The majority
of these laws were adopted originally in the 1890's, long before
States engaged in extensive legislative hearings on election
regulations. The prevalence of these laws, both here and abroad,
then encouraged their reenactment without much comment. The fact
that these laws have been in effect for a long period of time also
makes it difficult for the States to put on witnesses who can
testify as to what would happen without them. Finally, it is
difficult to isolate the exact effect of these laws on voter
intimidation and election fraud. Voter intimidation and election
fraud are successful precisely because they are difficult to
detect.
Furthermore, because a government has such a compelling interest
in securing the right to vote freely and effectively, this Court
never has held a State "to the burden of demonstrating empirically
the objective effects on political stability that [are] produced"
by the voting regulation in question.
10 The logical connection between ballot secrecy and restricted
zones distinguishes this case from those cited by the dissent in
which the Court struck down longstanding election regulations. In
those cases, there was no rational connection between the asserted
interest and the regulation. See,
e. g., Harper v.
Virginia Ed. of Elections, 383 U. S. 663, 666 (1966)
("Voter qualifications have no relation to wealth nor to paying or
not paying this or any other tax").
209
Munro v.
Socialist Workers Party, 479 U. S. 189, 195
(1986).11 Elections vary from year to year, and place to
place. It is therefore difficult to make specific findings about
the effects of a voting regulation. Moreover, the remedy for a
tainted election is an imperfect one. Rerunning an election would
have a negative impact on voter turnout.12 Thus, requiring proof
that a 100-foot boundary is perfectly tailored to deal with voter
intimidation and election fraud
"would necessitate that a State's political system sustain some
level of damage before the legislature could take corrective
action. Legislatures, we think, should be permitted to respond to
potential deficiencies in the electoral process with foresight
rather than reactively, provided that the response is reasonable
and does not significantly impinge on constitutionally
protected rights." Id., at 195-196 (emphasis added).
11 This modified "burden of proof" does not apply to all cases
in which there is a conflict between First Amendment rights and a
State's election process-instead, it applies only when the First
Amendment right threatens to interfere with the act of voting
itself, i.
e., cases involving voter confusion from
overcrowded ballots, like
Munro, or cases such as this one,
in which the challenged activity physically interferes with
electors attempting to cast their ballots. Thus, for example,
States must come forward with more specific findings to support
regulations directed at intangible "influence," such as the ban on
election-day editorials struck down in
Mills v.
Alabama, 384
U. S. 214 (1966).
12 The dissent argues that our unwillingness to require more
specific findings is in tension with
Sheppard v.
Maxwell, 384
U. S. 333 (1966), another case in which there was conflict
between two constitutional rights. Trials do not, however, present
the same evidentiary or remedial problems. Because the judge is
concerned only with the trial before him, it is much easier to make
specific findings. And while the remedy of rerunning a trial is an
onerous one, it does not suffer from the imperfections of a
rescheduled election. Nonetheless, even in the fair trial context,
we reaffirmed that, given the importance of the countervailing
right, "'our system of law has always endeavored to prevent even
the
probability of unfairness.'''
Id., at 352
(quoting
In re Murchison, 349 U. S. 133, 136
(1955)) (emphasis added).
210
Opinion of BLACKMUN, J.
We do not think that the minor geographic limitation prescribed
by § 2-7-111(b) constitutes such a significant impingement. Thus,
we simply do not view the question whether the 100-foot boundary
line could be somewhat tighter as a question of "constitutional
dimension."
Id., at 197. Reducing the boundary to 25 feet,
as suggested by the Tennessee Supreme Court, 802 S. W. 2d, at 214,
is a difference only in degree, not a less restrictive alternative
in kind.
Buckley v.
Valeo, 424 U. S., at 30. As was
pointed out in the dissenting opinion in the Tennessee Supreme
Court, it "takes approximately 15 seconds to walk 75 feet." 802 S.
W. 2d, at 215. The State of Tennessee has decided that these last
15 seconds before its citizens enter the polling place should be
their own, as free from interference as possible. We do not find
that this is an unconstitutional choiceP
At some measurable distance from the polls, of course,
governmental regulation of vote solicitation could effectively
become an impermissible burden akin to the statute struck down in
Mills v.
Alabama, 384 U. S. 214 (1966). See
also
Meyer v.
Grant, 486 U. S. 414 (1988)
(invalidating absolute bar against the use of paid circulators). In
reviewing challenges to specific provisions of a State's election
laws, however, this Court has not employed any" 'litmus-paper
test'
13 Respondent also raises two more specific challenges to the
tailoring of the Tennessee statute. First, she contends that there
may be some polling places so situated that the 100-foot boundary
falls in or on the other side of a highway. Second, respondent
argues that the inclusion of quintessential public forums in some
campaign-free zones could result in the prosecution of an
individual for driving by in an automobile with a campaign bumper
sticker. At oral argument, petitioner denied that the statute would
reach this latter, inadvertent conduct, since this would not
constitute "display" of campaign material. Tr. of Oral Arg. 33-35.
In any event, these arguments are "as applied" challenges that
should be made by an individual prosecuted for such conduct. If
successful, these challenges would call for a limiting construction
rather than a facial invalidation. In the absence of any factual
record to support respondent's contention that the statute has been
applied to reach such circumstances, we do not entertain the
challenges in this case.
211
that will separate valid from invalid restrictions."
Anderson v.
Celebrezze, 460 U. S., at 789 (quoting
Storer v.
Brown, 415 U. S. 724, 730
(1974)). Accordingly, it is sufficient to say that in establishing
a 100-foot boundary, Tennessee is on the constitutional side of the
line.
In conclusion, we reaffirm that it is the rare case in which we
have held that a law survives strict scrutiny. This, however, is
such a rare case. Here, the State, as recognized administrator of
elections, has asserted that the exercise of free speech rights
conflicts with another fundamental right, the right to cast a
ballot in an election free from the taint of intimidation and
fraud. A long history, a substantial consensus, and simple common
sense show that some restricted zone around polling places is
necessary to protect that fundamental right. Given the conflict
between these two rights, we hold that requiring solicitors to
stand 100 feet from the entrances to polling places does not
constitute an unconstitutional compromise.
The judgment of the Tennessee Supreme Court is reversed, and the
case is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
JUSTICE THOMAS took no part in the consideration or decision of
this case.
JUSTICE KENNEDY, concurring.
Earlier this Term, I questioned the validity of the Court's
recent First Amendment precedents suggesting that a State may
restrict speech based on its content in the pursuit of a compelling
interest.
Simon &
Schuster, Inc. v.
Members
of N.
Y. State Crime Victims Bd., 502 U. S. 105, 124-125
(1991) (opinion concurring in judgment). Under what I deem the
proper approach, neither a general content-based proscription of
speech nor a content-based proscription of speech in a public forum
can be justified unless the speech falls within
212
one of a limited set of well-defined categories. See
ibid. Today's case warrants some elaboration on the meaning
of the term "content based" as used in our jurisprudence.
In
Simon &
Schuster, my concurrence pointed
out the seeming paradox that notwithstanding "our repeated
statement that 'above all else, the First Amendment means that
government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content,'"
id., at 126 (quoting
Police Dept. of Chicago v.
Mosley, 408 U.
S. 92, 95 (1972)), we had fallen into the practice of
suggesting that content-based limits on speech can be upheld if
confined in a narrow way to serve a compelling state interest. I
continue to believe that our adoption of the compelling-interest
test was accomplished by accident, 502 U. S., at 125, and as a
general matter produces a misunderstanding that has the potential
to encourage attempts to suppress legitimate expression.
The test may have a legitimate role, however, in sorting out
what is and what is not a content-based restriction. See
id., at 128 ("[W]e cannot avoid the necessity of deciding
... whether the regulation is in fact content based or content
neutral"). As the Court has recognized in the context of
regulations of the time, place, or manner of speech, "[g]overnment
regulation of expressive activity is content neutral so long as it
is
'justified without reference to the content of the
regulated speech.'"
Ward v.
Rock Against Racism,
491 U. S. 781,
791 (1989) (quoting
Clark v.
Community for Creative
Non-Violence, 468
U. S. 288, 293 (1984)) (emphasis added in
Ward). In some
cases, the fact that a regulation is content based and invalid
because outside any recognized category permitting suppression will
be apparent from its face. In my view that was true of the New York
statute we considered in
Simon &
Schuster, and no
further inquiry was necessary. To read the statute was sufficient
to strike it down as an effort by government to restrict expression
because of its content.
213
Discerning the justification for a restriction of expression,
however, is not always so straightforward as it was, or should have
been, in
Simon &
Schuster. In some cases, a
censorial justification will not be apparent from the face of a
regulation which draws distinctions based on content, and the
government will tender a plausible justification unrelated to the
suppression of speech or ideas. There the compellinginterest test
may be one analytical device to detect, in an objective way,
whether the asserted justification is in fact an accurate
description of the purpose and effect of the law. This explanation
of the compelling-interest analysis is not explicit in our
decisions; yet it does appear that in time, place, and manner
cases, the regulation's justification is a central inquiry. See,
e. g., Ward v.
Rock Against Racism, supra, at 791;
Clark v.
Community for Creative NonViolence, supra,
at 293;
Heffron v.
International Society for Krishna
Consciousness, Inc., 452 U. S. 640, 648-649,
and n. 12 (1981). And in those matters we do not apply as strict a
requirement of narrow tailoring as in other contexts,
Ward
v.
Rock Against Racism, supra, at 797, although this may be
because in cases like
Ward, Clark, and
Heffron,
content neutrality was evident on the face of the regulations once
the justification was identified and became itself the object of
examination.
The same use of the compelling-interest test is adopted today,
not to justify or condemn a category of suppression but to
determine the accuracy of the justification the State gives for its
law. The outcome of that analysis is that the justification for the
speech restriction is to protect another constitutional right. As I
noted in
Simon &
Schuster, there is a narrow area
in which the First Amendment permits freedom of expression to yield
to the extent necessary for the accommodation of another
constitutional right. 502 U. S., at 124, 128. That principle can
apply here without danger that the general rule permitting no
content restriction will be engulfed by the analysis; for under the
statute the State acts
214
SCALIA, J., concurring in judgment
to protect the integrity of the polling place where citizens
exercise the right to vote. Voting is one of the most fundamental
and cherished liberties in our democratic system of government. The
State is not using this justification to suppress legitimate
expression. With these observations, I concur in the opinion of
JUSTICE BLACKMUN and the judgment of the Court.
JUSTICE SCALIA, concurring in the judgment.
If the category of "traditional public forum" is to be a tool of
analysis rather than a conclusory label, it must remain faithful to
its name and derive its content from
tradition. Because
restrictions on speech around polling places on election day are as
venerable a part of the American tradition as the secret ballot,
Tenn. Code Ann. §2-7-111 (Supp. 1991) does not restrict speech in a
traditional public forum, and the "exacting scrutiny" that the
plurality purports to apply,
ante, at 198, is inappropriate.
Instead, I believe that § 2-7111, though content based, is
constitutional because it is a reasonable, viewpoint-neutral
regulation of a nonpublic forum. I therefore concur in the judgment
of the Court.
As the plurality correctly notes, the 100-foot zone established
by § 2-7-111 sometimes encompasses streets and sidewalks adjacent
to the polling places.
Ante, at 196, n. 2. The plurality's
determination that § 2-7-111 is subject to strict scrutiny is
premised on its view that these areas are "quintessential public
forums," having"
'by long tradition ... been devoted to
assembly and debate.'"
Ante, at 196 (emphasis added).
Insofar as areas adjacent to functioning polling places are
concerned, that is simply not so. Statutes such as §2-7-111 have an
impressively long history of general use. Ever since the widespread
adoption of the secret ballot in the late 19th century,
viewpoint-neutral restrictions on election-day speech within a
specified distance of the polling place-or on physical presence
there-have been commonplace, indeed prevalent. By 1900, at least 34
of the 45
215
States (including Tennessee) had enacted such restrictions.1 It
is noteworthy that most of the statutes banning electionday speech
near the polling place specified the same distance set forth in §
2-7-111 (100 feet),2 and it is clear that the re-
1 Act of Mar. 3, 1875, No. 18, § 95, 1874-1875 Ala. Acts 76, 99;
Act of Mar. 4, 1891, No. 30, §39, 1891 Ark. Gen. Acts 32, 48; Act
of Mar. 20, 1891, ch. 130, §32.1215, 1891 Cal. Stats. 165, 178; Act
of Mar. 26, 1891, §37, 1891 Colo. Sess. Laws 143, 164; Act of June
22, 1889, ch. 247, § 13, 1889 Conn. Pub. Acts 155, 158; Act of May
15, 1891, ch. 37, §33, 1891 Del. Laws 85, 100; Act of May 25, 1895,
ch. 4328, § 39, 1895 Fla. Laws 56, 76; Act of Feb. 25, 1891, § 4,
1891 Idaho Sess. Laws 50, 51; Act of June 22, 1891, § 28, 1891 Ill.
Laws 107, 119; Act of Mar. 6, 1889, ch. 87, § 55, 1889 Ind. Acts
157, 182; Act of Apr. 12, 1886, ch. 161, § 13, 1886 Iowa Acts 187,
192; Act of Mar. 11, 1893, ch. 78, § 26, 1893 Kan. Sess. Laws 106,
120; Act of June 30, 1892, ch. 65, §25, 1891-1892 Ky. Acts 106,
121; Act of Apr. 2, 1896, ch. 202, § 103, 1896 Md. Laws 327, 384;
Act of Apr. 12,1895, ch. 275,1895 Mass. Acts 276; Act of Apr. 21,
1893, ch. 4, § 108, 1893 Minn. Laws 16, 51; Act of 1880, ch. 16, §
11, 1880 Miss. Gen. Laws 108, 112; Act of May 16, 1889, § 35, 1889
Mo. Laws 105, 110; Mont. Code Ann., Title 4, § 73 (1895); Act of
Mar. 4, 1891, ch. 24, § 29, 1891 Neb. Laws 238, 255; Act of Mar.
13, 1891, ch. 40, § 30, 1891 Nev. Stats. 40, 46; Act of May 28,
1890, ch. 231, § 63, 1890 N. J. Laws 361, 397; Act of May 2, 1890,
ch. 262, § 35, 1890 N. Y. Laws 482, 494; Act of Mar. 7, 1891, ch.
66, §34, 1891 N. D. Laws 171, 182; Act of May 4, 1885, 1885 Ohio
Leg. Acts 232, 235; Act of Feb. 13, 1891, § 19, 1891 Ore. Laws 8,
13; Act of Mar. 5, 1891, ch. 57, § 35, 1891 S. D. Laws 152, 164;
Act of Mar. 11, 1890, ch. 24, § 13, 1890 Tenn. Pub. Acts 50, 55;
Act of Mar. 28, 1896, ch. 69, § 37, 1896 Utah Laws 183,208; Act of
Mar. 6, 1894, ch. 746, § 10, 1893-1894 Va. Acts 862, 864; Act of
Mar. 19, 1890, ch. 13, § 33, 1889-1890 Wash. Laws 400, 412; Act of
Mar. 11, 1891, ch. 89, § 79, 1891 W. Va. Acts 226, 257; Act of Apr.
3, 1889, ch. 248, §36, 1889 Wis. Laws 253, 267; Act of Jan. 1,
1891, ch. 100, 1890 Wyo. Sess. Laws 392.
2 E.
g., Act of Mar. 4, 1891, No. 30, §39, 1891
Ark. Gen. Acts 32, 48; Act of Mar. 20, 1891, ch. 130, § 1215, 1891
Cal. Stats. 165, 178; Act of Mar. 26, 1891, §37, 1891 Colo. Sess.
Laws 143, 164; Act of June 22, 1889, ch. 247, § 13, 1889 Conn. Pub.
Acts 155, 158; Act of Feb. 25, 1891, § 4, 1890 Idaho Sess. Laws 50,
51; Act of June 22, 1891, §28, 1891 Ill. Laws 107, 119; Act of Apr.
12, 1886, ch. 161, § 13, 1886 Iowa Acts 187, 192; Act of Mar. 11,
1893, ch. 78, § 26, 1893 Kan. Sess. Laws 106, 120; Act of Apr. 2,
1896, ch. 202, § 103, 1896 Md. Laws 327, 384; Act of May 16, 1889,
§ 35, 1889 Mo. Laws 105, 110; Act of Mar. 4, 1891, ch. 24, §29,
1891 Neb. Laws 238, 255; Act of Mar. 13, 1891, ch. 40, §30, 1891
Nev. Stats. 40,46; Act of May 28,
216
SCALIA, J., concurring in judgment
stricted zones often encompassed streets and sidewalks. Thus,
the streets and sidewalks around polling places have traditionally
not been devoted to assembly and debate.
Nothing in the public forum doctrine or in this Court's
precedents warrants disregard of this longstanding tradition.
"Streets and sidewalks" are not public forums
in all places,
see
Greer v.
Spock, 424 U. S. 828 (1976)
(streets and sidewalks on military base are not a public forum),
and the long usage of our people demonstrates that the portions of
streets and sidewalks adjacent to polling places are not public
forums
at all times either. This unquestionable tradition
could be accommodated, I suppose, by holding laws such as § 2-7-111
to be covered by our doctrine of permissible "time, place, and
manner" restrictions upon public forum speechwhich doctrine is
itself no more than a reflection of our traditions, see
Perry
Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 45 (1983).
The problem with this approach, however, is that it would require
some expansion of (or a unique exception to) the "time, place, and
manner" doctrine, which does not permit restrictions that are not
content neutral (§ 2-7-111 prohibits only electioneering speech).
Ibid. It is doctrinally less confusing to acknowledge that
the environs of a polling place, on election day, are simply not a
"traditional public forum"-which means that they are subject to
speech restrictions that are reasonable and viewpoint neutral.
Id., at 46.
For the reasons that the plurality believes § 2-7-111 survives
exacting scrutiny,
ante, at 198-211, I believe it is at
least reasonable; and respondent does not contend that it is
viewpoint discriminatory. I therefore agree with the judgment of
the Court that §2-7-111 is constitutional.
1890, ch. 231, § 63, 1890 N. J. Laws 361, 397; Act of May 4,
1885, 1885 Ohio Leg. Acts 232, 235; Act of Mar. 28,1896, ch. 69,
§37, 1896 Utah Laws 183, 208; Act of Apr. 3, 1889, ch. 248, § 36,
1889 Wis. Laws 253, 267.
217
JUSTICE STEVENS, with whom JUSTICE O'CONNOR and JUSTICE SOUTER
join, dissenting.
The speech and conduct prohibited in the campaign-free zone
created by Tenn. Code Ann. § 2-7-111 (Supp. 1991) is classic
political expression. As this Court has long recognized,
"[d]iscussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of
government established by our Constitution. The First Amendment
affords the broadest protection to such political expression in
order 'to assure [the] unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people.'"
Buckley v.
Valeo, 424 U. S. 1, 14 (1976)
(citation omitted). Therefore, I fully agree with the plurality
that Tennessee must show that its" 'regulation is necessary to
serve a compelling state interest and that it is narrowly drawn to
achieve that end.'"
Ante, at 198 (citations omitted). I do
not agree, however, that Tennessee has made anything approaching
such a showing.
I
Tennessee's statutory "campaign-free zone" raises constitutional
concerns of the first magnitude. The statute directly regulates
political expression and thus implicates a core concern of the
First Amendment. Moreover, it targets only a specific subject
matter (campaign speech) and a defined class of speakers (campaign
workers) and thus regulates expression based on its content. In
doing so, the Tennessee statute somewhat perversely disfavors
speech that normally is accorded greater protection than the kinds
of speech that the statute does not regulate. For these reasons,
Tennessee unquestionably bears the heavy burden of demonstrating
that its silencing of political expression is necessary and
narrowly tailored to serve a compelling state interest.
Statutes creating campaign-free zones outside polling places
serve two quite different functions-they protect or-
218
derly access to the polls and they prevent last-minute
campaigning. There can be no question that the former constitutes a
compelling state interest and that, in light of our decision in
Mills v.
Alabama, 384 U. S. 214 (1966), the
latter does not. Accordingly, a State must demonstrate that the
particular means it has fashioned to ensure orderly access to the
polls do not unnecessarily hinder last-minute campaigning.
Campaign-free zones are noteworthy for their broad, antiseptic
sweep. The Tennessee zone encompasses at least 30,000 square feet
around each polling place; in some States, such as Kentucky and
Wisconsin, the radius of the restricted zone is 500 feet-silencing
an area of over 750,000 square feet. Even under the most sanguine
scenario of participatory democracy, it is difficult to imagine
voter turnout so complete as to require the clearing of hundreds of
thousands of square feet simply to ensure that the path to the
pollingplace door remains open and that the curtain that protects
the secrecy of the ballot box remains closed.
The fact that campaign-free zones cover such a large area in
some States unmistakably identifies censorship of electionday
campaigning as an animating force behind these restrictions. That
some States have no problem maintaining order with zones of 50 feet
or less strongly suggests that the more expansive prohibitions are
not necessary to maintain access and order. Indeed, on its face,
Tennessee's statute appears informed by political concerns.
Although the statute initially established a 100-foot zone, it was
later amended to establish a 300-foot zone in 12 of the State's 95
counties. As the State Attorney General observed, "there is not a
rational basis" for this special treatment, for there is no
"discernable reason why an extension of the boundary ... is
necessary in" those 12 counties. Brief in Opposition 4a, Tenn. Op.
Atty. Gen. No. 87-185.
Moreover, the Tennessee statute does not merely regulate conduct
that might inhibit voting; it bars the simple
219
"display of campaign posters, signs, or other campaign
materials." § 2-7-111(b). Bumper stickers on parked cars and lapel
buttons on pedestrians are taboo. The notion that such sweeping
restrictions on speech are necessary to maintain the freedom to
vote and the integrity of the ballot box borders on the absurd.
The evidence introduced at trial to demonstrate the necessity
for Tennessee's campaign-free zone was exceptionally thin. Although
the State's sole witness explained the need for special
restrictions
inside the polling place itself, she offered no
justification for a ban on political expression
outside the
polling place.1 On this record it is far from surprising that the
Tennessee Supreme Court-which surely is more familiar with the
State's electoral practices and traditions than we are-concluded
that the lOO-foot ban outside the polling place was not justified
by regulatory concerns. This conclusion is bolstered by Tennessee
law, which indicates that normal police protection is completely
adequate to maintain order in the area more than
10 feet
from the polling place.2
Perhaps in recognition of the poverty of the record, the
plurality-without briefing, or legislative or judicial
factfinding-looks to history to assess whether Tennessee's
stat-
1 See 802 S. W. 2d 210, 213 (Tenn. 1990) ("The specific
testimony of the State's witness about confusion, error,
overcrowding, etc. concerned the numbers of persons present in the
polling place itself, not the numbers of persons outside the
polls").
2 Within the polling place itself, and within 10 feet of its
entrance, a prohibition against the presence of nonvoters is
justified, in part by the absence of normal police protection.
Section 2-7-103(c) provides:
"No policeman or other law-enforcement officer may come nearer
to the entrance to a polling place than ten feet (10') or enter the
polling place except at the request of the officer of elections or
the county election commission or to make an arrest or to
vote."
There is, however, no reason to believe that the Tennessee
Legislature regarded the normal protection against disruptive
conduct outside that 10-foot area as insufficient to guarantee
orderly access.
220
ute is in fact necessary to serve the State's interests. From
its review of the history of electoral reform, the plurality finds
that
"all 50 States ... settled on the same solution: a secret ballot
secured in part by a restricted zone around the voting
compartments. We find that this widespread and time-tested
consensus demonstrates that some restricted zone is
necessary in order to serve the States' compelling interest in
preventing voter intimidation and election fraud." Ante, at
206 (emphasis added).
This analysis is deeply flawed; it confuses history with
necessity, and mistakes the traditional for the indispensable. The
plurality's reasoning combines two logical errors: First, the
plurality assumes that a practice's long life itself establishes
its necessity; and second, the plurality assumes that a practice
that was once necessary remains necessary until it is ended.3
With regard to the first, the fact that campaign-free zones
were, as the plurality indicates, introduced as part of a broader
package of electoral reforms does not demonstrate that such zones
were
necessary. The abuses that affected the electoral
system could have been cured by the institution of the secret
ballot and by the heightened regulation of the polling place alone,
without silencing the political speech
outside the
polling place.4 In my opinion, more than mere timing is required to
infer necessity from tradition.
3 I leave it to historians to review the substantive accuracy of
the plurality's narrative, for I find more disturbing the
plurality's
use of history.
4 The plurality's suggestion that "[t]he only way to preserve
the secrecy of the ballot is to limit access to the area around the
voter,"
ante, at 207-208, is specious. First, there are
obvious and simple means of preserving voter secrecy
(e. g.,
opaque doors or curtains on the voting booth) that do not involve
the suppression of political speech. Second, there is no
disagreement that the restrictions on campaigning
within the
polling place are constitutional; the issue is not whether the
State may limit access to the "area
around the voter" but
whether the State may limit speech in the area
around the
polling place.
221
We have never regarded tradition as a proxy for necessity where
necessity must be demonstrated. To the contrary, our election-law
jurisprudence is rich with examples of traditions that, though
longstanding, were later held to be unnecessary. For example,
"[m]ost of the early Colonies had [poll taxes]; many of the States
have had them during much of their histories .... "
Harper
v.
Virginia Bd. of Elections, 383 U. S. 663, 684 (1966)
(Harlan, J., dissenting). Similarly, substantial barriers to
candidacy, such as stringent petition requirements, see
Williams v.
Rhodes, 393 U. S. 23 (1968),
property-ownership requirements, see
Turner v.
Fouche,
396 U. S. 346 (1970), and onerous filing fees, see
Lubin
v.
Panish, 415
U. S. 709 (1974), were all longstanding features of the
electoral labyrinth.
In fact, two of our most noted decisions in this area involve,
as does this case, Tennessee's electoral traditions.
Dunn v.
Blumstein, 405
U. S. 330 (1972), which invalidated Tennessee's i-year
residency requirement, is particularly instructive. Tennessee's
residency requirement was indisputably "traditional," having been
in place since 1870. App. in
Dunn v.
Blumstein, O. T.
1971, No. 13, p. 22. As in this case, the State defended its law on
the basis of its interest in "'secur[ing] the freedom of elections
and the purity of the ballot box.'"
Id., at 23. Again like
this case,
Dunn involved a conflict between two rights-the
right to travel and the right to vote. The Court applied strict
scrutiny, ruling that residency requirements are "unconstitutional
unless the State can demonstrate that such laws are
'necessary to promote a
compelling governmental
interest.'" 405 U. S., at 342 (emphasis in original) (citation
omitted). Although we recognized that "[p]reservation of the
'purity of the ballot box' is a formidable-sounding state
interest,"
id., at 345, we rejected the State's argument
that a i-year requirement was necessary to promote that interest.
In doing so, we did not even mention, let alone find determinative,
the fact that Tennessee's requirement was more than 100 years
old.
222
In
Baker v.
Carr, 369 U. S. 186 (1962), we
addressed the apportionment of Tennessee's Legislature. The State's
apportionment regime had remained unchanged since 1901 and was such
that, by the time of trial, "40% of the voters elect[ed] 63 of the
99 members of the [state] House" of Representatives.
Id., at
253 (Clark, J., concurring). Although, as Justice Frankfurter
observed in dissent, "'very unequal' representation" had been a
feature of the Nation's political landscape since colonial times,
id., at 307-318, the Court was not bound by this long
tradition. Our other cases resemble
Dunn and
Baker in
this way: Never have we indicated that tradition was synonymous
with necessity.
Even if we assume that campaign-free zones were once somehow
"necessary," it would not follow that, 100 years later, those
practices remain necessary. Much in our political culture,
institutions, and practices has changed since the turn of the
century: Our elections are far less corrupt, far more civil, and
far more democratic today than 100 years ago. These salutary
developments have substantially eliminated the need for what is, in
my opinion, a sweeping suppression of core political speech.
Although the plurality today blithely dispenses with the need
for factual findings to determine the necessity of "traditional"
restrictions on speech, courts that have made such findings with
regard to other campaign-free zones have, without exception, found
such zones unnecessary. See,
e. g., Florida Comm.
for Liability Reform v.
McMillan, 682 F. Supp. 1536,
1541-1542 (MD Fla. 1988);
Clean-Up '84 v.
Heinrich,
582 F. Supp. 125 (MD Fla. 1984), aff'd,
759 F.2d
1511 (CAll 1985). Likewise, courts that have invalidated
similar restrictions on so-called "exit polling" by the news media
have, after careful factfinding, also declined to find such
prohibitions "necessary." See,
e. g., Firestone v.
NewsPress Publishing Co., 538 So. 2d 457, 459 (Fla. 1989)
(invalidating Florida's 50-foot zone to the extent that it reaches
outside the polling room and noting that "[a]t the evidentiary
223
hearing, no witnesses testified of any disturbances having
occurred within fifty feet of the polling room .... The state's
unsubstantiated concern of potential disturbance is not sufficient
to overcome the chilling effect on first amendment rights");
Daily Herald Co. v.
Munro, 838
F.2d 380, 385, n. 8 (CA9 1988) (observing with regard to
Washington's 300-foot zone that" '[t]here isn't one iota of
testimony about a single voter that was upset, or intimidated, or
threatened'" (quoting trial transcript));
National Broadcasting
Co. v.
Cleland, 697 F. Supp. 1204, 1211-1212 (ND Ga.
1988);
CBS Inc. v.
Smith, 681 F. Supp. 794, 803 (SD
Fla. 1988). All of these courts, having received evidence on this
issue, were far better situated than we are to assess the
contemporary necessity of campaign-free zones. All of these courts
concluded that such suppression of expression is unnecessary,
suggesting that such zones were something of a social atavism. To
my mind, this recent history, developed in the context of an
adversarial search for the truth, indicates that, whatever the
original historical basis for campaign-free zones may have been,
their continued "necessity" has not been established. Especially
when we deal with the First Amendment, when the reason for a
restriction disappears, the restriction should as well.
II
In addition to sweeping too broadly in its reach, Tennessee's
campaign-free zone selectively prohibits speech based on content.
Like the statute the Court found invalid in
First Nat. Bank of
Boston v.
Bellotti, 435 U. S. 765, 785
(1978), the Tennessee statute regulates "the subjects about which
persons may speak and the speakers who may address a public issue."
Within the zone, § 2-7-111 silences all campaign-related
expression, but allows expression on any other subject: religious,
artistic, commercial speech, even political debate and solicitation
concerning issues or candidates not on the day's ballot. Indeed, as
I read it, §2-7-111 does not prohibit exit polling, which surely
presents at least as
224
great a potential interference with orderly access to the polls
as does the distribution of campaign leaflets, the display of
campaign posters, or the wearing of campaign buttons. This
discriminatory feature of the statute severely undercuts the
credibility of its purported law-and-order justification.
Tennessee's content-based discrimination is particularly
problematic because such a regulation will inevitably favor certain
groups of candidates. As the testimony in this case illustrates,
several groups of candidates rely heavily on last-minute
campaigning. See App. 22-23. Candidates with fewer resources,
candidates for lower visibility offices, and "grassroots"
candidates benefit disproportionately from last-minute campaigning
near the polling place. See Note, Defoliating the Grassroots:
Election Day Restrictions on Political Speech, 77 Geo. L. J. 2137,
2158-2160 (1989) (collecting authorities).
Although the plurality recognizes that the Tennessee statute is
content based, see
ante, at 197-198, it does not inquire
into whether that discrimination itself is related to any purported
state interest. To the contrary, the plurality makes the surprising
and unsupported claim that the selective regulation of protected
speech is justified because, "[t]he First Amendment does not
require States to regulate for problems that do not exist."
Ante, at 207. Yet earlier this Term, the Court rejected an
asserted state interest because that interest "ha[d] nothing to do
with the State's" content-based distinctions among expressive
activities.
Simon &
Schuster, Inc. v.
Members
of N.
Y. State Crime Victims Bd., 502 U. S. 105, 120
(1991); see also
Arkansas Writers' Project, Inc. v.
Ragland, 481
U. S. 221, 231 (1987). Similarly in
Carey v.
Brown, 447 U.
S. 455, 464-465 (1980), the Court acknowledged Illinois'
interest in "residential privacy" but invalidated that State's ban
on picketing because its distinction between labor and nonlabor
picketing could not be "justified by reference to the State's
interest in maintaining domestic tranquility."
225
In this case the same is true: Tennessee's differential
treatment of campaign speech furthers no asserted state interest.
Access to, and order around, the polls would be just as threatened
by the congregation of citizens concerned about a local
environmental issue not on the ballot as by the congregation of
citizens urging election of their favored candidate. Similarly,
assuming that disorder immediately outside the polling place could
lead to the commission of errors or the perpetration of fraud, such
disorder could just as easily be caused by a religious dispute
sparked by a colporteur as by a campaign-related dispute sparked by
a campaign worker. In short, Tennessee has failed to point to any
legitimate interest that would justify its selective regulation of
campaign-related expression.
III
Although the plurality purports to apply "exacting scrutiny,"
its three marked departures from that familiar standard may have
greater significance for the future than its precise holding about
campaign-free zones. First, the plurality declines to take a hard
look at whether a state law is in fact "necessary." Under the
plurality's analysis, a State need not demonstrate that
contemporary demands compel its regulation of protected expression;
it need only show that that regulation can be traced to a
longstanding tradition.5
Second, citing
Munro v.
Socialist Workers Party,
479 U. S. 189
(1986), the plurality lightens the State's burden of proof in
showing that a restriction on speech is "narrowly tai-
5 The plurality emphasizes that this case "force[s] us to
reconcile our commitment to free speech with our commitment to
other constitutional rights."
Ante, at 198 (citing
Sheppard v.
Maxwell, 384 U. S. 333, 361-363
(1966)). Although I agree with the plurality on this matter, this
characterization of the controversy does not compel (or even
indicate) deference to tradition. Indeed in
Sheppard itself,
the Court did not defer to tradition or established practices, but
rather imposed on "appellate tribunals ... the duty to make an
independent evaluation of the circumstances" of every case.
Id., at 362.
226
lored." In
Munro, we upheld a Washington ballot-access
law and, in doing so, observed that we would not "requir[e] a State
to make a particularized showing of the existence of voter
confusion, ballot overcrowding, or the presence of frivolous
candidacies prior to the imposition of reasonable restrictions on
ballot access."
Id., at 194-195. We stated that legislatures
"should be permitted to respond to potential deficiencies in the
electoral process with foresight rather than reactively, provided
that the response is reasonable and does not significantly impinge
on constitutionally protected rights."
Id., at 195-196. I
have substantial doubts about the plurality's extension of
Munro's reasoning to this case, most fundamentally because I
question the plurality's assumption that campaign-free zones do
"not significantly impinge on constitutionally protected rights."
Not only is this the very question before us, but in light of the
sweep of such zones and the vital First Amendment interests at
stake, I do not know how that assumption can be sound.
Third, although the plurality recognizes the problematic
character of Tennessee's content-based suppressive regulation,
ante, at 197-198, it nonetheless upholds the statute because
"there is simply no evidence" that commercial or charitable
solicitation outside the polling place poses the same potential
dangers as campaigning outside the polling place,
ante, at
207. This analysis contradicts a core premise of strict
scrutiny-namely, that the heavy burden of justification is
on
the State. The plurality has effectively shifted the burden of
proving the necessity of content discrimination from the State to
the plaintiff.
In sum, what the plurality early in its opinion calls "exacting
scrutiny,"
ante, at 198, appears by the end of its analysis
to be neither exacting nor scrutiny. To borrow a mixed metaphor,
the plurality's scrutiny is "toothless."
Mathews v.
Lucas, 427 U.
S. 495, 510 (1976).
227
IV
Ours is a Nation rich with traditions. Those traditions
sometimes support, and sometimes are superseded by, constitutional
rules. By tradition, for example, Presidential campaigns end on
election eve; yet Congress certainly could not enforce that
tradition by enacting a law proscribing campaigning on election
day. At one time as well, bans on election-day editorial
endorsements were traditional in some States,6 but
Mills v.
Alabama, 384
U. S. 214 (1966), established that such bans are incompatible
with the First Amendment.
In
Mills, we set aside the conviction of a newspaper
editor who violated such a ban. In doing so, we declined to accept
the State's analogy between the electoral process and the judicial
process, and its claim that the State could, on election day,
insulate voters from political sentiments and ideas much the same
way as a jury is sequestered.7 We squarely rejected the State's
claim that its ban was justified by the need to protect the public
"'from confusive last-minute charges and countercharges and the
distribution of propaganda in an effort to influence voters on an
election day.'"
Id., at 219 (quoting
State v.
Mills, 278 Ala. 188, 195-196, 176 So. 2d 884,890 (1965)). To
the contrary, we recognized that it is precisely
on election
day that advocacy and campaigning "can be most effective."
Mills, 384 U. S., at 219.
Mills stands for the simple
proposition that, tradition notwithstanding, the State does not
have a legitimate interest in insulating voters from election-day
campaigning. Thus, in
6 See,
e. g., 1913 Mont. Laws § 34, pp. 590, 607;
1911 N. D. Laws, ch. 129, § 16, pp. 210, 214; 1909 are. Laws, ch.
3, § 34, pp. 15, 29.
7 "The idea behind [the ban on endorsements] was to prevent the
voters from being subjected to unfair pressure and 'brainwashing'
on the day when their minds should remain clear and untrammeled by
such influences, just as this court is insulated against further
partisan advocacy once these arguments are submitted." Brief for
Appellee, O. T. 1965, No. 597, p. 9.
228
light of
Mills, the fact that campaign-free zones are
"traditional" tends to undermine, rather than to support, the
validity of the Tennessee statute. In short, we should scrutinize
the Tennessee statute for what it is-a police power regulation that
also silences a substantial amount of protected political
expression.
In my opinion, the presence of campaign workers outside a
polling place is, in most situations, a minor nuisance. But we have
long recognized that" 'the fact that society may find speech
offensive is not a sufficient reason for suppressing it.'''
Hustler Magazine, Inc. v.
Falwell, 485 U. S. 46, 55 (1988)
(citation omitted). Although we often pay homage to the electoral
process, we must be careful not to confuse sanctity with silence.
The hubbub of campaign workers outside a polling place may be a
nuisance, but it is also the sound of a vibrant democracy.
In silencing that sound, Tennessee "trenches upon an area in
which the importance of First Amendment protections is 'at its
zenith.'''
Meyer v.
Grant, 486 U. S. 414, 425 (1988)
(citation omitted). For that reason, Tennessee must shoulder the
burden of demonstrating that its restrictions on political speech
are no broader than necessary to protect orderly access to the
polls. It has not done so.
I therefore respectfully dissent.
Comments
Be the first to comment
Leave a Comment