George F. Will
WASHINGTON – Andrew Cilek might be – this is just a hunch – unaware that 2018 is Brooks Brothers’ bicentennial. Judging by what he wore when he went out to vote in Minneapolis on Nov. 2, 2010, his preferences in shirts run less to button-down Oxford cloth than to chatty T-shirts. The question the U.S. Supreme Court will consider on Wednesday is whether Cilek’s expressive shirt impermissibly interfered with Minnesota’s interest in maintaining “peace, order and decorum” at polling places.
Minnesota forbids voters from wearing in a polling place political badges, buttons or other insignia designed to “influence and impact” voting, or “promoting a group with recognizable political views,” even if the things worn do not refer to any candidate or issue on that day’s ballot. Nine other states have similar laws, and all 50 states have “speech-free zones” around polling places. Cilek’s T-shirt featured the Gadsden Flag (“Don’t Tread on Me”) and a small tea party logo. He also sported a button, from a group worried about voter fraud, that read “Please I.D. Me.” He was temporarily prevented from voting, so, being a real – that is, litigious – American he went to court.
The Supreme Court has found no constitutional infirmity in campaign-free zones, but Minnesota’s law as Cilek experienced it seems to mandate a First Amendment-free zone, which he says is unconstitutionally overbroad. Minnesota has admitted that its law also would forbid apparel bearing the logos of, for example, the Chamber of Commerce and the AFL-CIO, which do indeed have “recognizable political views.” These might (to use the language of campus speech police) “trigger” in people who see them … what? Political thoughts perhaps tangentially related to candidates or propositions on the ballot?
A lower court upheld the law used against Cilek’s T-shirt as furthering Minnesota’s legitimate interest in polling-place “peace, order and decorum” and “the integrity of its election process” and – the nanny state never sleeps – to protect voters “from confusion and undue influence.” What is more offensive, the paternalistic condescension of the government assuming that “confusion” will somehow discombobulate voters who glimpse, say, an “American Legion” or “NAACP” sweatshirt, or the government’s hubris as censor of influence that is “undue?”
It is one thing to ban, as the court has allowed, active “solicitation of votes” in or close to a polling place. It is, however, a bit much for Minnesota to forbid passive expression of political – very broadly defined – allegiances not associated with any person or issue being voted on. What about a shirt emblazoned with the words “America is the land of opportunity?” Those words, which a guide for University of California employees says can constitute a “microaggression,” could trigger fainting spells among voters at polling places sniffing for the reek of unchecked white privilege.
And what about a T-shirt with a pristinely unpolitical message (e.g., “I despise cocker spaniels”) that might disturb some sensitive souls in a polling place? The Supreme Court can try to enunciate what is unimaginable – clear standards concerning every conceivable language use in a hypersensitive America. Or the court can give its squint of strict scrutiny to all such polling-place laws, many of which will not pass muster. Otherwise, polling-place officials will have broad discretion to lay down the law, if it can be dignified as law, on an ad hoc basis concerning what is and is not a “recognizable” political view or “undue” influence.
The First Amendment was ratified in 1791. One hundred and twenty-eight years passed before the court confronted a case – three cases, actually – squarely concerning freedom of speech. Dealing disgracefully with residues of Woodrow Wilson’s wartime semi-totalitarianism, the court held: During wartime, the government can restrict speech that could “create a clear and present danger” of evils that Congress has the power to prevent. And the guarantee of free speech does not protect printing leaflets urging disruption of the war effort. And Wilson’s administration did not violate the amendment when it imprisoned Eugene Victor Debs – he had received 6 percent of presidential vote as the Socialist Party’s candidate in 1912 – because he made an anti-war speech.
Nowadays, the court frequently adjudicates speech controversies because governments eagerly embrace sinister rationalizations for “balancing” free speech against competing values, to the detriment of free speech. Hence the court should affirm Cilek’s admirably prickly resistance to Minnesota’s officiousness. Today more than ever, with freedom of expression increasingly threatened, an American’s default position regarding restrictions should be: Don’t tread on me.
George Will’s email address is [email protected] © 2018, Washington Post Writers Group.