George F. Will: Don't tread on this voter's T-shirt
The question the U.S. Supreme Court will consider today is whether the expressive shirt that Andrew Cilek wore when he went out to vote in Minneapolis on Nov. 2, 2010, 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 “Don't Tread on Me” flag 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 seems to mandate a First-Amendment-free zone, which Cilek says is unconstitutionally overbroad. Minnesota has admitted that its law also would forbid apparel bearing the logo of, for example, the AFL-CIO, which does indeed have “recognizable political views.” These might “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 as furthering Minnesota's legitimate interest in polling-place “peace, order and decorum,” “the integrity of its election process” and protecting voters “from confusion and undue influence.” 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 very broadly defined political allegiances not associated with any person or issue being voted on.
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.
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 F. Will is a columnist for Newsweek and The Washington Post.