LEON H. RIDEOUT, ANDREW LANGLOIS, BRANDON D. ROSS, Plaintiffs, Appellees,
WILLIAM M. GARDNER, in his official capacity as Secretary of State of the State of New Hampshire, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE Hon. Paul J. Barbadoro, U.S. District Judge
Stephen G. LaBonte, Assistant Attorney General, with whom
Joseph A. Foster, New Hampshire Attorney General, and Laura
E. B. Lombardi, Senior Assistant Attorney General, were on
brief, for appellant.
R. Bissonnette, with whom American Civil Liberties Union of
New Hampshire, William E. Christie, and Shaheen & Gordon,
P.A. were on brief, for appellees.
Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School,
Justin Silverman, and Andrew F. Sellars on brief for The New
England First Amendment Coalition and The Keene Sentinel,
Volokh and Scott & Cyan Banister First Amendment Clinic,
UCLA School of Law on brief for the Reporters Committee for
Freedom of the Press, amicus curiae.
Kumar Katyal, Sean Marotta, Hogan Lovells U.S. LLP,
Christopher T. Handman, and Dominic F. Perella on brief for
Snapchat, Inc., amicus curiae.
Lynch, Lipez, and Thompson, Circuit Judges.
2014, New Hampshire amended a statute meant to avoid vote
buying and voter intimidation by newly forbidding citizens
from photographing their marked ballots and publicizing such
photographs. While the photographs need not show the voter,
they often do and are commonly referred to as "ballot
selfies." The statute imposes a fine of up to $1, 000
for a violation of the prohibition. See N.H. Rev.
Stat. Ann. § 659:35, IV; id. § 651:2,
New Hampshire citizens who are under investigation for
violation of the revised statute, and who are represented by
the American Civil Liberties Union of New Hampshire,
challenged the statute's constitutionality. The district
court held that the statute is a content-based restriction of
speech that on its face violates the First Amendment.
Rideout v. Gardner, 123 F.Supp.3d
218, 221 (D.N.H. 2015). The New Hampshire Secretary of State
appeals, arguing that the statute is justified as a
prophylactic measure to prevent new technology from
facilitating future vote buying and voter coercion. We affirm
on the narrower ground that the statute as amended fails to
meet the test for intermediate scrutiny under the First
Amendment and that the statute's purposes cannot justify
the restrictions it imposes on speech.
late nineteenth century, political parties, unions, and other
organizations had the power to print their own ballots, each
of which was easily identifiable and distinguishable from
other ballots by size and color. This practice allowed the
ballot-printing organizations to observe how individuals
voted at the polls, which in turn created an obviously
coercive environment. During this period, New Hampshire
undertook a series of reforms to combat widespread vote
buying and voter intimidation. In 1891, the State passed
legislation requiring the Secretary of State to prepare
ballots for state and federal elections. 1891 N.H. Laws ch.
49, § 10. The State then passed a statute to forbid any
voter from "allow[ing] his ballot to be seen by any
person, with the intention of letting it be known how he is
about to vote." 1911 N.H. Laws ch. 102, § 2.
at least 1979, that provision has been codified in relevant
part at section 659:35, I, which, until 2014, read: "No
voter shall allow his ballot to be seen by any person with
the intention of letting it be known how he is about to vote
except as provided in RSA 659:20." The exception in
section 659:20 allows voters who need assistance marking a
ballot to receive such assistance. N.H. Rev. Stat. Ann.
§ 659:20. In 2014, the New Hampshire legislature revised
section 659:35, I as follows:
No voter shall allow his or her ballot to be seen by
any person with the intention of letting it be known how he
or she is about to vote or how he or she has
voted except as provided in RSA 659:20. This
prohibition shall include taking a digital image or
photograph of his or her marked ballot and distributing or
sharing the image via social media or by any other
Id. § 659:35, I (revisions underlined). The
penalty for a violation of the statute is a fine of up to $1,
000. Id. § 659:35, IV; id. §
original version of HB366, the bill amending section 659:35,
I, provided that "[n]o voter shall take a photograph or
a digital image of his or her marked ballot, " and was
introduced by State Representative Timothy Horrigan on
January 3, 2013. Horrigan stated that "[t]he main reason
this bill is necessary is to prevent situations where a voter
could be coerced into posting proof that he or she voted a
particular way." The bill started at the House Committee
on Election Law, which recommended its passage, and the
members of which expressed rationales for the bill similar to
bill then went to the House Committee on Criminal Justice and
Public Safety. Deputy Secretary of State David Scanlan spoke
in support of the bill, emphasizing the need to prevent vote
buying and to protect the "privacy of [the]
ballot." Though a majority of the members of the
Criminal Justice Committee supported the bill, a minority
disagreed and filed a report concluding that the bill was
"an intrusion on free speech." In order to restrict
the bill's scope to activity connected to vote buying,
the minority suggested amending the bill as follows:
This prohibition shall include taking a digital image or
photograph of his or her marked ballot and distributing or
sharing the image via social media or by any other means
only if the distribution or sharing is for the purpose of
receiving pecuniary benefit, as defined in RSA 640:2, II(c),
or avoiding harm, as defined in RSA 640:3.
majority of the Criminal Justice Committee did not support
this amendment, however, and HB366, absent the proposed
limitation, proceeded to the full House of Representatives,
which passed it by a vote of 198-96. The bill was then
introduced to the Senate Committee on Public and Municipal
Affairs, which recommended the bill to the full Senate. ...