The First Amendment has had a nice showing in the current election cycle. Almost every day there’s a new debate about whether the flood of threats, misstatements and accusations being bandied about are entitled to protection. So instead of covering all of that here, I say we use the opportunity to take a look at some of the more subtle lessons illustrated by this happy event. For instance:
Voting Attire – Not Protected Speech. Did you know that promoting a political candidate near polling stations can be prohibited by state law? Yes indeed. It’s the crime of electioneering – a lesson learned the hard way by a man in Bulverde, Texas who came to vote wearing a “Basket of Deplorables” t-shirt and pro-Trump hat. He agreed to the monitor’s request to remove his hat, but declined to turn his t-shirt inside out – resulting in his arrest. So if you’re planning to wear your Nasty in the House, Make America Great Again, or Finally Someone with Balls (not sure to which candidate that last one refers) garb to the polls on November 8, I’d recommend putting your lawyer on retainer first.
Bare-Butted Protests Probably Protected, but May Require Permits, Permission or Professionalism. This election cycle has featured a striking amount of debate over whether bare butts have a place in our political dialogue. Really –you missed this trend? A series of naked Trump statues were placed in New York, Seattle, San Francisco, Los Angeles and Cleveland in August. And a Hillary nude (complete with hooves) showed up on a street corner in New York, igniting outrage among passersby. In both cases, authorities concluded that the creators lacked the necessary permits. Not to be topped, an off-duty police officer in Iowa mooned a Clinton campaign sign, leading to an internal investigation on his professionalism. The takeaway? Get permission before baring your bottoms in protest.
Ballot Selfies – The Revolution Is Afoot. Until this week, I couldn’t have imagined a single scenario under which I saw myself giving a constitutional shout-out to Justin Timberlake, but here it is: Last Monday, Timberlake broke Tennessee law by posting on Instagram a picture of himself voting with a message encouraging others to do the same. It turns out that ballot selfies are a misdemeanor-sized no-no punishable by up to 30 days in jail in about a dozen states. Local authorities (perhaps relieved at the thought of Millennials using social media to encourage civic engagement) decided not to pursue charges.
But Books Are Still Banned. Daily Show head writer Daniel Radosh was surprised when his son asked him to sign a permission slip allowing him to read Farenheit 451 in school. What’s this have to do with election 2016? Captain Beaty’s patient explanation about how politicians should deal with the public eerily echoes some of this cycle’s dialogue: “If you don’t want a man unhappy politically, don’t give him two sides to a question to worry him; give him one. Better yet, give him none.” And the idea that a book about censorship could be banned without parental permission? I’ll let Radosh’s note back to his son’s teacher handle that one.
Any great 1A lessons you’ve picked up on from this year’s inspiring experience with the American democratic experiment? Let me know. I’ll write them up!