The First Amendment and voter supression

Restrictions on freedom of expression guaranteed by the First Amendment must clear a high bar before they can be implemented. The latest laudable example of this is the Supreme Court's June 28 decision (.pdf) to strike down the Stolen Valor Act, which would have made it a crime to falsely claim receipt of military decorations or medals.

Neither the justices nor even the attorney of the man charged under the act, Xavier Alvarez, argued for falsehoods in the context of military honors or any context. First amendment cases often require the defense of liars and other repugnant outliers (neo-Nazis wanting to march in a Jewish neighborhood probably being the most famous example).

With the recent Alvarez ruling in mind, let's look at a proposal sponsored by Sen. Chuck Schumer (D-N.Y.) that would make it a crime to intentionally mislead voters 90 days before an election about the time and place of an election, about restrictions on voter eligibility to participate in an election, and a civil offense to make a knowing and misleading statement regarding endorsements, also 90 days before an election.

Such measures are necessary, say advocates--who include the level-headed Sen. Patrick Leahy (D-Vt.)--due to the increase in deceptive voter suppression practices primarily targeted against minority populations. A typical example cited by supporters is an incident in the 2006 midterm election in which some Virginia voters received automated phone messages falsely warning them that the ''Virginia Elections Commission'' had determined they were ineligible to vote.

Opponents say the proposal would have a chilling effect on freedom expression, which goes to one reason why the Supreme Court overturned the Stolen Valor Act.

"Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power," wrote Justice Anthony Kennedy for himself and three colleagues, including Chief Justice John Roberts. "The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom," he added.

In order to pass First Amendment muster, in other words, the speech that would be proscribed by Schumer's proposal could not just be false. Using reasons cited by Kennedy for throwing out Stolen Valor, the proposal would probably need a "clear limiting principle" a "direct causal link between the restriction imposed and the injury to be prevented," and a demonstration why lesser measures, such as counterspeech would not suffice.

A reasonable person could probably agree that false information about endorsements, whether intentional or not, could be fought with counterspeech. In any case, false information about endorsements doesn't go to the heart of the problem, which is deceptive practices made with the intent to suppress voter turnout, since it's possible to vote one's conscience even while in the possession of false information about endorsements.

Moreover, federal restrictions on information about political endorsements comes really close to regulating political speech, despite the fact that a civil action could be brought against someone who spreads false endorsement information knowingly and with intent to deceive voters. Let's call that part of the bill a bad idea and hope it gets rewritten out.

The sections regarding the knowing distribution of false election information with intent to deceive, however, appear to pass Kennedy's tests. There is a clear causal link between the knowing distribution of false information about voter eligibility and time and place of elections and voter repression: The first is meant to result in the second. These restrictions are also limited, although the so-far undiscussed private right of action right under the proposal could undermine that.

By granting private citizens the right to sue for relief under the act, the bill would, as critics say, indeed open the door to chicanery by using the courts as a weapon against an opponent's campaign. Minus that private right of action, however, the proposal appears to propose clear and bounded restrictions on a particularly malevolent bit of political trickery that's been adopted by those with a win-at-any-cost mentality.

The Schumer proposal isn't ripe for endorsement by those who particularly like the First Amendment, but it shows promise. - Dave