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Burson v. Freeman

Supreme Court of the United States · 1992 · Constitutional Law

Constitutional LawFirst AmendmentElection lawPolitical speechPublic forum doctrineFirst Amendmentpolitical speechpublic forum

Facts

Tennessee election law prohibited, within 100 feet of the entrance to a polling place and inside the building, the display of campaign posters, signs, or other campaign materials, the distribution of campaign materials, and the solicitation of votes for or against any candidate, party, or ballot position. Violation was a misdemeanor. Freeman, an active Tennessee campaign participant and former campaign treasurer, brought a facial challenge claiming the law limited her ability to communicate with voters. The restriction applied specifically to campaign-related expression near polling places on election day.

Issue

Whether Tennessee's prohibition on solicitation of votes and display or distribution of campaign materials within 100 feet of the entrance to a polling place violates the First and Fourteenth Amendments. More specifically, the question was whether this content-based restriction on political speech in a public forum could survive strict scrutiny.

Rule

A facially content-based restriction on political speech in a public forum must satisfy exacting scrutiny: the State must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. In the election context, a State may establish some restricted zone around polling places when necessary to protect voters from intimidation and election fraud, and a 100-foot boundary is constitutionally permissible.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

On election day in Columbus, Ohio, state law bars anyone within 80 feet of a polling-place entrance from urging support for or opposition to any candidate or ballot measure, while still allowing people in that area to hand out coupons for local restaurants and solicit donations for charities. Priya Desai wants to distribute candidate flyers on the public sidewalk 40 feet from the entrance and brings a facial First Amendment challenge.

Which is the strongest constitutional analysis of the statute?

Explanation. The majority treated restrictions on campaign advocacy near polling places as content based because whether speech is allowed depends entirely on whether it relates to a political campaign. Because the speech is political and occurs in a quintessential public forum such as a sidewalk, exacting scrutiny applies: the State must show the restriction is necessary to serve a compelling interest and is narrowly drawn.