As political journalists get ready to stake out the nation's polling places this November to interview voters, they can no longer be sure that the Constitution will continue to protect that kind of news-gathering. For the first time the U.S. Supreme Court has raised some doubts.
Because of a series of lower court rulings, the press has presumed that the First Amendment would assure that reporters could get near enough to polling places to interview people after they vote. But a recent 5-3 decision by the Supreme Court undercuts that assurance, at least temporarily.
The court has not yet ruled directly on a case that tests the constitutionality of limits on reporter or camera access to sidewalks or streets near polling places. But its ruling in a Tennessee "campaign-free zone" case is not a promising signal.
The court upheld a Tennessee law barring campaigning within 100 feet of the entrance to any polling place in that state. The law specifically bans displaying campaign posters, signs or other campaign material, handing out campaign fliers or other printed material, and soliciting votes – presumably by sample ballot or other devices aimed at swaying voters.
It is clear that a 100-foot campaign-free zone would make it difficult, at best, to reach voters. But making it difficult to reach them was precisely what led the state of Tennessee to create such a zone. And now the Supreme Court has said it is free to do so.
"The State of Tennessee," the majority declared in the case of Burson vs. Freeman, "has decided that these last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible. We do not find that this is an unconstitutional choice."
It would not make sense for the press to read that kind of judicial language too literally. While the court was talking only about a specific law banning politicking near the polls, the constitutional value upon which it relied – the virtue of preserving tranquility near the voting booth – might also justify keeping the press from asking citizens in the same area how they voted and why.
And while the court was talking only about a state's desire to protect voters as they enter the polling place, there is no reason to think that the court believes a state could police contacts with voters on the way in but not on the way out.
How would a campaign-free zone be kept clear to protect entering voters while allowing the press to contact only those departing? Would each interview be monitored by a police officer? It is important to keep in mind, in analyzing this particular decision and what it may portend, that the court has long treated "political speech" as the expression with the highest value to American society – and thus entitled to the most protection under the First Amendment. But in the interest of protecting voters on the way to the polling place, the court has now allowed political speech to be shut out completely – at least within a special tranquil zone. That seems clearly to be a form of territorial censorship.
There is no basis for thinking that the court would regard the free expression rights of the press as more valuable than political speech. Indeed, one would think that the court would be embarrassed to rule that the press has rights greater than those of political operatives trying to persuade the voters.
Justice John Paul Stevens, writing for the dissenters, pointed to a series of recent lower court rulings that provided specific constitutional protection for exit polling by the press near voting booths. Those decisions struck down free zones which kept the press at a distance from polling places. Those limits, the Stevens opinion noted, were found to be aimed at the "suppression of expression."
No press lawyer can now say with confidence that those lower court decisions provide any assurance about what the Supreme Court would do in a case involving restrictions on exit polling. And no press lobbyist can now say with any assurance that politicians – who tend not to like exit polling anyway – won't be tempted to test the issue by passing a new law banning it.
As politicians see it, exit polling is a nuisance not because it upsets the voters but because it allows the press to predict election outcomes. By picking out "bellwether" precincts and doing interviews at each one, the press can get enough trend data to forecast results.
Press competition to be first with a prediction may mean that likely winners are known before some voters leave home for the polling place. Supposedly, that devalues the ballots of late voters, puts a premium on early voting and turns off the electorate by fostering a "what's-the-use" attitude.
Politicians would invite constitutional trouble if they persuaded legislatures to put limits on press activity near polling places. But the Supreme Court's ruling in the Tennessee case suggests an alternative: passing laws to ban everyone but voters from the "free zone" around the polls. l