Regarding the “voices of ordinary citizens,” one of the cases highlighted in John Paul Stevens: An Independent Life is Burson v. Freeman (1992). It’s a relatively obscure case concerning the power of states (Tennessee, in this case) to prohibit electioneering within a certain number of feet of polling places on election day.
You might call this case the flip side of Citizens United v. FEC. The Tennessee Supreme Court had ruled that a 100-foot no-electioneering zone around polling places was a violation of free speech. The state appealed to the Supreme Court. The result was a noteworthy and lengthy (nearly eight months) debate between Justices Scalia and Stevens (with Justice Blackmun in the middle) over tradition in law vs. pragmatism in law.
Stevens is a long-time advocate of virtually unlimited free political speech by “ordinary” Americans. Scalia, taking the side of legal tradition, argued that “restrictions of speech around polling places on election day are as venerable a part of the American tradition as the secret ballot” and therefore do not deserve or require strict scrutiny by the Court under the First Amendment. Scalia was on the side of the majority led by Justice Blackmum, to reverse the Tennessee Supreme Court. But his proposed concurrence – which seemingly granted immunity from strict scrutiny to anything labeled “traditional” -- took the case in a new direction that Blackmun thought was dangerous.
Stevens pointed out that laws limiting access to the polls historically were part of efforts to keep African Americans from voting. His point of view eventually prompted Blackmun to inform Scalia that he opposed the proposition that “a law can pass strict scrutiny because history says it does.” No-electioneering zones tend to favor the “ins” at the expense of the “outs,” Stevens wrote in his dissent. “The hubbub of campaign workers outside the polling place may be a nuisance, but it is also the sound of a vibrant democracy.” — Bill Barnhart
Or unless they want to scream obscenities, and run around naked as well.
Doesn't make the assertion of freedom of speech in electioneering any less valid, just admits where it has constraints.
Posted by: Tom M. | 04/17/2010 at 12:01 PM
well, unless ordinary citizens want to burn flags...
Posted by: Cabbage | 04/09/2010 at 04:07 PM