MAGA Hats Aren’t the Problem at Polls. Government Banning Speech Is.

COMMENTARY Government Regulation

MAGA Hats Aren’t the Problem at Polls. Government Banning Speech Is.

Jan 29th, 2018
COMMENTARY BY
Elizabeth Slattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.
A Donald Trump supporter wears a "Make America Great Again" hat at a 2016 NRA gathering in Louisville, Kentucky. Jeremy Hogan/Polaris/Newscom

Key Takeaways

States do not have a legitimate interest in stamping out speech on clothing because it might “trigger” a sensitive snowflake at the polls.

Minnesota’s law is overbroad and places too much discretion in the hands of poll workers.

Political speech is “central to the First Amendment’s meaning and purpose,” and the Supreme Court should side with Cilek and his Gadsden flag T-shirt.

States do not have a legitimate interest in stamping out speech on clothing because it might “trigger” a sensitive snowflake at the polls.

In Minnesota Voters Alliance v. Mansky, the Supreme Court will decide whether the First Amendment allows states to severely limit free speech on clothing at the polls because it might be construed as political.

Elie Mystal, writing Jan. 24 at Above the Law, claims that that’s essential to Minnesota preventing intimidation at the polls, but a quick look reveals that Minnesota has other laws prohibiting campaigning within 100 feet of the polls, or threatening, bribing, or otherwise harassing voters.

Those laws advance the state’s legitimate interests in preventing intimidation and violence at the polls and in ensuring the integrity of its elections. But Minnesota lacks constitutional authority to transform polling places into “safe spaces” free from anything that could be construed as political speech.

Mystal writes, “The Heritage Foundation forgets that people who are now on their side have a history of murdering minorities who try to vote where they are not supposed to.” This guilt-by-association charge is strange, to say the least.

Our nation, unfortunately, has an ugly history of race relations, and there certainly have been instances of horrific violence and intimidation surrounding polling places. Luckily, that behavior is a thing of the past, and a ruling for the Minnesota Voters Alliance won’t open up the floodgates of threats, coercion, and intimidation of voters.

Mystal disagrees, saying it would result in “a sea of MAGA hat wearers brandishing nooses” at the polls. He even goes so far as to equate “Make America Great Again” hats with a T-shirt that says “I would murder you if I could.”

That’s ridiculous, especially since broad clothing bans do not exist in most states and yet this type of intimidation-by-clothing has not occurred.

Moreover, state and federal laws that ban intimidation, harassment, threats of violence, and actual violence already cover behavior that is, in fact, intimidating.

It’s also an insult to the millions of Americans who voted for President Donald Trump because they care about limited government, rolling back the administrative state, and the appointment of originalist judges.

MAGA hats aren’t the problem. States banning speech are. The ACLU—which is on the same side as me in this case—explained in its amicus brief supporting the Minnesota Voters Alliance that while some restrictions on speech at the polls may satisfy the exacting scrutiny the First Amendment demands, “this does not give states license to write all-encompassing laws that silence or punish more speech than necessary.”

The ACLU further points out that Minnesota “lacks any valid interest, much less a reasonable or compelling one, in cleansing the polling place of all political expression.” Further, the law “grants sweeping and final discretion to poll workers whose own viewpoints will inevitably influence what they see as ‘political’ or not. A phrase that one person may consider to be innocuous or nonpolitical—like #MeToo—may appear to another to be an overtly political statement.”

“The same goes for someone wearing a Colin Kaepernick jersey or T-shirts depicting pictures of Andrew Jackson, Bob Dylan, Beyonce, [and others].”

Minnesota’s law is overbroad and places too much discretion in the hands of poll workers (who can be as young as 16 or 17 years old) to decide what is political—running the risk of highly selective enforcement.

That brings us to Andrew Cilek, who tried to wear a “Please I.D. Me” button and “Don’t Tread on Me” T-shirt when voting. Poll workers decided those messages fell on the wrong side of the political line.

You don’t have to agree with Cilek’s views to support his right to express them. As Supreme Court Justice Samuel Alito wrote in Matal v. Lee last term, “The proudest boast of our free speech jurisprudence is that we protect freedom to express ‘the thought that we hate.’”

We should favor more speech over government limits on speech.

Fortunately, the Supreme Court has been generally protective of speech in recent decades—even when that speech might not be popular—ruling in favor of the Slants’ bid to trademark their band’s name (which the Patent and Trademark Office deemed “offensive”) and upholding cross-burning, animal “crush” videos, violent video games, lying about military honors, and the Westboro Baptist Church protesting military funerals.

It is one thing for states to limit campaign and election-related speech at polling places—overt messages such as “Vote for Bob.” That’s common sense and a limit on the First Amendment that ensures the impartiality of the voting environment.

But it is quite another thing to ban a button that supports voter I.D., abortion, or any other issue, as opposed to a candidate, or a T-shirt depicting the historical Gadsden flag. It shows how over-broad and unconstitutionally restrictive the Minnesota law is.

Political speech is “central to the First Amendment’s meaning and purpose,” and the Supreme Court should side with Cilek and his Gadsden flag T-shirt.

If Mystal has a problem with that freedom, he should consider the fact that he exercised his First Amendment rights when he called me a “hypocritical racist” and defender of Nazis.

What Mystal wrote about me is offensive, mean-spirited, and has no place in what should be a civil discussion about an important legal issue, but I’m not asking for his speech to be banned.

This piece originally appeared in the Daily Signal