Snapping a quick selfie after casting your vote is an increasingly popular practice. It’s also illegal in most states.
Though there is no federal law prohibiting the so-called “ballot selfie,” photographing ballots is illegal in 35 states. There are no express bans on ballot selfies in many of these jurisdictions, but it stands to reason that the practice is captured by the existing ban on photographing votes.
Specifics of the restrictions vary with the state; where some laws are narrowly tailored, others ban photography of any kind inside a voting precinct. The Digital Media Law Project has compiled a dataset on state laws governing ballot documentation, which was accurate as of the last election.
Snapchat has taken up common cause with those battling the restrictions, arguing that the practice, popular with many of its users, is a constitutionally-protected First Amendment activity. The social media platform joined litigation challenging a New Hampshire law which forbids voters from revealing their ballot to another with the intent of disclosing how they voted.
“This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means,” the law reads.
Snapchat filed an amicus, or “friend of the court,” brief urging the 1st U.S. Circuit Court of Appeals to affirm a district court ruling striking down the law. Snapchat is represented by its own in-house counsel and by Hogan Lovells partner Neal Kumar Katyal.
One of the nation’s leading appellate advocates, Katyal chairs the white shoe firm’s appellate practice and served as acting Solicitor General after Elena Kagan’s appointment to the U.S. Supreme Court. (RELATED: Iran Arrests 450 Snapchat and Instagram Users For Crimes Against Fashion)
“Whether it’s a campaign button or a selfie from the ballot box, Snapchat believes that expressing participation in the democratic process is an important part of free speech and civic engagement that the First Amendment roundly protects,” a Snapchat spokesperson told The Daily Caller News Foundation.
Snapchat makes two fairly straightforward arguments in its brief: Selfies with ballots are core First Amendment exercises; that the company itself is a news-gathering platform with an interest in sharing user content.
“These sorts of messages are core political speech,” the company argues in its brief. “And ballot selfies convey voters’ messages in a way that no other form of communication can.”
The company also argues it’s a news gathering organization with a protected First Amendment interest in sharing user-generated content through its “Stories” feature, which is tailored to specific events, holidays, or locations and disseminates user images pertaining to the same.
“By sharing the outpouring of civic pride that comes with Election Day, including ballot selfies, the media encourages others to participate. And by exercising its First Amendment right to publish ballot selfies, the media becomes a ‘surrogate for the public’ in monitoring and promoting elections and the electoral process,” the company writes, citing Leigh v. Salazar, a case from the 9th U.S. Circuit Court of Appeals, which applied the qualified right of access balancing test against all government activity.
The company goes on to argue the Stories feature is essential media watchdog activity, as it can document and publicize irregular or unlawful voting practices.
For its part, New Hampshire argues that the statute prevents coercion, vote selling, and ensures the integrity of the ballot box.
The case will be heard by the First Circuit in Boston on Sept. 13.
Send tips to kevin@dailycallernewsfoundation.org.
All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.