I was recently contacted by a reporter about the New Hampshire ballot seflie law court case and unfortunately I was not able to get back to the reporter before the article's deadline. I first recall speaking with the media in 2012 about ballot selfies and at that time it was an activity that seemed ready to dramatically increase.
During the past several years, ballot selfie legal issues have picked up steam because some states have enacted laws focused on banning the practice. Laws and regulations that ban videos/photos during certain court proceedings and in polling places were enacted due to legitimate personal safety and privacy concerns. While I am a huge proponent of the First Amendment and frown on undue burdens that limit on speech rights, I am also a believer in strong privacy protections.
Once one is inside the polling area, they should feel confident that their decision to vote will not be broadcast to the public. In 2012, I told ABC News, "[p]eople should feel free to exercise their constitutional right to vote without fear that their votes may be captured and posted online for the entire world to see...Therefore, it is good public policy to restrict the use of cameras and/or video in a public polling area." While many state laws limiting photos/videos in polling places were enacted well before selfies become in vogue, these laws are generally technology neutral and apply to all still photos/video recordings.
I am sure we can find a solution that would allow people to prove to others (online and in the real world) whom they voted for without encroaching on the personal privacy and safety of other voters. I don't believe it would make good public policy to allow for the widespread use of cameras in a polling place because the rise of facial recognition and other biometric technologies raises serious personal privacy and public safety concerns. For example, if polling places started to allow for unfettered taping inside a polling station, the entire world may know whom you voted for based upon any stickers or candidate material you are holding before/after your vote.
Several years ago, a Deputy Sheriff in Hampton Virginia was fired along with several colleagues for "liking" a Facebook page of a political candidate (who was running against his boss and eventually lost). A federal appeals court ultimately ruled that a "Facebook Like" is constitutionally protected free speech; however, this did not change the fact that the Facebook Like dramatically changed the professional careers (and personal lives) of those who were fired for exercising their free speech rights.
In general, I don't recommend posting one's personal ballot online or discussing whom one voted for regardless of the law. Potential employers, marketers, insurers, data brokers, governments, etc... are watching and your vote/political leanings may negatively penalize your career and/or personal life. People should have the right to post whom they voted for online; however, we may need to think of a creative mechanism to allow for ballot selfies while at the same time protect the personal privacy and safety of others in the voting area.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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