## Facts

- New Hampshire amended N.H. Rev. Stat. Ann. § 659:35 to add subsection I, prohibiting any voter from photographing a marked ballot and sharing the image by any means, including social media.
- A violation carried a potential civil penalty of up to a $1,000 fine.
- The legislature justified the ban as a measure to prevent vote buying and voter intimidation/coercion.
- The plaintiffs, New Hampshire voters (including a state representative), wished to take and share photos of their completed ballots to communicate political views.
- After the amendment, the plaintiffs photographed and shared images of their marked ballots; the state initiated or threatened enforcement, prompting the lawsuit.
- The state conceded that the last verified instance of vote buying in New Hampshire occurred in the 1800s.

## Issues

1. Whether the ballot-selfie ban is a content-based restriction on speech under the First Amendment.
2. Whether the ban survives constitutional scrutiny given the state’s asserted interests in preventing vote buying and voter intimidation/coercion.

## Decision

- The First Circuit affirmed summary judgment for the plaintiffs and held the statute facially unconstitutional.
- The court found the law content-based because it prohibited only images of a particular subject matter—marked ballots—requiring examination of an image’s content for enforcement.
- The court declined to decide whether strict scrutiny applied because the statute failed even intermediate scrutiny.
- Although preventing vote buying and voter coercion is an important (even compelling) governmental interest, the state did not show a meaningful evidentiary link between ballot selfies and those harms.
- The ban burdened substantially more political speech than necessary, particularly given existing, more targeted criminal laws addressing bribery, intimidation, and undue influence in elections.
- Enforcement of the statute was enjoined.

## Legal Principles

- A regulation is content-based when it targets speech by subject matter and requires reviewing the content of expression to determine whether it applies.
- Photographs shared to convey political choices and commentary are protected expressive activity at the core of the First Amendment.
- Under intermediate scrutiny, the government must show that a restriction on speech is narrowly tailored to serve a significant governmental interest and does not burden substantially more speech than necessary.
- A broadly prophylactic speech restriction may fail scrutiny where the government offers little evidence of a concrete problem and has alternative, targeted enforcement tools.
- A statute may be invalidated on its face when its ordinary operation sweeps in substantial protected speech and fails applicable scrutiny standards.

## Conclusion

The First Circuit held New Hampshire’s prohibition on photographing and sharing marked ballots was a content-based restriction that suppressed core political expression and, lacking adequate tailoring and evidentiary support, was facially invalid under the First Amendment.


Rideout v. Gardner, 838 F.3d 65 (1st Cir. 2016)