Vagueness And Free Speech: Amicus Curiae Brief In Support Of Minnesota Voters Alliance.pdf

# Amicus Curiae Brief of the Institute for Free Speech

## In Support of Petitioners

I. Interest of Amicus Curiae:

The Institute for Free Speech (IFS) is a non-profit, non-partisan organization dedicated to promoting and defending free expression in all its forms. IFS submits this amicus curiae brief to advocate for the protection of political speech and to urge this Court to reverse the lower court's decision upholding Minnesota's apparel ban at polling places.

II. Summary of the Argument:

This case raises significant First Amendment issues regarding the constitutionality of a state law prohibiting certain clothing at polling places. The lower courts erred in applying Burson v. Freeman (1992), which addressed electoral fraud and violence, to this case where no such concerns are present. Even if the apparel ban serves legitimate interests, its application here is unconstitutionally vague, violating the right to free speech guaranteed by the First Amendment. This Court should construe the law narrowly to encompass only explicit advocacy for or against a candidate or ballot issue.

III. Argument:

I. Burson v. Freeman Does Not Control Here:

Petitioners challenge Minnesota's prohibition on wearing "political attire" at polling places, arguing that it infringes upon their right to free speech. Respondents rely heavily on Burson v. Freeman, which upheld a similar law based on the state's interest in preventing electoral fraud and political violence. However, Burson is distinguishable and does not control this case.

a. Context Matters: Burson concerned a law prohibiting "any person from wearing or carrying any political badge, sign, or other device" within 100 feet of a polling place, focusing on the potential for electoral fraud and violence. Here, Minnesota's ban is far more restrictive, specifically targeting clothing with political messages. This Court has recognized that different contexts warrant different First Amendment analyses. Ashton v. Kentucky (1966) held that restrictions on speech in schools or government workplaces may be more readily justified than those in public forums. Similarly, the context of a polling place, while a public forum for voting, is distinct from other public spaces due to its critical role in democratic processes.

b. Preventing Violence Is Not a Justification: Burson relied heavily on the state's interest in preventing violence and disorder. However, there is no evidence that political attire at polling places poses a threat of electoral fraud or political violence. The mere presence of such attire does not create "scenes of battle, murder, and sudden death," as suggested by Burson. To the contrary, individuals encountering political speech they oppose are generally capable of responding without resorting to violence. Chaplinsky v. New Hampshire (1942) held that even offensive speech is protected unless it incites immediate lawless action.

II. The Apparel Ban Is Unconstitutionally Vague:

Even if the apparel ban serves a legitimate interest, its application here raises significant vagueness concerns. A statute is unconstitutionally vague if it fails to give individuals fair notice of what conduct is prohibited or if it encourages arbitrary and discriminatory enforcement. Grayned v. City of Rockford (1972) explained that vague laws trap the innocent by "forbidding or proscribing conduct in terms so broad as to give officials unconfined discretion to apply them maliciously or arbitrarily."

Minnesota's apparel ban is overly broad and susceptible to arbitrary enforcement. The term "political attire" is not defined, leading to subjective interpretations. For instance, a voter wearing a T-shirt with a candidate's name could be prohibited while another voter expressing support for an issue through clothing goes unnoticed. This lack of clarity violates the First Amendment by allowing officials to suppress political speech at their discretion.

III. A Narrow Construction Is Necessary:

To avoid the "shoals of vagueness," this Court should construe Minnesota's apparel ban narrowly. Buckley v. Valeo (1976) and subsequent cases have recognized that restrictions on political speech must be carefully tailored to serve compelling state interests. Here, the state has not shown a compelling interest in prohibiting all political attire at polling places.

A more appropriate construction limits the apparel ban to explicit advocacy for or against a candidate or ballot issue. This interpretation aligns with Buckley v. Valeo (1975 D.C. Cir.), which held that restrictions on political speech must be narrowly drawn and "not sweep too broadly." By focusing on direct advocacy, this construction respects the First Amendment while still allowing states to regulate certain forms of political expression that pose a clear threat to election integrity.

IV. Conclusion:

For the foregoing reasons, the Institute for Free Speech urges this Court to reverse the lower court's decision and hold that Minnesota's apparel ban at polling places is unconstitutionally vague and overbroad. This case presents an important opportunity to protect political speech and ensure that democratic processes remain free from unnecessary restrictions.