By Richard L. Hasen, professor at UCLA School of Law
The First Amendment’s free speech clause grants a lot of protection for false and odious speech. It also protects freedom of association. So if a group of people want to get together to protest the results of the 2020 election and falsely claim that Donald J. Trump won that election over Joe Biden, that is their right. Depending on the state, they may even have the right to do so openly carrying firearms. What they don’t have the right to do is to interfere with others’ constitutionally protected voting rights, such as by standing around ballot drop boxes in military gear with weapons intimidating voters against casting their ballots.
First Amendment rights do not extend to threats of violence and voter intimidation.
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Yet, citing the First Amendment, a federal judge in Arizona last week refused to grant a preliminary injunction that would have stopped the groups of people carrying out these menacing activities in Maricopa and Yavapai counties as voters participate in the midterm election. The Ninth Circuit court of appeals is currently considering an emergency request for an order to overturn that decision and put the injunction in place. The court should grant it and protect the right to vote, recognizing that First Amendment rights do not extend to threats of violence and voter intimidation.
Since Trump fanned the false flames of voter fraud during the 2020 presidential election, conspiracies about mail-in balloting have continued to grow. A great deal of the attention has been on ballot drop boxes. These are like mailboxes that are set up by election officials in order to collect absentee ballots directly rather than having the ballots delivered through the U.S. postal service. The use of drop boxes increased dramatically during the 2020 election cycle, when many voters who feared contracting Covid-19 at a polling place chose instead to vote by absentee ballot.
There has been no indication of any widespread fraud through the use of ballot drop boxes. Nonetheless, conspiracy theories about the drop boxes have continued to circulate, fueled in part by a widely debunked film by Dinesh D’Souza, “2000 Mules,” which uses false and unproven claims to try to show drop boxes being used for fraud. Reporting by NBC News shows that ballot drop box conspiracies have flooded Trump’s social media website, Truth Social, and that has led to organizing on the ground, including in places like Arizona.
As The Associated Press reported, “Local and federal law enforcement have been alarmed by reports of people, including some who were masked and armed, watching 24-hour ballot boxes.” The article noted that “some voters have complained alleging voter intimidation after people watching the boxes took photos and videos, and followed voters.”
These reports led to two suits in federal court brought by voting rights groups. The suit currently on emergency appeal against the organizers of these drop box watchers argued that the masked and armed monitors violate a provision of the Voting Rights Act protecting against voter intimidation. The suit also claims they’re transgressing the Ku Klux Klan Act, which protects against violations of the rights of equal protection guaranteed by the Fourteenth Amendment, including intimidation against voting.
Federal district court judge Michael Lubridi, nominated to the bench by Trump, barely mentioned the fact that the protesters were armed in his refusal to grant the injunction on First Amendment grounds in the first case, though he told the plaintiffs to come back if they had more evidence of voter intimidation.
As the plaintiffs’ Ninth Circuit motion suggests, there is already plenty of evidence of such intimidation: There have been “at least seven voter intimidation complaints filed with Arizona’s secretary of state and multiple reports by voters describing armed individuals, sometimes masked and in tactical gear, surveilling drop boxes in the dark of night.” The motion also states that “state officials have sought help from federal law enforcement,” have described these intimidation teams as “vigilantes” and have expressed “deep” concern about the safety of individuals lawfully taking their early ballots to a drop box.
The suit seeks very broad relief “prohibiting Defendants from gathering within sight of drop boxes; from following, taking photos of, or otherwise recording voters or prospective voters, those assisting voters or prospective voters, or their vehicles at or around a drop box; and from training, organizing, or directing others to do those activities.”
The other suit, led by the League of Women Voters, seeks narrower relief targeted at specific intimidation tactics of the drop box watchers. It is still in front of a trial court. One analysis by University of Iowa College of Law professor Derek T. Muller predicts that the league is more likely to succeed given that it asks for more pinpointed relief targeted at “specific components of Defendants’ operation, which include time-tested and highly effective methods of voter intimidation,” including “spreading specific false information about voting and voters,” “threatening and harassing ‘monitoring’ of voter behavior” and “false public accusations of voter fraud and disclosure of personal information (‘doxing’).”
The cases present the latest clash in a society committed to both wide-open and robust political debate and free and fair elections. Although balancing free speech rights with the right to vote might be difficult in some other cases, it is not a close call here. The Arizona ballot box monitors are not simply people taking pictures of those dropping off ballots; instead, photos show armed persons in tactical gear standing where people are trying to vote. Many of us would turn around when seeing what appear to be armed vigilantes waiting in any location. In this situation, that would mean not voting, a clear demonstration of voter interference.
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Even Eugene Volokh — a prominent professor who appears to support the rights of protesters to videotape others at drop boxes — expressed surprise that Lubridi did not consider more fully whether the fact that the protesters were armed changed the constitutional balance in favor of restricting their actions.
Volokh pointed to an earlier Supreme Court decision in NAACP v. Claiborne Hardware holding that the NAACP had a First Amendment right to engage in boycotts of white-owned stores that it said discriminated against African Americans, even when there was violence and threats of violence by some racial justice protesters against Black shoppers who would enter the stores. The court held that an injunction could not apply to constitutionally protected rights to boycott or protest, recognizing that an injunction is appropriate only against “unlawful conduct” like engaging in violent acts or threatening violence. The court flatly declared that “The First Amendment does not protect violence.”
Many of us would turn around when seeing what appear to be armed vigilantes waiting in any location. In this situation, that would mean not voting, a clear demonstration of voter interference.
As applied to this case, Claiborne Hardware means that people can protest against the use of drop boxes based upon their (wrong) belief that they are regularly used to facilitate election fraud. But an injunction is appropriate against unlawful conduct such as ballot watchers donning tactical gear and weapons that intimidate voters.
Further, as the United States Department of Justice noted in a filing in the district court the League of Women Voters case, “protecting voters’ right to cast their ballot without the specter of threats, intimidation, or coercion is fully consistent with appropriately crafted limitations on private actors’ conduct” under the First Amendment.
Violence and threats of violence in society are very worrisome. Political violence, as we recently saw against Paul Pelosi, the spouse of Speaker of the House Nancy Pelosi, D-Calif., and the 2017 attack on then-House Majority Whip Steve Scalise, R-La., is especially dangerous because it threatens not just physical harm but also the right to live in a free society where voting and public service are safe occupations. When people are intimidated out of voting or serving in office, it is a loss not just for them; our whole society suffers.
Source: NBC News