Expect To See Exit Pollsters

October 31, 2008

The election is nearing, as will be the exit pollsters.

Federal Judge Michael Davis has issued his decision in the “Election Law, Meet First Amendment” case I blogged about a few weeks ago, and it was a complete win for Big Media.

The judge wielded the First Amendment to invalidate a Minnesota a law that made it a crime for exit pollsters, or anyone else for that matter, to stand within 100 feet of a building where polling is taking place.  A bunch of news outlets sued the State of Minnesota, which defended against the lawsuit by claiming that government has a compelling interest in preventing disruptions and overcrowding at the polls.  The judge disagreed 100 percent.  Noting the “paramount importance of free political speech,” Davis issued a preliminary injunction based on his conclusion that the law was not narrowly tailored to the goverment’s interest in preventing chaos.  There simply was no evidence, said the judge, that exit polling “in any way has a detrimental effect on the orderly and corruption-free polling place.”

Technically, the lawsuit is still alive because Judge Davis’ preliminary injunction was just that, preliminary.  But the judge’s decision is as thorough as it is legally solid, so my guess is that the law is caput.

Still, as I blogged about previously, the issue is a toughie.  While speech is sacrosanct, acts are not.  In other words, all Minnesotans, media or otherwise, should have the right to say pretty much whatever they want to say and should not be unreasonably hindered from asking questions and otherwise collecting information that will lead ot expression.  But actions that get in the way of balloting cannot stand.   It’s a classic balancing act, of the type that makes constitutional law fun.  As the judge wrote:

The public has a fundamental interest in unfettered debate of public issues and governmental affairs.  As Defendants note, the public also has an interest in a fair and orderly election, and there is no reason to believe that this injunction will interfere with that interest.  The public interest weighs in favor of granting the injunction.

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