Free Elections and (Sort Of) Free Speech

November 2, 2008

Think free elections leave room for absolute freedom of speech in Minnesota?  Think again.

Yesterday I mentioned Chapter 211B of Minnesota Statutes and encouraged anyone who cares about free speech to take a look.  A look will reveal that the statutes, most of which date to 1988, impose a variety of restrictions on who can say what in various “campaign materials.”  Dear blog reader, the statutes are in dire need of a tuneup.  Read on.

The very first section of Chapter 211B contains a definition that is oh so, well, 1988.  The section defines “campaign material” as “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, except for news items or editorial comments by the news media.”  So the restrictions apply to yard signs, brochures, direct mailings, podcasts, and probably my blog and others with a thousand times more readers, but not the Duluth News Tribune or KARE-TV.

Another stale exception is in section 211B.06, which makes it a crime to intentionally prepare or disseminate campaign materials known to be false unless you happen to be a “person or organization whose sole act is, in the normal course of their business, the printing, manufacturing, or dissemination of the false information.”  Printing?  Really?

And then there’s this one, in section 211B.11: “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”  My guess is that the violators will number in the thousands on Tuesday.  Maybe the tens of thousands.  Break out the bread and water, because according to section 211B.16:  “A county attorney may prosecute any violation of this chapter.”

Just last year the Minnesota Court of Appeals upheld parts of Chapter 211B under the First Amendment on the theory that, in the court’s words, “the liberty of speech is not an absolute right” and that “a state’s police power permits a state to punish an abuse of the freedom of speech.”  The authority for those statements was the landmark case of Near v. Minnesota, one of the most important free-speech cases from all time.  Trouble is, the case is a landmark because it marked the first time ever that the United States Supreme Court struck down a state law — a Minnesota law — that restricted speech.

Near v. Minnesota does not provide support for a law that makes it a crime to wear a button at a polling place.  Anything but.  And it is time for the Minnesota Legislature to recognize that voters are not reliant on Big Media anymore.

Chapter 211B says these signs (on my block) can be up from August 1 until 10 days after the election.  But after that, the City of St. Paul could order that the come down.  (Photo by Steven P. Aggergaard)

Chapter 211B says these signs (on my block) can be up from August 1 until 10 days after the election. But after that, the City of St. Paul could order that they come down. (Photo by Steven P. Aggergaard)

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