New Hampshire Voting “Selfie” Law Found Unconstitutional

October 3, 2016

REUTERS/Rick Wilking​

REUTERS/Rick Wilking​

A New Hampshire state law banning “selfies” in the voting booth was found to be unconstitutional.  State legal action restricting selfies, photographs individuals take of themselves using their smartphones, is a reflection of the widespread popularity of smartphones and the extent to which those devices are now active participants in virtually every part of our lives.

New Hampshire enacted the legislation in question ostensibly to protect the integrity of the electoral voting process.  The law imposed a fine of $1000 against individuals who photographed their activity in voting booths.  The New Hampshire state legislature was apparently concerned that selfies showing how individuals voted could threaten the principle of secret ballots.

Matsuura Blakeley BannerThe New Hampshire anti-selfie law was challenged as an unconstitutional infringement on First Amendment free speech rights.  Opponents of the law argued that the Constitution protects the ability of individuals to take photographs of themselves and to distribute those photos as they see fit.  The federal district court determined that the law was unconstitutional.  On appeal, a three judge panel of the First Circuit unanimously affirmed the district court ruling.

It seems that both the district court and the First Circuit panel recognized the ubiquitous nature of selfies in today’s society.  With smartphones virtually everywhere, we now live in a world in which nearly every form of human activity is documented through photographs.  Widespread digital network access serves to make essentially all of those photos rapidly available globally.

In this environment it is difficult, as a practical matter, to limit the reach of smartphone photography.  Although some observers question the overall value of our apparent pre-occupation with selfies, those images do, in fact, represent a form of expression and communication.  As the courts in the New Hampshire case recognized, selfies and other smartphone photographic content are protected under the Constitution.

The federal courts acted reasonably when they concluded that selfies do not pose a serious threat to the integrity of the electoral process in the United States.  Recent headlines appear to suggest that hackers and governments present serious potential threats to the integrity of U.S. political and electoral institutions.  When compared to those threats, it seems clear that smartphone photography is not a threat to the U.S. electoral system.  For the sake of the public interest, government authorities should direct their attention and resources to the more significant threats to electoral integrity, and abandon their apparent focus on smartphone photography.