Open Elections, Closed Polls: The First Amendment and Reporting from Polling Places

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President Obama’s inauguration to a second term of office earlier this week officially marked the end of what many considered to be the most contentious, extended, and even exhausting campaign season in recent memory. When asked who is to blame for the particularly frustrating character of the 2012 elections, more than a few Americans would probably point their finger squarely at the media. The rise of 24-hour cable news, and perhaps more importantly, the ready accessibility of news on the Internet certainly has the potential to leave consumers feeling oversaturated by content and commentary.

But however you feel about the state of the news industry today, it must be admitted that media has an important role to play in maintaining a healthy democratic system of government. This role is of the highest importance every four years, when voters head to the polls to decide the political future of the country. News coverage of elections helps maintain an informed electorate, and monitors the integrity of the voting the process. In deciding the appropriate privileges to grant media members pursuing these goals, there are, as in most First Amendment cases, questions of scope.

For instance, do reporters and photographers have a First Amendment right to access polling places as part of the news gathering process? According to one United States appellate court, they do not. As reported by Politico, last week the Third Circuit of the U.S Court of Appeals found a Pennsylvania statute which prohibited anyone not in the course of voting or serving in an official function directly connected with the voting process from coming within 10 feet of a polling place did not violate the First Amendment rights of local reporters.

Though it recognized that the First Amendment does contain some independent protections for news-gathering activities, the court in PG Publishing Co. v. Aichele (PDF), noted that these privileges are “qualified and subject to limitations.” In determining whether access to polling places fell within narrowly tailored First Amendment news-gathering rights, the court looked to a trio of Supreme Court cases (The Richmond Newspapers,Globe, and Press-Enterprises cases, respectively). These cases delineate a balancing test for determining when the press should have a positive right of access to government bodies, processes and decisions. The “experience and logic” test, as it is commonly known, asks “whether the place and process have historically been open to the press”, and “whether public access plays a significant positive role in the functioning of the particular process in question.” If both prongs are satisfied, reporters enjoy a qualified privilege to monitor the activity in question. Thus, the test “balances the interests of the People in observing and monitoring the functions of their government against the government's interest and/or long-standing historical practice of keeping certain information from public scrutiny.”

In applying the first prong test, the court looked to the American historical tradition of a closed voting process. Though public debate leading up to election day should be allowed to be robust and open, the court found the act of voting itself has been almost exclusively secret since the 1800s. Despite the fact that failure to satisfy the first prong alone prevents media members from claiming First Amendment news-gathering rights at polling places, the court continued its discussion to find that the plaintiffs also did not meet the second prong of the experience and logic test. Though it recognized that there might be some benefit to allowing reporters to gather news from inside polling locations, the court found several dispositive drawbacks from this extension of the First Amendment. Initially, the court noted that it had even been provided satisfactory evidence that there was a significant difference in the news-gathering ability of a reporter inside a polling location and one just outside the door. The judges also voiced concern that extension of the privilege to the press members in question would necessarily extend a similar privilege to all members of the media. Even beyond concerns surrounding how to define who is a member of the media and who is not, the court found that the presence of reporters at sign-in tables where voters exchanged personal information had the potential to “concern, intimidate or even turn away voters.”

The decision in PG Publishing Co. v. Aichele is perhaps best understood when viewed through the hierarchical lens which helps illuminates all free speech questions. This framework recognizes that certain types of speech is inherently more important than others, and when superior classes of speech come into conflict with those deemed inferior, the more valuable speech should be favored. Political speech has long been considered the most valuable class of speech, with voting at its core. It is unsurprising then, that the media was prevented from asserting First Amendment privilege when carrying out that privilege has the potential to conflict with voting, the end to which political speech is the means. Further, if coverage inside polling places did indeed discourage voter participation or hinder an effective and fair voting process, it would commit the dark irony of perpetrating the evil it was purported to help prevent.

Posted by Wills H. Citty on Sun. January 20, 2013 8:49 AM
Categories: Elections, Freedom of the Press

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