No UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT LEON H. RIDEOUT; ANDREW LANGOIS; BRANDON D. ROSS. Plaintiff - Appellees

Transcription

1 No UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT LEON H. RIDEOUT; ANDREW LANGOIS; BRANDON D. ROSS Plaintiff - Appellees v. WILLIAM M. GARDNER, in his official capacity as Secretary of State of the State of New Hampshire Defendant Appellant REPLY BRIEF OF THE APPELLANT, WILLIAM M. GARDNER, in his official capacity as Secretary of State of New Hampshire William M. Gardner, By his attorney, JOSEPH A. FOSTER NEW HAMPSHIRE ATTORNEY GENERAL May 9, 2016 Stephen G. LaBonte 1 st Cir. Bar No Laura E. B. Lombardi Senior Assistant Attorney General 1 st Cir. Bar No NH Department of Justice 33 Capitol Street Concord, N.H (603)

2 TABLE OF CONTENTS Page TABLE OF CONTENTS..i TABLE OF AUTHORITIES..ii INTRODUCTION... 1 I. RSA 659:35, I, merely bans the use of a marked ballot as proof of how the voter voted... 1 II. The news gathering priviledge is not applicable in this case... 3 CONCLUSION... 5 CERTIFICATE OF SERVICE... 6 CERTIFICATE OF COMPLIANCE... 7 i

3 Cases TABLE OF AUTHORITIES Branzburg v. Hayes, 408 U.S. 665 (1972)... 3,4 Statutes RSA 359: RSA 635:35, I... 4, 5 RSA 659: , 2, 5 RSA 659:35, (I) (2014 Supp.)... 1 ii

4 INTRODUCTION RSA 659:35, I as amended by HB 366 preserves the integrity of New Hampshire elections by prohibiting the voter s display of their ballot as proof of how they are about to vote or have voted. The statute secures voter s right to vote their conscience while in the voting booth. To the extent RSA 659:35, I as amended by HB 366 hampers the newsgathering process such burdens are incidental. The press has no special immunity from the application of general laws, nor does it have any special privilege to invade the rights and liberties of others. I. RSA 659:35, I, MERELY BANS THE USE OF A MARKED BALLOT AS PROOF OF HOW THE VOTER VOTED Beginning on page 14 of their brief the Appellees assert that HB366 s amendment to RSA 659:35(I) bans a person from displaying a photograph of a marked official ballot reflecting how he or she has voted, including on the Internet through social media platforms like Twitter, Facebook, and Instagram. Appellees Br. 14. This prohibition, however, only applies to the use of a ballot, produced by the government for the specific purpose of choosing those who will govern, as proof of how the voter voted. See RSA 659:35, (I) (2014 Supp.). What the statute does not 1

5 prohibit is the voter expressing who they voted for by any other means written, visual or oral. To support their position the Appellees offer the example of an 18- year-old, newly-minted voter who is excited about voting in her first presidential election and wishes to publically show on Facebook her enthusiastic support for a candidate using powerful imagery of the very document she used to participate in the democratic process being prohibited from doing by RSA 659:35, I. Appellees Br. 15. However, the statute does not prevent that 18-year-old, newly-minted voter from walking out to the parking lot of the polling place and screaming at the top of her lungs for whom she voted, or posting on any social media platform the name of the candidate for whom she voted. Nor does it prevent her from posting a picture of herself, enthusiastically electioneering for the candidate of her choice by holding a campaign sign at the polling place in view of voters as they enter. At the same time the 18-year-old, newly-minted voter is ensured the right to vote her conscience in the voting booth by the statute. Imagine a less fortunate 18-year-old, newly-minted voter who has been informed that if she does not vote as she has been instructed, she will lose the job she needs to pay her college tuition. That less fortunate 18-yearold, newly-minted voter is protected by the statute by being prevented from 2

6 providing direct proof of how she voted. The statute protects the sanctity of the voting booth and the secrecy of the official ballot, a longstanding American tradition aimed to protect the right to cast a free and independent vote, thus allowing each voter to be true to oneself. II. THE NEWS GATHERING PRIVILEDGE IS NOT APPLICABLE IN THIS CASE Citing Branzburg v. Hayes, Snapchat, Inc. (Snapchat) appears to argue as amicus curiae that the newsgathering privilege somehow affords its users additional protections under the First Amendment. See Snapchat Br. 16. Although newsgathering may qualify for First Amendment protection, [i]t is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Branzburg v. Hayes, 408 U.S. 665, 682 (1972). [T]he press is not free to publish with impunity everything and anything it desires to publish. Id. at 683. The press has no special immunity from the application of general laws, nor does it have any special privilege to invade the rights and liberties of others. Id. In Branzburg, the Court affirmed a lower court s order requiring a reporter to appear before the grand jury. Id. at 631. The Branzburg Court considered that despite the fact that news gathering may be hampered, the 3

7 press is regularly excluded from grand jury proceedings, Supreme Court conferences, the meetings of official bodies gathered in executive session, and the meetings of private organizations. Id. at 684. The Court further noted that the press has no constitutional right of access to crime scenes or disaster areas when the general public is excluded, and the press may be prohibited from attending or publishing information about trials, if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal. Branzburg, 408 U.S. at RSA 635:35, I, as amended by HB 366, does not prevent a voter from snapchatting regarding his or her experience at the polling place. It merely prevents a voter from snapchatting an image of the voter s ballot as proof of how he or she voted. A voter can snapchat an image of a clash between opposing campaign supporters outside the polling place. The same voter can snapchat an image of long lines of voters waiting to receive their ballot to demonstrate a motivated constituency. As such, whatever burdens the enforcement RSA 659:35, I, may place on Snapchat s ability to run its Live Stories is incidental. RSA 635:35, I, as amended by HB 366 does not ban Snapchat from covering the elective process, it simply prevents them from covering inside the voting booth. 4

8 CONCLUSION For the foregoing reasons and the reasons set forth in the Secretary of State s principal brief this Court should reverse the decision of the trial court and hold that RSA 359:35, I does not violate the First Amendment. Respectfully submitted, WILLIAM M. GARDNER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF NEW HAMPSHIRE By his attorney, Dated: May 9, 2016 JOSEPH A. FOSTER ATTORNEY GENERAL /s/ Stephen G. LaBonte Stephen G. LaBonte First Circuit Bar # Assistant Attorney General Civil Bureau New Hampshire Department of Justice 33 Capitol Street Concord, New Hampshire (603) stephen.labonte@doj.nh.gov 5

9 CERTIFICATE OF SERVICE I hereby certify that on May 9, 2016, I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: Gilles R. Bissonnette, Esquire William E Christie, Esquire Dated: May 9, 2016 /s/ Stephen G LaBonte Stephen G. LaBonte #

10 CERTIFICATE OF COMPLIANCE WITH RULE 32 (a) 1. This reply brief complies with the two-type volume limitations of Fed. R. App. P. 32 (a)(7)(b) because this brief contains 1, 277 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. 32(a)(6) because this reply brief has been prepared in a proportionally spaced typeface using 14-point Times New Roman in Microsoft Word /s/ Stephen G LaBonte Stephen G LaBonte #