Elections and Politics

Ballot Disclosure Laws: A First Amendment Anomaly

Today, the Digital Media Law Project is launching a new guide to photography and filming at this year’s presidential election, Documenting the Vote 2012. This resource provides a wide range of information for all fifty states plus the District of Columbia, regarding laws that restrict the use of cameras in and around polling places (as well as other journalistic activities).

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Documenting the Vote 2012

We expect that a number of individuals, including many journalists, plan to report from the polling place on November 6th. Photography and video can be critically important to document the election process and to preserve a record of any procedural improprieties and interference with voter rights. At the same time, however, voting is a very private matter, and attempts to record at the polling place are subject to strict regulation to safeguard voter privacy, protect against voter intimidation, and to ensure the proper functioning of the voting process.

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State Law: Documenting the Vote 2012

On this page, we provide a list of election laws, websites, and contact information for election officials in all 50 states and the District of Columbia. Contacting your state election officials is a great way to get information about what your state allows in terms of documenting the vote. As you learn new information, please contact us and let us know how your state is handling these requests, so we can share that information on this site.

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Virginia: Documenting the 2012 Vote

Note: This page covers information specific to Virginia. For general information regarding legal issues associated with documenting your vote, see the Documenting the Vote 2012 page.

Virginia election law may affect your ability to use video or still photography in and around your polling place, as well as your ability to interview other voters at the polls.  The following provisions may be important to you:

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Wisconsin: Documenting the 2012 Vote

Note: This page covers information specific to Wisconsin. For general information regarding legal issues associated with documenting your vote, see the Documenting the Vote 2012 page.

Wisconsin election law may affect your ability to use video or still photography in and around your polling place, as well as your ability to interview other voters at the polls.

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Colorado: Documenting the 2012 Vote

Note: This page covers information specific to Colorado. For general information regarding legal issues associated with documenting your vote, see the Documenting the Vote 2012 page.

Colorado election law may affect your ability to use video or still photography in and around your polling place, as well as your ability to interview other voters at the polls. The following provisions may be important to you:

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Guide to Reporting at the 2012 Republican and Democratic National Conventions

This page hosts the our Guide to Reporting at the 2012 Republican and Democratic National Conventions, and related resources

More than ten thousand journalists are expected to attend the Republican and Democratic National Conventions in Tampa and Charlotte in the late summer of 2012. A complicated array of laws will be enforced at these events by federal officers, state and local law enforcement, and private security. This Guide is intended to provide detailed information about how the law will apply to those trying to gather news at the events surrounding the conventions.

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Bland v. Roberts

Threat Type: 

Lawsuit

Date: 

04/24/2012

Party Receiving Legal Threat: 

Bobby Bland, Daniel Ray Carter. Jr., David W. Dixon, Robert W. McCoy, John C. Sandhofer, and Debra H. Woodward

Type of Party: 

Individual
Government

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

United States District Court, E.D. Virginia, Newport News Division

Case Number: 

Civil Action No. 4:11cv45

Legal Counsel: 

James Harrell Shoemaker, Jr., Jason Eric Messersmith, William Vinton Hoyle, Jr.

Publication Medium: 

Social Network
Other

Relevant Documents: 

Status: 

Pending

Description: 

On March 3, 2011, Bobby Bland, along with five coworkers in the Sheriff's Department in Hampton, Virginia, sued their former employer, Sheriff B.J. Roberts, in the U.S. District Court for the Eastern District of Virginia alleging wrongful termination due to their support of Sheriff Robert's opposition in a 2009 re-election campaign. In their complaint, the plaintiffs claim Sheriff Roberts violated their First Amendment rights to freedom of speech and freedom of association when he fired them in December 2009 after he was re-elected. Four of the plaintiffs are sworn, uniformed deputy sheriffs. Bland and another plaintiff are unsworn, non-uniformed civilian employees within the Sheriff's Office.

The complaint alleges that Sheriff Roberts fired Bland and others because they supported the Sheriff Robert's opposition, Jim Adams, who previously worked at the Sheriff's Office for 16 years and was third in command as Lieutenant Colonel, though he had recently resigned in order to run against Roberts. The plaintiffs contend that Sheriff Roberts found out about their support of Adams, including two plaintiffs' online support of Adams' Facebook page (Carter, McCoy), one plaintiff "liking" Adams' Facebook page (Carter), other plaintiffs attending a campaign cookout allegedly for Adams (McCoy, Sandhofer, Carter), one plaintiff displaying a bumper sticker supporting Adams and making a negative statement with profanity to a poll worker about the Sheriff's election material (Dixon), and one plaintiff refusing to actively support the Sheriff Robert's reelection efforts as she had done in the past (Woodward).  

The plaintiffs further allege in their complaint that Sheriff Roberts knew of their active support of Adams, and that their terminations were "unlawful, retaliatory and improper in that the Defendant B.J. Roberts effected these terminations because the Plaintiffs exercised their rights to freedom of speech in refusing to support Roberts' re-election efforts and in actively supporting Roberts' opponent." They also allege that the Sheriff "used his authority to bolster his reelection efforts" by soliciting them to provide services in support of those efforts, including selling and buying tickets for campaign fundraisers. They demand monetary relief and reinstatement to their prior positions.

On December 9, 2011, Sheriff Roberts filed a motion for summary judgment in which he argued that there was no genuine issue of material fact because plaintiff's did not provide sufficient evidence on their First Amendment Retaliation Claim and First Amendment Assoication Claim. Roberts said he fired the plaintiffs because of poor work performance, budget constraints and  lack of harmony and efficiency" in the Sheriff's Office, not because of their support for Adams. Further, he alleged that during the 2009 election, he "had no knowledge of whether plaintiffs or any other appointee supported him or Adams."

In response to plaintiffs' First Amendment claims, Roberts argued that the claims fail because there was insufficient evidence to prove a "casual nexus between their alleged speech and Sheriff Roberts' decision not to reappoint them," citing McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998). Similarly, the motion argues that plaintiffs' freedom of association claims must fail because plaintiffs could not establish any direct causation between their termination and their political support of Adams.  In addition, Sheriff Roberts offers affirmative defenses that he is entitled to qualified immunity in his individual capacity, and that he is barred by the Eleventh Amendment from being sued in his official capacity as Sheriff.

Plaintiffs filed their opposition to the motion for summary judgment on December 23, 2011, responding that there was a dispute of material fact as to whether they were terminated on the basis of (1) their political affiliation, in violation of their First Amendment rights as articulated in Elrod v. Burns, 427 U.S. 347 (1976) and (2) protected employee speech on matters of public concern under the Pickering and Connick test, balancing whether a public employee's speech is constitutionally protected. Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983). The first argument was asserted by all plaintiffs; the latter claim was asserted only by Plaintiffs Carter, Dixon, McCoy and Woodward. 

In the Sheriff's reply to the plaintiffs' opposition, he argued that plaintiff's First Amendment claims fail because they were not engaging in First Amendment expression that is protected by the Constitution. Sheriff Roberts argues that Plaintiff Carter and McCoy's activities on Facebook, Plaintiff Woodward's conduct, and Dixon's statement to a poll worker were not constitutionally protected speech. Furthermore, Roberts alleges that plaintiffs could not prove that he [Sheriff Roberts] knew about their support of Adams or that he made his hiring decisions based on those facts.

On April 24, 2012, the District Court granted the defendant's Motion for Summary Judgment, holding that the plaintiffs asserting rights of freedom of speech failed to the first prong of the McVey test, i.e., speaking out on a matter of public concern, because they did not sufficiently engage in "expressive speech." While the election process was certainly a matter of public concern, the court found that the alleged speech at issue -- "liking" an opponent's Facebook page, having a car bumper sticker, allegedly using profanity at an election booth about the Sheriff's campaign literature, and refraining from supporting the Sheriff -- was not speaking out, and therefore was not speaking at all

The court further explained that Plaintiff Carter's "liking" of Adams' Facebook page was "insufficient speech to merit constitutional protection." The court held further that "[i]n cases where courts have found that consitutional speech protections extended to Facebook posts, actual statements existed within the record," and that "liking" the Facebook page was not an actual statement, but rather just "one click of a button."

The court also ruled against all plaintiffs on their claims of freedom of association, finding that there was insufficient evidence that the Sheriff knew about their "association" with the Adams campaign.  Finally the court held that "[e]ven if the Court found that Plaintiffs had adequately stated First Amendment claims, the Sheriff, in his official capacity, would still be immune from liability" under both the qualified immunity doctrine and the Eleventh Amendment.  The court based this ruling on the fact that the Sheriff in Virginia is a constitutional officer and that a suit against him in his official capacity is a suit against the State.

The plaintiffs filed a notice of appeal on May 24, 2012.

UPDATE:

July 20, 2012: Plaintiffs/appellants file their brief on appeal, arguing that they could not constitutionally be terminated based upon their political affiliations because they were not in confidential or policy-making positions as to which political loyalty was essential. They further argued that plaintiffs Carter, Dixon, McCoy and Woodward through the actions described above engaged in protected speech on a matter of public concern, that their interests outweighed the interests of the state in the Pickering balancing test, and that the defendant was not entitled to qualified immunity.

August 6, 2012: Facebook files an amicus brief in support of plaintiff/appellant Carter, arguing that a Facebook "like" is constituionally protected speech. The American Civil Liberties Union and ACLU of Virginia also file an amicus brief, arguing among other things that Carter, Dixon, McCoy and Woodward all engaged in protected speech regardless of the clarity, value or medium of the speech. 

September 14, 2012: Defendant files his appellee's brief, arguing that the district court correctly rejected all aspects of the plaintiffs' claims.

October 1, 2012: Plaintiffs file their reply brief. The reply presented additional arguments that the defendant was aware of the plaintiffs' political affiliation with and support for defendant's political opponent, and that the plaintiffs had established that their political activity was the cause of their termination.

September 18, 2013: The Fourth Circuit affirmed the district court in part, reversed in part, and remanded the case

The Court of Appeals held that Carter, Dixon, and McCoy had identified sufficient disputes of fact to allow their claims for reinstatement of their employment to continue, but affirmed as to all other claims. Specifically, the Court held that Carter, Dixon, and McCoy had engaged in speech protected by the First Amendment (including an extended discussion of the impact of a Facebook "like") and that they raised a material issue of fact as to whether they were terminated for that speech; however, plaintiffs Sandhofer, Woodward and Bland had failed to present evidence warranting an inference that they were terminated for their speech. The Court further found that: (1) there was evidence that Carter, Dixon & McCoy's employment positions were not so entwined with policy that they could be terminated for disloyalty to the Sheriff; (2) their speech was made in their private capacities and related to matters of public concern; and (3) there was no evidence of disruption to the workplace as a result of their speech. Accordingly, the Could held that the claims by Carter, Dixon and McCoy would survive summary judgment on the merits. 

However, the Court held that their claims against the Sheriff in his personal capacity were barred by the doctrine of qualified immunity, because prior case law was not clear enough for the Sheriff to know whether the plaintiffs held positions subject to dismissal for breach of loyalty. The Court also found that these three plaintiffs' claims for monetary relief against the Sheriff in his public capacity were barred by the Eleventh Amendment. Nevertheless, the Court held their claims for reinstatement to their prior positions could proceed, because the Eleventh Amendment does not bar prospective relief.  In the end, the Court remanded the case to the district court to proceed to trial on Carter, Dixon and McCoy's claims for reinstatement, but affirmed the dismissal of all other claims.

In an extended dissent, Judge Hollander of the Fourth Circuit argued that the Sheriff should not have been entitled to qualified immunity. She stated that prior case law clearly established that the Sheriff should have considered the specific duties with which Carter, Dixon, and McCoy were entrusted, and that taking those duties into account it should have been clear that they did not hold positions that could be terminated for disloyalty.

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Ron Paul 2012 v. Does 1-10

Threat Type: 

Lawsuit

Date: 

01/13/2012

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

CV-12-00240

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

On January 13, 2012, Ron Paul's presidential campaign organization sued anonymous YouTube users in federal court over a video posted on YouTube by user "NHLiberty4Paul" on January 4, 2012. The video is critical of then-Republican presidential candidate Jon Hunstman, focusing on Huntsman's ambassadorship to China. It concludes by suggesting that viewers vote for Ron Paul instead.

The complaint alleges that the video was created by parties opposed to Paul's presidential campaign, and was "deliberately calculated" to harm Paul's reputation by attaching his name to a "malicious" and "offensive" video. It further states that the video is "a classic case of dirty politics," and that Paul's campaign has absorbed "scathingly negative" media attention from news outlets that believed the video originated from the Paul campaign. The complaint alleges two counts of infringement of the Paul campaign's unregistered trademark in the name "Ron Paul" under 15 U.S.C. 1125(a), and a count of defamation. The campaign seeks monetary damages, the removal of the video, and injunctions against future use of the "Ron Paul" mark.

On January 18, the Paul campaign applied for expedited discovery to identify the YouTube users who posted the video. The application argues that the case cannot proceed until the defendants are identified, thus warranting expedited discovery on this point. The campaign seeks documents both from YouTube and from Twitter, where an account also called "NHLiberty4Paul" exists. Paul's campaign manager, Jesse Benton, also filed a declaration (scroll down) stating that the Paul campaign did not produce the Huntsman video.

UPDATE:

On January 25, a magistrate judge denied without prejudice the campaign's motion for expedited discovery. The magistrate applied the test from Columbia v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), which requires plaintiffs to (1) identify the anonymous persons with some specificity; (2) describe all other attempts the plaintiff has made to find the anonymous persons; (3) show that the lawsuit could survive a motion to dismiss; and (4) show a "reasonable likelihood" that the anonymous persons could be identified through discovery. Since the Paul campaign's motion did not address these factors, the magistrate denied it but invited the campaign to refile with the appropriate information. 

On January 27, Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project filed a motion for leave to file an amicus brief in the case, urging the court to clarify the order of January 25th and impose the standard first articulated in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. 2001). This standard requires (1) plaintiffs to provide reasonable notice to potential defendants and an opportunity for defendants to defend their anonymity before issuance of a subpoena; (2) plaintiffs to allege with specificity the speech that has allegedly violated the plaintiff's rights; (3) the court to ensure that the claim states a cause of action upon which relief can be granted as to each statement and against each defendant; (4)  plaintiffs to produce evidence supporting each element of its claims; and (5) the court to weigh the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

On February 1, 2012, the court granted the motion to file an amicus brief, and instructed the Paul campaign to address the arguments raised by the amici if they decide to refile a motion for expedited discovery.

On February 12, 2012, the Ron Paul Campaign filed a revised application for expedited discovery. The court invited the amici Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project to file a memorandum addressing the revised application. The amici filed a memorandum on February 22, 2012. On February 29, 2012 the Ron Paul campaign committee filed a reply brief.

On March 8, 2012, the court again denied the campaign's motion for expedited discovery.  The judge declined to determine which test, Seescandy.com or Dendrite, applied in the case, and instead looked to the common factor in both tests: whether the plaintiff had "filed a valid complaint so the Court can be assured that the alleged claims will withstand a motion to dismiss."  The court ruled that the Paul campaign had not, writing that its arguments failed to connect the YouTube video to a commercial venture as required by the Lanham Act.  As such, its trademark claims failed to overcome the first hurdle in both tests, and no further decision as to which test applied was needed. 

Having decided that the federal causes of action failed to state a claim, the court declined to grant expedited discovery on the basis of the remaining state-law defamation claim.  The court also noted that if the Lanham Act claims were dismissed, "issues develop" over the court's ability to exercise supplemental jurisdiction over the state law claims.

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RSS

CMLP Notes: 

1/20/12: Sharkey created

1/23/12: JH editing

2/7/12: AS edits

3/8/12: AB edits

3/15/12: AS added some interlocutory docket entries

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Sherrod v. Breitbart

Date: 

02/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Andrew Breitbart, Larry O'Connor, John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the District of Columbia, Civil Division

Case Number: 

000157 11

Legal Counsel: 

Baker & Hostetler LLP (for Defendant O'Connor); Katten Muchin Rosenman LLP (for Defendant Breitbart)

Publication Medium: 

Blog
Micro-blog
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On February 11, 2011, former United States Department of Agriculture official Shirley Sherrod filed in District of Columbia Superior Court a defamation lawsuit against Andrew Breitbart and Larry O'Connor, two individuals involved with the prominent conservative political blog BigGovernment.com. The complaint also names a John Doe defendant.

The complaint stems from a March 2010 speech Sherrod gave to the NAACP, and the defendants' subsequent treatment of that speech. On July 19, 2010, Breitbart posted on BigGovernment an edited video of Sherrod's speech, along with allegations that Sherrod carried out her USDA duties "through the prism of race and class distinctions." The complaint also discusses slides added to the video of the speech that allege that Sherrod "discriminates against people due to their race." Along with Breitbart's post discussing Sherrod's speech, the complaint also alleges that O'Connor posted the edited video to YouTube, and that the John Doe defendant provided Breitbart and O'Connor with the unedited video and assisted in editing it.

After the defendants' alleged actions, Sherrod left her job with the USDA; the complaint alleges that the White House asked for her resignation because of the edited video and ensuing media uproar. Sherrod's complaint alleges defamation (for the edited video, blog post, and a Twitter post promoting the video and post), false light, and intentional infliction of emotional distress, and also seeks punitive damages.

The defendants removed the case to the U.S. District Court for the District of Columbia. Sherrod responded by moving to remand, arguing that the other defendants knew that the John Doe lived in Georgia (where Sherrod lives), and that Doe's citizenship defeats federal diversity jurisdiction. The defendants opposed remand on the grounds that a John Doe defendant's citizenship is irrelevant for diversity-jurisdiction purposes.

On the same day (April 18) that they filed their opposition to remand, the defendants moved to dismiss, both pursuant to Federal Rule 12(b) and under the D.C. Anti-SLAPP Act. The Rule 12(b) motion argues improper venue (with an alternative request to move the case to California, where Breitbart and O'Connor live), as well as substantive grounds (that the blog post was non-actionable opinion, and that the edited video was an accurate depiction of Sherrod's speech). The anti-SLAPP motion incorporates the motion to dismiss in arguing that Sherrod cannot show that her claims are likely to succeed.

On May 19, Sherrod filed memoranda opposing both motions to dismiss. Her opposition to the anti-SLAPP motion argues, among other things, that the D.C. Anti-SLAPP Act was passed after the lawsuit began and does not apply retroactively, and/or that it does not apply in federal court. Her opposition to the Rule 12(b) motion argues both that venue in D.C. is proper, and that the defendants' comments are non-opinion and "indefensible." Sherrod also filed a reply in further support of her motion to remand. On June 3, the defendants filed replies in support of both motions to dismiss.

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Citizens United v. Wisconsin Democracy Campaign

Threat Type: 

Correspondence

Date: 

03/10/2010

Party Receiving Legal Threat: 

Wisconsin Democracy Campaign

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Social Network
Website

Relevant Documents: 

Status: 

Pending

Description: 

On March 10, 2010, a lawyer representing the conservative non-profit organization Citizens United sent a demand letter to Mike McCabe, director of the Madison-based Wisconsin Democracy Campaign.  The letter claimed that Wisconsin Democracy Campaign's "Citizens United Against Citizens United" facebook page and online petition, which were created to galvanize opposition to the Supreme Court's controversial decision in Citizens United v. FEC (large pdf), infringed Citizens United's trademark in its name.  The letter demanded that Wisconsin Democracy Campaign cease all use of the trademark and destroy any writings and/or articles bearing the trademark.

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Gwinn v. Nelson

Threat Type: 

Correspondence

Date: 

01/28/2010

Party Receiving Legal Threat: 

Nate Nelson

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Description: 

Susan Gwinn, former chairwoman of the Athens County, Ohio Democratic Party sent a demand letter to Nate Nelson, an Ohio University student, demanding that he retract a letter to the editor published on The Athens NEWS website. In the letter to the editor, titled Gwinn should be just the start of the local Democratic Party housecleaning, Nelson, a member of the OU College Republicans, wrote:

Certainly the cleanup has begun with Gwinn, but Susan Gwinn has been mucking up the Athens County government and spreading the corruption around for a long time.

Gwinn's demand letter asserted that the statement is "untrue and libelous." Nelson told a reporter for The Post, an independent student-run newspaper at OU, that "he would not retract the statement, he would hire an attorney and he would defend his statement in court if necessary."

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