Can the state ban journalists from photographing inside polling places during elections?

Subject

Opinion No. 13-26, Restrictions on Use of Photographic Devices in a Polling Place, March 26, 2013

Plain-English summary

HB921 would have added a new subsection (f) to Tenn. Code Ann. § 2-7-103 prohibiting use of photographic or electronic monitoring or recording devices, cameras, or cellular telephones in a polling place during voting. County election commissions could authorize the press to use photographic devices "under such conditions and limitations as the election commission finds appropriate." Even when authorized, the press could not photograph ballots, voting machines while voters were using them, or voter lists. Poll officials retained the right to use devices for official purposes.

The AG concluded HB921 was defensible from a facial First Amendment challenge. The First Amendment protects newsgathering but not in unrestricted form. Branzburg v. Hayes, 408 U.S. 665, 681 (1972), recognized "without some protection for seeking out the news, freedom of the press could be eviscerated." But the right of access is qualified. Zemel v. Rusk and Pell v. Procunier both held that the press has no greater right of access than the general public, and that the Constitution does not require government to grant the press special access.

The "experience and logic" test from Press-Enterprise Co. v. Superior Court is the operative framework. A First Amendment right of access attaches only when (1) the place or process has historically been open to the press, and (2) public access plays a significant positive role in the process's functioning. Polling places fail both prongs. Voting in America has a "decided and long-standing trend away from openness, toward a closed electoral process," as the Third Circuit reasoned in PG Pub. Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013), relying on the U.S. Supreme Court's history of polling-place regulation in Burson v. Freeman, 504 U.S. 191 (1992).

HB921 was actually less restrictive than the regulation upheld in PG Pub. Co. v. Aichele, which required all non-essential persons to remain ten feet from the polling place. HB921 didn't bar press access; it only restricted the use of cameras while access remained available. Applying the same experience-and-logic analysis, the AG concluded a court would likely find no First Amendment right to unrestricted photographic newsgathering in a Tennessee polling place.

The state constitutional analysis tracked the federal one. Article I, section 19 of the Tennessee Constitution protects press freedom at least as broadly as the First Amendment under Leech v. American Booksellers Assoc., but as Mayhew v. Wilder recognized, the protection extends to publication and dissemination, not to access to government processes. So HB921 was defensible under article I, section 19 as well.

The AG flagged one as-applied concern. HB921 gave the county election commission broad discretion to set "conditions and limitations" for press access. Inappropriate exercise of that discretion (for example, denying press credentials to disfavored outlets while granting them to others) could give rise to an as-applied First Amendment challenge.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The First Amendment newsgathering framework (Branzburg, Press-Enterprise, the experience-and-logic test) remains stable, as does the polling-place line of cases (Burson, Minnesota Voters Alliance v. Mansky, 138 S.Ct. 1876 (2018)). Anyone analyzing a current state polling-place photography law should also look at Mansky on viewpoint discrimination at the polls and recent state ballot-selfie cases.

Background and statutory framework

The rise of smartphones around 2010 changed what could happen in a polling place. Voters could photograph their ballots and share the images on social media, raising vote-buying and intimidation concerns. Press outlets could record voters and election workers, raising privacy and disruption concerns. State legislatures responded with various restrictions. HB921 was Tennessee's version.

The existing framework before HB921:

• Tenn. Code Ann. § 2-7-103 listed who could be present in a polling place during voting: election officials, voters, persons assisting voters, the press, poll watchers under § 2-7-104, others with written authorization from the county election commission, and children with their parents.
• No state statute generally addressed camera or device use inside polling places. (The opinion cited § 10-7-103 as supporting press presence, but that section is part of the Public Records Act addressing inspection generally.)

HB921 added subsection (f):

• General ban on photographic, electronic monitoring, recording devices, cameras, and cellular phones in the polling place while voting takes place.
• County election commission could authorize press use of photographic devices under conditions and limitations the commission finds appropriate.
• Even with authorization, no photography of: optical scan ballots, the face of a voting machine or DRE unit while a voter is using it, or any voter list.
• Poll officials retained the right to use devices for official purposes.

The First Amendment framework.

• The First Amendment protects newsgathering, but the right is qualified. Branzburg v. Hayes, 408 U.S. 665, 681 (1972).
• The press has no special access right beyond what the public has. Zemel v. Rusk, 381 U.S. 1, 17 (1965); Pell v. Procunier, 417 U.S. 817, 832 (1974).
• A First Amendment access right attaches to particular places or processes only if "(1) the place and process have historically been open to the press" and "(2) public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Co. v. Superior Court for Riverside County, 478 U.S. 1, 8-9 (1986).

Application to polling places.

• The Third Circuit applied the experience-and-logic test to a Pennsylvania ten-foot polling-place buffer in PG Pub. Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013). The court held both prongs cut against access. Voting has trended toward seclusion since the 1890s (citing Burson v. Freeman's history of polling-place regulation). And public access does not play a positive role in the function of voting; if anything, more access can disrupt voting or coerce voters.
• HB921 is less restrictive. It didn't restrict press presence in the polling place at all; it only restricted device use while in the polling place. The press could still observe and take notes.

State constitutional analysis. Tennessee article I, section 19 is at least as broad as the First Amendment (Leech v. American Booksellers, 582 S.W.2d 738 (Tenn. 1979)), but state courts have not extended it to create an access right where the First Amendment does not. Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001), noted that the state press clause protects publication and dissemination but does not necessarily create access rights to government meetings or processes.

Common questions

Does the First Amendment let the press into every government place?

No. The First Amendment protects newsgathering, but the right of access turns on whether the place has historically been open to the press and whether public access plays a positive role in the process's functioning. Polling places fail both tests. Courtrooms, by contrast, generally pass.

What about ballot selfies?

HB921 would have made it illegal to photograph a voter's own ballot in the polling place. Multiple state and federal cases have addressed ballot-selfie laws since 2013, with mixed results. The First Amendment analysis is different for the voter (who has speech rights regarding their own vote) than for the press (who is asserting an access right). Anyone considering a current ballot-selfie ban should check post-2013 case law.

Could the county election commission discriminate among press outlets?

That was the as-applied risk the AG flagged. HB921 gave the commission discretion to set "conditions and limitations" for press access. If the commission used that discretion to favor or disfavor particular outlets based on viewpoint, the as-applied First Amendment challenge would be strong even though the bill survived facial review.

What about poll watchers? Can they use devices?

HB921 did not specifically address poll watchers. The bill's text targeted "any person" using devices in the polling place, with carve-outs for poll officials and (when authorized) the press. Whether the prohibition extended to poll watchers would have been an interpretation question if HB921 had been enacted.

Why is voting "historically closed" when polling places used to be much more public?

The historical move was from open voting (oral or party-ticket) in the 19th century to the Australian secret ballot at the end of the 19th century. Burson v. Freeman tells the story. By 1890, Tennessee and most other states had moved to the secret ballot precisely to insulate voters from intimidation and corruption. The "experience" prong of the test looks at that modern history of closure, not the colonial-era openness that preceded it.

Citations

Tenn. Code Ann. § 2-7-103 (polling place presence); § 10-7-103 (public records context). U.S. Const. amend. I; Tenn. Const. art. I, § 19. First Amendment access cases: Branzburg v. Hayes, 408 U.S. 665 (1972); Zemel v. Rusk, 381 U.S. 1 (1965); Pell v. Procunier, 417 U.S. 817 (1974); Press-Enterprise Co. v. Superior Court for Riverside County, 478 U.S. 1 (1986). Polling-place line: PG Pub. Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013); Burson v. Freeman, 504 U.S. 191 (1992). Tennessee press clause: Leech v. American Booksellers Assoc., 582 S.W.2d 738 (Tenn. 1979); Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001). Facial-vs-as-applied framework: Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-026.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 26, 2013

Opinion No. 13-26

Restrictions on Use of Photographic Devices in a Polling Place

QUESTION

Do the provisions of House Bill 921/Senate Bill 803 of the First Session of the 108th Tennessee General Assembly (hereinafter "HB921") place an unconstitutional restriction upon the freedom of the press in violation of the First Amendment to the United States Constitution or article I, section 19 of the Tennessee Constitution?

OPINION

HB921 is defensible from a facial constitutional challenge.

ANALYSIS

HB921 proposes to amend Tenn. Code Ann. § 2-7-103, which governs who may be present in a polling place during an election, by adding the following new language as subsection (f):

No person shall use photographic or other electronic monitoring or recording devices, cameras, or cellular telephones while such person is in a polling place while voting is taking place; provided, however, that the county election commission may allow the press to use photographic devices in the polling place under such conditions and limitations as the election commission finds appropriate. The election commission shall not allow the press to photograph an optical scan ballot, the face of a voting machine or DRE unit while a voter is voting such ballot, machine or DRE unit and no photography shall be allowed of the voter list, electronic voter list, or the use of a voter list or electronic voter list. This subsection (f) shall not prohibit the use of photographic or other electronic monitoring or recording devices, cameras or cellular telephones by poll officials for official purposes.

HB921, 108th Tenn. Gen. Assembly, 1st Sess. (2013).

HB921 as proposed does not place any facial unconstitutional restrictions on the freedom of the press in violation of the First Amendment to the United States Constitution or article I, section 19 of the Tennessee Constitution. HB921 does not place any restrictions on the right of the press to be present in the polling place, see Tenn. Code Ann. § 10-7-103(a), nor does it place any restrictions on the right of the press to publish. Instead, it places limited restrictions on the ability of the press to gather defined information in the polling place during any election, i.e., restricts the media's use of photographic, electronic monitoring or other recording devices except under defined circumstances. The United States Supreme Court has recognized that the First Amendment — in addition to protecting freedom of speech and the press — also contains protections for some news-gathering activity. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 681 (1972) ("[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated."). However, the Supreme Court has repeatedly held that this First Amendment right of access to information is qualified and subject to limitation. For example, the Court has recognized that "[t]he right to speak and publish does not carry with it the unrestrained right to gather information." Zemel v. Rusk, 381 U.S. 1, 17 (1965). Similarly, in Branzburg, the Court concluded that the press "has no special immunity from the application of general laws [and] no special privilege to invade the rights and liberties of others," and, therefore, the "First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Branzburg, 408 U.S. at 681-684. While the First and Fourteenth Amendments bar government from interfering in any way with a free press, the "Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally." Pell v. Procunier, 417 U.S. 817, 832 (1974).

As regards HB921, the press has no right to unrestricted use of photographic and electronic recording devices in a Tennessee polling place during elections. In evaluating whether there is a right of access to information, government bodies, their processes and their decisions, the United States Supreme Court employs a balancing test. A right of First Amendment access requires a two-prong evaluation of "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." Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 8 (1986). Where both prongs of the test are satisfied, "a qualified First Amendment right of public access attaches." Id. at 9. This test, often referred to as the "experience and logic" test, balances the interests of the people in observing and monitoring the functions of their government against the government's interest or long-standing historical practice of keeping certain information from public scrutiny.

The Third Circuit Court of Appeals recently applied this balancing test to polling places during an election in a case involving a challenge to a portion of the Pennsylvania Election code mandating that:

[a]ll persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers, when permitted by the provisions of this act, must remain at least ten (10) feet distant from the polling place during the progress of the voting.

PG Pub. Co. v. Aichele, 705 F.3d 91, 95 (3rd Cir. 2013). The Third Circuit found that both prongs of the "experience and logic" test militated against finding a right of access and held that there was no protected First Amendment right of access to a polling place for news-gathering purposes. Id. at 112-113. In doing so, the Third Circuit relied upon the United States Supreme Court's thorough exegesis on the history of voting in America to find that "our Nation's history demonstrates a decided and long-standing trend away from openness, toward a closed electoral process." Id. at 110 (citing Burson v. Freeman, 504 U.S. 191, 200-06 (1992)).

Here, HB921 is less restrictive than the election regulation at issue in PG Pub. Co. Unlike the Pennsylvania regulation, HB921 does not restrict press access to polling places during elections but simply restricts the use of photographic devices in certain limited circumstances. Applying the "experience and logic" test utilized by the Third Circuit, a court would likely conclude that there is no protected First Amendment right of the press to the unrestricted use of photographic and other electronic recording devices by the press in polling places during elections, particularly since Tennessee has a history of restricting access to polling places in order to "secure the purity of elections." See Burson, 504 U.S. at 205 (discussing history of Tennessee's regulations of access to polling places beginning in 1890). Accordingly, HB921 would not place any facial unconstitutional restriction on the freedom of the press in violation of the First Amendment.

Tennessee courts have not specifically addressed the issue of whether article I, section 19 of the Tennessee Constitution, like the First Amendment, contains protections for some news-gathering activity, i.e., a right of access. The Tennessee Supreme Court has held, though, that article I, section 19 should be construed as having a scope at least as broad as that afforded the freedoms of speech and press by the First Amendment. Leech v. American Booksellers Assoc., 582 S.W.2d 738, 745 (Tenn. 1979). However, Tennessee courts have also recognized that while article I, section 19 of the Tennessee Constitution restricts prior restraints on the publication and dissemination of materials critical of governmental actions, it does not necessarily provide a right of access to governmental meetings or processes. Mayhew v. Wilder, 46 S.W.3d 760, 772 (Tenn. Ct. App. 2001). As such, a court would likely conclude that no protected right exists under article I, section 19 to the unrestricted use of photographic and other electronic recording devices by the press in polling places during elections. Accordingly, HB921 would not place any facial unconstitutional restriction on the freedom of the press in violation of article I, section 19 of the Tennessee Constitution.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Mike Stewart
State Representative, 2nd District
Suite 24 Legislative Plaza
Nashville, Tennessee 37243