Selfie culture, long debated in the court of public opinion, will make its debut in a federal court of appeals on Tuesday, when a panel of judges is set to appraise a New Hampshire law banning voters from sharing photos of their marked ballots on social media. The case before the First U.S. Circuit Court of Appeals in Boston pits longstanding policies favoring ballot secrecy—generally adopted in the U.S. in the 19th century to stanch then-rampant vote buying—against a form of smartphone-enabled expression popular with young voters. Since at least 1979 it has been illegal in New Hampshire for a voter to show his ballot to someone else with the intention of disclosing how he plans to vote. In 2014, state legislators amended the law to include a ban on “taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media.” The aim of the law: to guard against hypothetical vote-buying schemes in which ballot selfies serve as proof of performance.
Free speech and media advocates say ballot selfies are a powerful form of political speech protected by the First Amendment. “The ballot selfie captures the very essence of that process as it happens—the pulled lever, the filled-in bubble, the punched-out chad—and thus dramatizes the power that one person has to influence our government,” the social media company Snapchat Inc. wrote in an April brief filed in the case.
A lower federal court in New Hampshire pronounced the law unconstitutional in an August 2015 ruling, finding state officials failed to provide a single example of a ballot selfie used to facilitate vote buying or coercion. New Hampshire appealed the ruling to the First Circuit.