WASHINGTON (MEDIA GENERAL) — The First Amendment protects nearly every form of speech, including flag burnings, sexist rants and KKK rallies.
But does the Constitution protect ballot selfies?
The short answer: Nobody knows.
It’s an important question in 2016 as more than 100 million Americans head to the polls, and cyber-savvy voters will be dying to post a picture of their smiling faces next to completed ballots.
“I love being able to have my name and my face and my vote all together for everyone to see,” early voter Mira said in Washington, D.C., after casting her ballot and snapping a selfie.
The temptation proves irresistible for even the electorate’s most famous members.
Earlier this week, music superstar Justin Timberlake posted a #votingselfie on social media, sparking speculation that he could face prosecution for breaking a Tennessee law banning such photos.
Local prosecutors in Memphis decided against pursuing charges, but that level of leniency is far from guaranteed nationwide.
State laws vary greatly when it comes to turning voting booths into photo booths.
Fewer than 20 states explicitly allow residents to capture the moment on camera, according to a study by the Associated Press, but even those areas often dissuade voters from documenting the moment.
“Legally, they can do it,” conceded D.C. Board of Elections spokeswoman Tamara Robinson, but pointed out, “We do ask and discourage voters from taking ballot selfies” for fear of creating longer lines and compromising the integrity of the voting process.
The majority of U.S. states have statutes on the books that either outlaw ballot photos or are unclear on the issue.
Enforcing the laws can sometimes create a legal hazard.
In 2014, three New Hampshire voters sued the state in federal court after they were told that they had violated state law by posting pictures of their ballots in a primary race.
Granite State lawmakers reasoned that ballot pictures exposed the electoral system to certain risks, like vote-buying and voter intimidation.
The selfie-snappers, backed by the ACLU and Snapchat, disagreed and took their case all the way up to a federal court of appeals, which is just one step below the U.S. Supreme Court.
A three-judge panel found that New Hampshire violated voters’ First Amendment rights by impeding their exercise of free speech during the election process without sufficient tailoring, writing that state legislators were guilty of “burning down the house to roast the pig.“
New Hampshire now allows ballot selfies.
Since a large number of states still have active laws banning ballot selfies, it’s likely that similar lawsuits could pop up in courts around the nation following this election cycle.
If one of those cases makes it to a federal appeals court which rules against the voters, it would create a prime opportunity for the Supreme Court to step in and resolve the issue once and for all.
Until then, selfie-takers could face $1,000 in fines or spend up to 30 days in jail, depending on specific state laws.
Follow Chance Seales on Twitter: @ChanceSeales