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Publication Date

3-2014

Document Type

Article

Abstract

You are a student at the Massachusetts Institute of Technology showing up at the polling place to cast your ballot on election day in another historic presidential election. You are excited and cannot wait to exercise your right to vote. You just know that your candidate is the right person for the job and the opposition's candidate is the reason for all the country's problems.

As you get closer to the table where the poll worker is checking people in to vote, you see a young woman get turned away because she is wearing a button for a presidential candidate's campaign.2 Then, the next person in line is turned away for wearing a button asking the poll worker to "Please I.D. Me."' It is an odd slogan, and not one you would relate to any specific politician. Only one person is left in front of you in line. She wears a yellow shirt with a coiled rattlesnake on it and the words "Don't Tread on Me.' A history nut, you think (as you recall the Gadsden Flag from your high-school history class). You overhear the poll worker tell her that she needs to go to the restroom to turn the shirt inside out before she will be allowed to vote. ...

This Article seeks to answer the following question: What are the actual limits the government can place on political speech at and around the polling place? In examining this question, this Article argues that some of the current limitations placed on polling-place activities are unconstitutional. Specifically, this Article focuses on the wearing of political slogans and images within the polling room and campaign-free zone and the placement of campaign signs within the campaign-free zone. Part II will examine the interpretation of the First Amendment's Free Speech Clausen under both an originalist and policy-based philosophy when applied to passive electioneering. Part III will discuss whether the statutes prohibiting passive electioneering are constitutional.

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