232
fy an ‘actual problem’ in need of solving
Playboy, 629 U.S. at 822-...(quoting
23, 120 S.Ct. 1878)); see also Asociación
de Educación Privada de Puerto Rico,
Inc. v. García-Padilla, 490 F.3d 1, 18 (1st
Cir.2007) (“We cannot conclude that [the
Puerto Rico Department of Consumer Affairs] has a legitimate state interest in
fixing a problem it has not shown to exist.”). To satisfy this requirement, the
government ordinarily must point to sufficient evidence in the law’s legislative history or in the record before the court to
show that the problem exists. See Turner,
512 U.S. at 667, 114 S.Ct. 2445 (explaining
that without evidence of an actual problem,
“we cannot determine whether the threat
[asserted by the government] is real
enough” to survive strict scrutiny).
“Anecdote and supposition” cannot substitute for evidence of a real problem. Playboy, 529 U.S. at 822, 120 S.Ct. 1878; Consol. Edison Co. of N.Y., Inc. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 530, 543, 100
S.Ct. 2326, 65 L.Ed.2d 319 (1980) (“Mere
speculation of harm does not constitute a
compelling state interest.”).
In the present case, neither the
legislative history nor the evidentiary record compiled by the Secretary in defense
of this action provide any support for the
view that the state has an actual or imminent problem with images of completed
8. I invited both parties to present additional
information and have given them every opportunity to come forward with any evidence
they have. Both parties agreed that a trial
was unnecessary- and that the case should be
decided on cross motions for summary judgment. Doc. No. 29 at 2.
9. The degree of deference that must be accorded to legislative judgments in First
Amendment cases will vary based on a variety of circumstances. In Turner Broadcasting System, Inc. v. FCC, the Court deferred
to Congress’s predictive judgment that the
law under review furthered important governmental interests. 520 U.S. 180, 185, 117
ballots being used to facilitate either vote
buying or voter coercion. The law’s legislative history contains only a single unsubstantiated third-hand report that vote buying occurred in Goffstown during the 2012
See Legislative History at
election.
000064. Although the Secretary was given
the opportunity to do so,8 he produced no
evidence that either vote buying or voter
coercion are current problems in New
Hampshire. Plaintiffs, in contrast, have
produced undisputed evidence that there
have been no vote buying prosecutions and
no complaints of vote buying in the state
since at least 1976. Exhibit B at 11.
More to the point, even though small cameras capable of taking photographic images of ballots have been available for
decades and cell phones equipped with digital cameras have been in use for nearly
15 years, the Secretary has failed to identify a single instance anywhere in the United States in which a credible claim has
been made that digital or photographic
images of completed ballots have been
used to facilitate vote buying or voter coercion. Although legislatures are entitled to
deference when making predictive judgments,9 deference cannot be blind to the
complete absence of evidence when speech
restrictions are at issue. Here, the Secretary offers only anecdote and speculation
to sustain the law, which is insufficient
S.Ct. 1174, 137 L.Ed.2d 369 (1997). In that
case, however, the challenged law was a
content-neutral restriction on speech, the legislative judgment concerned a complex regulatory regime in an area undergoing rapid
technological change, and the proposed law
was based on years of testimony and volumes of documentary evidence. Id. at 196,
199, 117 S.Ct. 1174. The law at issue here
is very different because it is a content-based
restriction on speech, the law does not address a complex regulatory problem, and the
legislative judgment is not based on evidence
concerning the existence of the alleged problem.
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