233
when it is applied to a content-based restriction on speech.
The Secretary invokes the Supreme
Court’s plurality decision in. Burson v.
Freeman to support his claim that contentbased speech restrictions can be justified
without evidence that compelling state interests are under actual threat. There,
the statute under review established a
buffer zone around polling places to protect voters from solicitation and the distribution of campaign materials. Burson,
504 U.S. at 193-94, 112 S.Ct. 1846 (plurality opinion). In sustaining the statute
against a First Amendment challenge, the
plurality relied heavily on historical evidence demonstrating that predecessor
statutes to the one under review had been
adopted long ago to respond to a situation
in which “[ajpproaching the polling place
... was akin to entering an open auction
place.” Id. at 202, 112 S.Ct. 1846. The
Court concluded that it was appropriate
for the state to act without evidence of a
current problem in part because the “long,
uninterrupted and prevalent” use of similar statutes throughout the United States
made it difficult for the state to determine
what would happen if the challenged law
were invalidated. Id. at 208, 112 S.Ct.
1846.
Burson, however, is a very different
case from the one I decide today. In
contrast to the statute at issue in Burson,
the 2014 amendment to RSA 659:35, I is
quite new and cannot be tied to historical
evidence of recent vote fraud. Although it
is true that vote buying was a problem in
this country before the adoption of the
Australian ballot, the historical record establishes that vote buying has not been a
significant factor in elections in more than
100 years. Further, because the law at
issue here is new and the technology it
targets has been in use for many years, it
is reasonable to expect that if the problem
the state fears were real, it would be able
to point to some evidence that the problem
currently exists. Under these circumstances, both history and common sense
undermine rather than support the state’s
contention that vote buying and voter coercion will occur if the state is not permitted
to bar voters from displaying images of
their completed ballots.
Because the Secretary has failed to
demonstrate that the law serves a compelling state interest, it fails to satisfy strict
scrutiny.
2. Narrow Tailoring
Even if the Secretary had proved that
the new law serves a compelling interest, it
would still fail the strict scrutiny test because it is not narrowly tailored to address
the alleged state interests.
When the government attempts to restrict speech in order to further a state interest, it ordinarily must
demonstrate that the restriction “ ‘is narrowly tailored to achieve that interest.’”
Reed, 135 S.Ct. at 2231 (quoting Am. Free
Enter., 131 S.Ct. at 2817). Even content-neutral restrictions require narrow tailoring because “silencing speech is sometimes
the path of least resistance ... [and] by
demanding a close fit between ends and
means, the tailoring requirement prevents
the government from too readily ‘sacrific[ing] speech for efficiency.’” McCullen
v. Coakley, — U.S. -,
134 S.Ct. 2518,
2534, 189 L.Ed.2d 502 (2014) (quoting Riley v. Nat’l Fed’n of the Blind of N.C.,
Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101
L.Ed.2d 669 (1988)). This tailoring requirement is even more demanding when
the state elects to restrict speech based on
its content. In such cases, the burden is
on the state to demonstrate that the restriction it has adopted is the “least restrictive means” available to achieve the
stated objective. Ashcroft v. ACLU, 542
U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d
690 (2004); McCullen v. Coakley, — U.S.
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