234
502
189 L.Ed.2d
—, 134 S.Ct. 2518, 2530,
(2014) (dictum); Globe Newspaper Co. v.
Pokaski, 868 F.2d 497, 505 (1st Cir.1989);
but cf. Williams-Yulee v. Fla. Barr —
135 S.Ct. 1656, 1671, 191
U.S. -,
(2015) (narrow tailoring does
570
L.Ed.2d
not require perfect tailoring even when a
content-based speech restriction is under
review).
Among other reasons, a law is not narrowly tailored if it is significantly overin-clusive. See Brown, 131 S.Ct. at 2741;
Simon & Schuster, Inc. v. Members of
N.Y. State Crime Victims Bd., 502 U.S.
105, 121, 123, 112 S.Ct. 501, 116 L.Ed.2d
476 (1991); First Nat’l Bank of Boston v.
Bellotti, 435 U.S. 765, 794-95, 98 S.Ct.
1407, 65 L.Ed.2d 707 (1978). For example,
in Simon & Schuster, Inc. v. Members óf
New York State Crime Victims Board, the
law at issue required that an accused or
convicted criminal’s income from works describing his crime be deposited in an escrow account and made available to the
victims of the crime and the criminal’s
other creditors. 502 U.S. at 108, 112 S.Ct.
501. The Supreme Court held that the
law was a “significantly overinclusive”
means of ensuring that victims are compensated from the proceeds of crime, and
therefore the law was not narrowly tailored. Id. at 121, 123, 112 S.pt. 501. Describing the reach of the statute, the Court
stated:
Should, a prominent figure write his autobiography at the end of his career, and
include in an early chapter a brief recollection of having stolen .... a nearly
worthless item as a youthful prank, the
[government entity]..would control his
entire income from the. book, for five
years, and would make that income
available to all. of the author’s creditors ....
Id. at -123, 112 S.Ct. 501. That is, the
statute applied to a wide range of literature that would not enable a criminal to
profit while a victim remained uncompensated. Because the law covered far more
material than necessary to accomplish its
goals, the Court held that the statute was
vastly overinclusive and therefore not narrowly tailored. Id.
Here, like the law at issue in
Simon & Schuster, the 2014 amendment to
RSA 659:35,1 is vastly overinclusive and is
therefore not narrowly tailored to further
a compelling interest. Even if the Secretary could demonstrate that New Hampshire has an actual problem with either
vote buying or voter coercion and that
allowing voters to display images of their
ballots would exacerbate either problem,
the means that the state has chosen to
address the issue will, for the most part,
punish only the innocent while leaving actual participants in vote buying and voter
coercion schemes unscathed. As the complaints of the voters who are now under
investigation reveal, the people who are
most likely to be ensnared by the new-law
are those who wish to use images of their
completed ballots to make a political point.
The few who might be drawn into efforts
to buy or coerce their votes are highly
unlikely to broadcast their intentions via
social media given the criminal nature of
the schemes in which they have become
involved. As a result, investigative efforts
will naturally tend to focus on the low-hanging fruit of innocent voters who simply want the world to know how they have
voted for, entirely legitimate reasons.
When content-based speech restrictions
target .vast amounts of protected political
speech in an effort to address a tiny subset
of speech that, presents a. problem, the
speech restriction simply cannot stand if
other less restrictive alternatives exist.
Because the 2014 amendment is a content-based restriction on speech, it falls to
the government to demonstrate that less
speech-restrictive alternatives will not
work. Playboy, 529 U.S. at 816, 120 S.Ct.
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