Restrictions on ballot slogans violate free speech

August 3, 2020   •  By Ryan Morrison   •    •  ,

This piece originally appeared in the The Star-Ledger on July 30, 2020.

 

If you voted in the primary, you probably noticed a short slogan printed next to each candidate’s name. State law allows for these slogans, but they come with an unconstitutional catch.

The slogan laws allow candidates to use a six-word slogan on the ballot, but the slogan cannot refer to the name of any person or any New Jersey association without their consent. This violates a candidate’s free speech rights. In America, we do not have to ask permission to speak. And we do not give the government the power to decide what we can and cannot say.

That is why the Institute for Free Speech filed a lawsuit on behalf of Democratic congressional candidates Eugene Mazo and Lisa McCormick to strike down the ballot slogan laws for violating the First Amendment.

Mr. Mazo, a political newcomer, wanted to use slogans that mentioned the names of local organizations, but he could not get approval from the groups. Accordingly, he used “Essex County Progressive Democratic Committee, Inc.,” “Hudson County Progressive Democratic Organization” and “Progressive Democratic Organization of Union County.”

This is typical of how politics works in New Jersey.

Political operatives will incorporate certain political phrases to prevent candidates from using them. For instance, Ms. McCormick wanted to use “Not Me. Us.,” as her slogan for the primary election ballot. But state officials informed her that this slogan referred to the name of a New Jersey incorporated association.

Subsequently, she tried to use “Bernie Sanders Betrayed the NJ Revolution,” but did not have authorization from Sanders. Ultimately, she used “Democrats United for Progress.”

But it should not have come to this.

Mr. Mazo’s and Ms. McCormick’s slogans were regulated because of the message they wanted to express. The U.S. Supreme Court requires these “content-based” speech regulations to pass “strict scrutiny,” the highest level of constitutional scrutiny. And New Jersey’s slogan laws, like virtually all other content-based speech regulations, cannot pass the test.

Apart from the legal issue, the slogan statutes are foolish. A candidate cannot state that he is a “Ronald Reagan Republican” or “JFK Democrat,” because former Presidents Reagan and Kennedy are deceased and cannot provide authorization unless the candidate finds someone else named “Ronald Reagan” or with the initials “JFK” who gives permission. Alternatively, someone could create Elizabeth Warren, Inc. and be authorized to list her name in the slogan.

The slogan statutes would also allow a candidate to falsely imply she is endorsed by the governor if she knows someone with the governor’s name who is willing to authorize it. And because the slogan statutes only require the authorization of New Jersey entities, a candidate could farcically, but legally, state she is “Endorsed by The New York Times” but not by a New Jersey newspaper, regardless of whether either statement is true.

New Jersey’s slogan statutes violate the First Amendment and do a disservice to both candidates and voters. They should be declared unconstitutional so candidates can communicate freely on the ballot.

Ryan Morrison

Ryan Morrison

https://www.ifs.org/author/rmorrison/

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