Burson v. Freeman – Oral Argument – October 08, 1991

Media for Burson v. Freeman

Audio Transcription for Opinion Announcement – May 26, 1992 in Burson v. Freeman

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William H. Rehnquist:

We’ll hear argument now in No. 90-1056, Charles W. Burson v. Mary Rebecca Freeman.

General Burson, you may proceed whenever you’re ready.

Charles W. Burson:

Mr. Chief Justice, and may it please the Court:

This case presents facial challenge to a Tennessee law which prohibits on election day campaigning within 100 feet to the entrance of the polling place.

To put this distance into perspective, this courtroom is almost 100 wide.

Now, the Tennessee Supreme Court suggested that 25 feet might meet constitutional muster.

As measured from where I stand, 25 feet goes to the second row of the press section.

It’s the State’s position that the decision of the Tennessee Supreme Court should be reversed and that the purposes served by this statute are of the highest import, and the limitation imposed on protected speech is minimal.

Each State should be permitted to fashion its election zone boundary in a manner tailored to its election-day conditions as long as that zone reasonably serves the purposes which justify it.

Laws similar to Tennessee have been outstanding over this country for the past century.

They have effectively served their purpose.

Sandra Day O’Connor:

How many States have such laws?

And do most of them provide for a 100-foot limit or what?

Charles W. Burson:

47 States have such laws.

The distances run from 25 feet to the maximum… Hawaii has 1,000 feet.

Most of them range between 50 feet and 200 feet.

100 feet is fairly typical.

I think something like 17 to 18 of the States have 100 feet.

David H. Souter:

General, when you say the States have such laws, do you mean they have laws regulating conduct not only in the polling place itself under the roof, but laws regulating areas outside?

Are there 47 that regulate outside the polling place?

Charles W. Burson:

47 regulate outside of the polling place; 3 other States have laws that regulate, but only in the polling place.

That’s only three States.

Sandra Day O’Connor:

General Burson, what are the purposes of those laws as you see them and in your State?

Charles W. Burson:

Well, political campaigns are emotionally charged events.

And I think we have to put it in the proper context.

They may be, for those campaigners and candidates, the most emotionally charged events in our national culture.

On election day, all of this emotion, excitement, and tension is focused right on the polling place.

Campaign workers aren’t always cool and reasoned on election day.

Polling places are in all kinds of neighborhoods, the peaceful and the rough.

The entrances to polling places form a natural bottleneck.

Charles W. Burson:

Now, if you allow campaigning at those bottlenecks, you’re going to get crowds.

Voters and campaign workers alike are going to intermingle.

The sale pitches are going to go through the crowd and over the crowd.

They will not always be softly spoken.

In many situations they’ll be shouting, jostling, and tempers may flair.

The effect of these conditions will be disorder, disruptive noise, reaching the polling place, delays in voting.

These conditions elevate the chances for voter intimidation.

Sandra Day O’Connor:

Are there other State laws governing interruption around the polls of voters… voter intimidation and that sort of thing?

Charles W. Burson:

Yes.

Tennessee has both voter intimidation laws and voter interference laws, and it’s our position that what the State has done and what the States have done is through these zones is created at prophylactic.

Once there is intimidation, once there in interference, the purposes of the State have been defeated.

They are basically after-the-fact type remedies.

Harry A. Blackmun:

General Burson, don’t some States also have other prohibitions such as use of the media on election day?

Charles W. Burson:

There have been–

Harry A. Blackmun:

By media I mean television, for instance.

Advertising on television.

Charles W. Burson:

–I’m sorry, I didn’t understand, Mr. Justice Blackmun.

Harry A. Blackmun:

I’m under the impression… as a matter of fact, I know my home State has a statute prohibiting political advertising on election day in television.

Does Tennessee have such a law?

Charles W. Burson:

They may so do… no, our… on election day, there’s plenty of advertising on TV on Tennessee in the morning, particular.

Harry A. Blackmun:

I must confess that when I came, we happened to live across the river in Virginia, that I was almost offended by the presence of people handing out literature within 25 feet of the polling place.

One would be put in the jug in Minnesota if he did that.

Charles W. Burson:

Well, let me make this.

Except for a limited situation, our… the primary concern is not just the annoyance, although we think at a certain point that does become a constitutionally protectable interest by the State.

But what the States are concerned with is this crowding.

The increased opportunity for the intimidation and for the interference.

It creates a zone which would… which much reduces the risk to have to apply, Justice O’Connor, those intimidation laws and the interference laws.

Now aside from that, aside from criminal intimidation and criminal interference, the crowd that gathers itself around the entrance to the polling place can be intimidating.

Voting cuts across all character types; all types of Americans go to vote.

And what may not be intimidating to a 30-year old lawyer going to the polls may well intimidate an elderly citizen going or a first-time voter.

Charles W. Burson:

And rather than choose to run the gauntlet, they may well just choose to turn around and go home.

And that defeats the purposes of maximizing voter participation.

Sandra Day O’Connor:

Now Tennessee’s law does not prohibit campaigning for a candidate in some other election and it doesn’t prohibit solicitation of commercial products and that sort of thing.

Is that right?

Charles W. Burson:

The latter part is right; the first part is not right.

Tennessee law prohibits the distribution of campaign literature–

Sandra Day O’Connor:

Whether it’s for that election or any other?

Charles W. Burson:

–Whether it’s for that election or a future election.

Sandra Day O’Connor:

But commercial products and so forth, there could be a Hari Krishna stand and so forth.

Charles W. Burson:

Well, there could be a Hari Krishna stand or there could be a hot dog vendor or selling tuna sandwiches.

Anthony M. Kennedy:

So in that respect then, is the statute content neutral?

Charles W. Burson:

We certainly would say that it is.

When you look at–

Anthony M. Kennedy:

How do we judge content neutrality?

By looking at the purpose for which the statute is passed?

Charles W. Burson:

–Well I think you look to see whether the regulation is only justified with reference to the content of the speech.

And in this case, there is no sinister inference, sinister as to the First Amendment, that offends the First Amendment as to why campaigning in Tennessee is prohibited, but other types of activities aren’t.

The reason the other activities aren’t prohibited is they have just never been a problem in Tennessee.

They just weren’t thought of when the legislature did this.

The legislature focused on election reform.

And when it thought of election reform, it thought of the problems that are created.

Sandra Day O’Connor:

Well, what about cases from this Court, such as Kerry and Mosley, where the Court has said that a State can’t regulate some but not all potentially disruptive expression?

Charles W. Burson:

I think what this Court, in looking and Mosley and Kerry, what those… where the legislature specifically exempted a labor picketing, and what the Court seemed to say was look, we can’t see any difference between labor picketing and other type of picketing.

They’ll both have the same type of effect.

So what the Court, it seems to me concluded was, that the statute was directed at a particular type of expression because of the content of that expression, and that’s labor picketing.

We just don’t have this.

I can’t… the failure to include a hot dog vendor or a book salesman or a Hari Krishna booth just has never been a problem in relation to elections.

There is… excuse me.

William H. Rehnquist:

Well, our cases have said, too, haven’t they, General, that the legislature can deal with the evil where it finds it.

It doesn’t have to go all the way if it doesn’t find the evil going beyond a certain point.

Charles W. Burson:

Absolutely.

That’s absolutely correct.

And if hot dog vendors become a problem and if the Hari Krishna groups become a problem, then the legislature could legislate to guard these same interests.

But that’s exactly right.

Anthony M. Kennedy:

If they became a problem and this statute remained on the book, would there then be an argument that the statute is no longer content neutral?

Charles W. Burson:

Well, certainly it would have been content neutral as passed, and in terms of the motivation.

Now to preserve it, would that mean that it would become unconstitutional at that point in time?

I think at that point in time it would begin to raise a question as to whether this was intended actually to serve those purposes.

I think that’s what the Court… that’s the standard that the Court has to look at in making that content-neutral determination.

Does the statute serve the purposes which it says justified, or does the regulation serve those purposes, and are those purposes related to the content of the speech.

And if you took your hypothetical far enough, you might begin to raise the… raise a question about what the real purpose of the statute was.

But that doesn’t exist here.

Sandra Day O’Connor:

General Burson, the regulation here would extend in some areas to public streets and public sidewalks, if they were within the 100-foot limit.

Is that true?

Charles W. Burson:

Yes, there may be a portion of a sidewalk that would be encompassed within the 100 feet.

And a street?

Charles W. Burson:

And some of them may even extend into a street.

Sandra Day O’Connor:

Does that affect the constitutional analysis at all, do you think, where it’s a traditional public forum that’s affected?

Charles W. Burson:

We don’t think that it affects the outcome.

Depending upon how you interpret this election zone as a public forum or not, even where it crosses a traditional public fora, you might have… if it’s a public fora, we would suggest the time, place, or manner restriction.

We would… express that the Court basically apply the balancing test that it applies when election laws are contested.

And further, we think there’s an argument, Justice O’Connor, that even where on this 1 day both private and public places are taken over by the Government, taken control of and administered by the Government for this one purpose, that an argument could be fashioned and is very credible that even where it hits a sidewalk, that that, in fact, is a nonpublic fora.

Byron R. White:

Suppose if the town can give a group a parade permit that in effect preempts 10 blocks of a city street that other people can’t drive down in their cars, they can’t occupy the place.

That part of the street is reserved for a specific purpose.

And you’re just suggesting, I suppose, that this part of the street is… within 100 feet are reserved for voting purposes.

Charles W. Burson:

Yes.

I think that is one of the things we are suggesting.

Just if you have a street fair where the area of both the sidewalks and the street are roped off–

Byron R. White:

And I suppose if this statute is immediately suspect because of lack of content neutrality, I suppose that so would a statute which prevents electioneering inside the voting booth itself.

Charles W. Burson:

–And no other activities.

Byron R. White:

Or within 25 feet.

Charles W. Burson:

25 feet, Your Honor, we would suggest is purely a difference of degree, and not in kind.

And if 25 feet is okay, 100 feet is okay.

Anthony M. Kennedy:

Does the statute permit 300 foot limits in certain counties?

Charles W. Burson:

No, the statute has a provision in it for 300-feet limit.

That is not operative.

Our office issued and opinion basically based upon State constitutional grounds that said the population classifications as to that 300-foot limit were not rational, and under specific provision of our State constitution, it would not stand.

Byron R. White:

Does your statute permit official poll watchers to… within 100 feet?

Charles W. Burson:

The statute actually allows poll watchers inside the polling place.

It allows, I think, one per candidate, and two per political party.

But that’s very closely regulated in terms of–

David H. Souter:

Would your argument allow a State to enact a statute designating certain traditional public forums, portions of sidewalks or public parks and so on, as sort of free zones solely for recreation or commerce so long as they did not do so based on, at least on the content of the speech that might otherwise take place there?

Charles W. Burson:

–Do you mean outside the context of the election zone?

David H. Souter:

Yeah, how broad is your principle of the State may sort of eliminate the traditional public forum character of public forums?

Charles W. Burson:

Well, I think there are laws that do regulate your use.

For instance, there’s a law that requires you to get a permit.

You could take… if you’re going to have 5,000 people at a public park or something, you have to take out a permit that’s regulated.

And you can then cut that area off for those exclusive purposes.

David H. Souter:

Well, how about my examples?

Sort of communication-free zones where people can go and not be bothered in otherwise public forums?

Is the State on your theory free to do that?

Charles W. Burson:

I would say that our theory is that what we are expressing is limited to these election zones.

You have to look at the very fundamental interests and what the State’s duty is that would justify such a zone.

And that’s as far as we’re going in this argument.

What… it appears to us that the court, the Tennessee Supreme Court, failed to address this issue in a real-world context.

It basically took the theoretical proposition that because all subject matter was not included, that that, per se, triggered content based.

We’ve discussed that before and we do not think that is a proper approach.

We think more inquiry needs to go beyond that to determine whether or not the purposes are justified without reference to the content of the speech.

But basically they failed to consider this in a real-world context, and that’s also revealed in its failure to deal with the substantive constitutional legal distinction.

The concluding analysis of the Tennessee court demonstrates this.

Charles W. Burson:

The court suggested 25 feet might meet constitutional muster.

It must be assumed, then that the court recognized the State’s constitutionally protectable interest outside the polling place.

However, the alternative that the court suggested, 25 feet instead of 100 feet, is one of degree.

Such a difference doesn’t have a constitutional significance.

It’s not a true alternative in kind.

If I might, the dissent in this case–

John Paul Stevens:

But if that argument is valid, I suppose it would be okay to have 3,000-foot limit.

Charles W. Burson:

–I think that question, Justice Stevens, goes to the one that Justice Kennedy raised.

The State would have to be able to show that the statute is fashioned to serve these legitimate purposes which justify them.

There is a point that you could get out which brings into question the true purpose of the statute.

John Paul Stevens:

And the Tennessee Supreme Court said 100 feet is too much, but 25 feet isn’t.

Why is that any more a matter of degree than your argument about 3,000 feet against 100?

Charles W. Burson:

Well, we would… we would suggest that it is.

Just like in Buckley, the difference between 2,000 feet and 1,000 feet was a difference in degree, I think the Court can observe for itself 25 feet to the end of the press section, and almost 100 across this is… the same issues are implicated.

John Paul Stevens:

But one of the differences the court pointed was that the evidence, as I remembered, really related to what happened either in the polls or right outside the door.

And that if you go the full 100 feet, you pick up the sidewalk and so forth in some areas.

Charles W. Burson:

Well, you know, this was basically a facial challenge.

The evidence, quite frankly, was very skimpy.

I could draw as many hypotheticals whether 25 feet went onto a sidewalk or went into the street.

Once you acknowledge… it’s our position, once you acknowledge the interest outside the polling place, then it’s the legislature, and there should be a presumption of constitutionality, who is in the best position, through experience and the studies they’re able to do, to determine what that appropriate distance would be.

John Paul Stevens:

Another thing I think they said you didn’t… there no evidence of any studies here.

Charles W. Burson:

Well, there was an… there was an extensive… there was an extensive law review commission, although they were fairly conclusory in the results.

We would point to the Court’s decision in Monroe, which suggests, and we think it’s perfectly fitting here, that the State in these type of cases, shouldn’t have to suffer the harm before it addresses the problem and that the State, to sustain these facial challenges, the State is not required to put on the specific proof of the damage and the confusion and the overcrowding.

John Paul Stevens:

Of course, I suppose the Tennessee Supreme Court has more knowledge about local conditions than we do.

Charles W. Burson:

Well, we would suggest that–

John Paul Stevens:

And I noticed also they relied in part on the Tennessee constitution, didn’t they?

Charles W. Burson:

–No, sir.

It was raised and then never mentioned again.

The constitutional provisions were raised–

John Paul Stevens:

Well, they mentioned it in their opinion.

Charles W. Burson:

–Right in the beginning, but this was solely decided upon the First and Fourteenth Amendment and the way the Tennessee Supreme Court construed the decisions of this Court.

Harry A. Blackmun:

That’s correct.

General Burson, what is the situation in Tennessee elections today?

Is there a stay in effect at all?

Charles W. Burson:

Well, I think that’s very interesting, Justice Blackmun.

After this decision, there was nothing to prohibit this.

There was an election coming up in November, and I think the decision came down in October.

They struck this statute down and there was nothing to preclude this type of electioneering.

The State, we went in and asked for a stay.

The argument was raised that well, there are these criminal statutes in effect that will take care of this problem, and the supreme court stayed its decision.

So as of today the law is… they determine unconstitutional, is still outstanding in Tennessee.

I’d like to reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, General Burson.

Mr. Herbison, we’ll hear now from you.

John E. Herbison:

Mr. Chief Justice, and may it please the Court:

In order to understand why the opinion of the Supreme Court of Tennessee is correct, both in its result and in its reasoning, it is necessary to examine exactly how this statute, which is a criminal statute, affects free speech at polling places.

The statute operates basically in three different geographical locations.

The statute prohibits the solicitation of votes, display, or distribution of campaign literature or materials inside the polling place itself.

That is not the subject of the plaintiff’s challenge to this statute.

The plaintiff has never averred any intention to solicit votes inside the polling place and they–

Sandra Day O’Connor:

Well, Mr. Herbison, would you think the same standard and test should be applied to regulations inside the polling place as outside?

John E. Herbison:

–Justice O’Connor, inside the polling place, the State’s interest is monumentally greater than outside.

Inside the polling place, the election is actually being conducted.

There is a much greater risk inside the polling place of interference with the election officials’ duties or with interference with the actual conduct of the election.

Sandra Day O’Connor:

So you think there’s just a more compelling State interest inside.

Is that it?

John E. Herbison:

That is correct, as the Supreme Court of Tennessee found.

Sandra Day O’Connor:

Otherwise the test applied would be the same.

It’s just the value or weight you place on the State’s interest in your analysis?

John E. Herbison:

It is the same test.

John E. Herbison:

And we submit that the court below reached the correct conclusion that the State’s interest is greater inside… inside the building.

Sandra Day O’Connor:

Do you defend the court’s decision that the regulation can extend to 25 feet but not 100?

John E. Herbison:

Well, clearly a 25-foot boundary would be more nearly constitutional than the 100 or 300-foot boundary currently enforced.

I beg your pardon?

Antonin Scalia:

75 feet more… closer.

So what’s your answer?

John E. Herbison:

However, we do not–

Sandra Day O’Connor:

Do you defend the holding of the court or not?

John E. Herbison:

–We do not.

If it were a regulation that, as this one does, singled out core political speech within that 25-foot radius, we submit that that hypothetical statute would suffer from the same defect as the current 100-foot or 300-foot boundary.

Outside the polling place, a radius of 100 feet in most of the State, of 300 feet in some counties… and that 300-foot boundary has not been addressed by any court, even though the Attorney General has given an opinion that that violates the State constitution.

It is still in force and has not been addressed by any court, the distinction between 300 feet and 100 feet.

In light of the disposition that the Tennessee Supreme Court made in this case, it was not necessary for them to reach that, even though it was raised in the pleadings.

Within that prohibit… within that radius, the solicitation of votes, display or distribution of campaign materials or literature is outlawed.

In cases where the grounds of the polling place extend beyond the 100-foot or 300-foot buffer zone, on the areas outside the buffer zone and still on the grounds of the polling place, it would appear that purely verbal solicitation is permitted, but the display of material is still prohibited on the grounds of polling places.

The kinds of things forbidden by this statute extend to a campaign worker carrying a political sign.

A voter wearing a tee-shirt with the name of his preferred candidate going into the polling place would risk criminal prosecution.

A broad range of pure political speech is prohibited by this statute, and the statute reaches only pure political speech, which this Court has repeatedly recognized is deserving of the greatest level of First Amendment protection.

Byron R. White:

Suppose two friends go to the polls together and they’re supporting different candidates, and as they get within the 100-foot area, they’re supposed to quit trying to confer to each other.

John E. Herbison:

That would be correct, at least to the extent of any kind of solicitation of one of the other to vote his way.

That would be prohibited.

Sandra Day O’Connor:

Would the statute prohibit a person from driving down a public street that was within the 100-foot limit with a bumper sticker on the car that was in support of a candidate?

John E. Herbison:

This statute would prohibit that.

That would clearly be the display of campaign material.

Byron R. White:

Well, that may be.

The statute wouldn’t necessarily be void on its face just because of that.

John E. Herbison:

Not necessarily just because of that.

However, singling out pure political speech and leaving other messages unaffected presents clear First Amendment problems.

Antonin Scalia:

Mr. Herbison, you say it creates a First Amendment problem because you’re relying on something called the traditional public forum doctrine.

Don’t you take the traditional public forum with the limitations that tradition imposes upon traditional public forums?

John E. Herbison:

Justice Scalia, in this case we have a public forum property dedicated… have properties dedicated to expressive activity by governmental fiat, that is, voting.

Antonin Scalia:

But that’s my point.

Has it been dedicated under the traditional public forum doctrine?

As General Burson pointed out, there are a lot of these statutes now, but not only are not… are they around now… the earliest one I find goes back to 1875.

And between 1889 and 1905, there are at least 22 States that had statutes like this, and another 6 that had statutes completely barring people within 100 feet.

So don’t you take the traditional public forum doctrine the way you find it?

And it seems to me that this has been done a long time.

John E. Herbison:

Well, Your Honor, this is, we submit, is a case of the public forum by Government fiat.

This Court recognized, United States v. Classic, that voting is expressive activity.

It is the expression by electors of their choice of candidates.

Antonin Scalia:

Well, maybe you want to give the doctrine a new name then?

We should not call it the traditional public forum doctrine since we are not at all adverting to what tradition said about it.

I mean, what I’m saying is this has been going on for at least a century, indeed for probably half a century longer than there was even such a thing as the traditional public forum doctrine.

We either have to rename the doctrine or come out against you in this case, I think.

John E. Herbison:

Well, whatever label this Court chooses to affix is–

William H. Rehnquist:

A nontraditional public forum doctrine.

John E. Herbison:

–Of course, there is an element of the public forum doctrine that addresses properties which are public forum by governmental edict, which is, we submit, what we have here.

Voting is expressive activity.

Discussion of candidates and qualification of candidates is an integral part of the electoral process.

This Court recognized such cases as Mills v. Alabama–

William H. Rehnquist:

Mr. Herbison, to follow up on Justice Scalia’s inquiry, you say this is… this area is dedicated to expressive activity, i.e., voting.

But it’s dedicated with the proviso that you can’t electioneer within 25… or within 100 feet.

I mean, you have to take the proviso as well as the dedication, don’t you?

John E. Herbison:

–Well, we submit the legislature is not empowered to impose that kind of restriction singling out a particular type of speech.

It’s clear that the legislature cannot prohibit discussion of candidates on election day, as was the case in Mills v. Alabama.

There was dictum in that case suggesting that conduct at polling places can be regulated.

But that case stands for the proposition that speech, especially pure political speech, is entitled to greater protection than communicative conduct.

This is a case where we have pure speech restricted and not even all political speech is prohibited within this buffer zone, contrary to General Burson’s assertion.

The State’s witness clearly testified that political solicitations on behalf of candidates who are not on that day’s ballot are permitted within the 100-foot boundary… pages 40… excuse me, pages 43 and 44 of the joint appendix, before this Court is the first time that the Attorney General has tried to put any distance between the State’s position and the State’s witness’ position.

To illustrate the operation of the statute, Tennessee holds presidential preference primaries in March, and in August, holds another primary election for various other offices… United States Senator, Governor, United States House of Representatives, and some others.

John E. Herbison:

According to the testimony of the State’s witness, Ms. Freeman could lawfully stand 10 feet away from the door of a polling place in August of 1992, advocate the reelection or defeat of President Bush, who is not on that day’s ballot but who would be on the November ballot 3 months later.

However, if her message were reelect Congressman Clement, then she would risk going to jail.

The focus of the statute, the narrow focus on a particular political candidate strongly suggests that the legislative intention was to suppress speech related to particular speech when interest in that particular message was at its peak.

The statute also restricts, not only restricts the right of political campaign workers to speak, it restricts the right of voters to receive information.

This Court has recognized that First Amendment protects the right to receive information as well as the right to disseminate it.

The Supreme Court of Tennessee correctly applied the strict scrutiny test, correctly found that this is clearly a content-based statute because it reaches only one category of speech.

The Attorney General takes the position that this is merely a time, place, and manner regulation.

Antonin Scalia:

Mr. Herbison, suppose you have a municipally owned subway or trolley car line which carries advertising, but decides not to carry political advertising, just because it upsets people.

They’re hassled enough on the way home from work, and they don’t have to look at partisan political posters, so they just ban political advertising to this captive audience, because the people have to ride the subway or the trolley home.

Is that constitutional?

John E. Herbison:

Well, certainly the Lehman decision suggests that it is.

Antonin Scalia:

Suggests that it is because it’s sort of a captive audience, right?

And isn’t it sort of a captive audience, when the only way you can get to the polling place is to run the gauntlet of electioneering?

But I don’t want to listen to electioneering.

I mean, suppose I’m a citizen saying, you know, I’ve read the papers, I’ve made up my mind.

I don’t want to be hassled by these people.

Now you’re free to hassle me, but I’m free not to be hassled in a coerced situation.

Isn’t that a reasonable basis for these statutes?

John E. Herbison:

Well, this Court has recognized that the reaction of a listener to speech projected his way is not a valid basis for limiting First Amendment rights.

Cases decided more recently than Lehman–

Antonin Scalia:

With listeners in a captive situation?

John E. Herbison:

–Well, a listener is to some extent in a captive situation here, but not to the same extent as in Lehman.

Only if he wants to vote.

John E. Herbison:

This is the kind of situation that presupposes a speaker and a willing listener if… well, the purpose of the speaker being here is to persuade the voter to cast his vote in a particular manner.

Where the voter clearly does not want to be bothered, the campaign worker will surely give that voter a wide berth, let him proceed on to the polling place.

However, in the case of a willing listener, who is willing to stand aside, out of the flow of traffic, and listen to the campaign worker’s pitch, that’s not a captive audience situation.

Human nature is going to be basically regulated–

Antonin Scalia:

These workers are not allowed to say there, just repeating, you know, vote for so and so, he’s a fine man.

He believe in family… he’s just shouting that at the top of his lungs.

Could a worker do that under your theory.

Antonin Scalia:

He could do that, couldn’t he?

John E. Herbison:

–He could do that so long as–

Antonin Scalia:

So you say I have to plug my ears just as the person coming home from work in the subway will just have to cover his eyes.

Just don’t look at the political poster if you don’t want to look at it.

But I suggest that we haven’t held that with respect to political posters in the subway, so why should we do it, why should we hold that with respect to political chance at the polling booth?

John E. Herbison:

–In the case of the subway or public transit, the government is operating in essentially a proprietary capacity.

In the case of a polling place, the government, or at least the State government makes only limited temporary use of the facilities.

This is not a case like a subway car or like the post office where the government is operating in a proprietary capacity.

The Attorney General contends that this is merely a time, manner, and place regulation.

We submit that that is incorrect.

But even if that contingent were correct, even if the statute were content neutral, this statute prohibits a broad range of speech, far more than is necessary to achieve the asserted justifications for the statute.

Even under the time, place, and manner test, this statute is not narrowly tailored to achieve the asserted ends.

The Government’s only justification asserted before the trial court was the prospect of interference with the voting process, overcrowding of the polling room itself.

And there is really no proof, as the State court noted, to suggest that activity outside the polling place is going to have an adverse effect on the conduct of the election inside.

Therefore, no matter what the standard of review is, the strict scrutiny that the State court applied, or the time, place, and manner regulation that the Attorney General contends for, this statute fails either test.

We submit that the Supreme Court of Tennessee reached the correct result and applied the correct reasoning.

If the Court has no further question, that concludes my remarks.

William H. Rehnquist:

Thank you, Mr. Herbison.

General Burson, do you have rebuttal?

Charles W. Burson:

Very brief, I hope, Your Honor.

The question was raised about the State’s position regarding someone advocating the election of someone that was not on the ballot.

And I think Justice O’Connor started with that question.

On page 11 of respondent’s brief, they set the predicate for that up.

They say the State’s witness testified that a person is permitted to distribute handbills within the 100-foot boundary on behalf of a political figure who is not standing for election on that day’s ballot.

However, the record on page 43 of the appendix, the testimony was: Question: Okay, if a person were distributing handbills on behalf of a political figure who was not standing for election on that day, could that person do that inside the 100-foot boundary.

The unequivocal answer was no, they could not.

So we would say the predicate for that position is not there.

There was a further discussion, could someone on the ballot just generally hand out literature that said they had a good record.

There was a suggestion, well, if they were on the ballot they couldn’t.

If they weren’t on the ballot, they could.

Charles W. Burson:

But it is clear… a reading of the statute… it doesn’t distinguish between whether it’s on the ballot or not on the ballot if it’s campaign activity.

The Tennessee Supreme Court has clearly defined campaign activity as that which is outcome determinative advocacy.

It’s the position, and clearly the position, of the State that such conduct would be prohibited.

One other point.

It’s not just what goes on outside of the polling place, but also if you’ve got a crowd, and you’ve got the noise, and you’ve got the campaign happen… taking place either right outside of the polling place, which is what respondents advocate, or even within 25 feet, we would suggest that noise is going to reach inside the polling place.

And that noise, in and of itself, is going to distract polling officials.

John Paul Stevens:

Let me just, on… your correction on page 43, just as a point of information.

There was also a question about distributing handbills that say abortion is murder, would that be permissible or not permissible?

Charles W. Burson:

I think we would have to apply the standard is outcome determinative advocacy.

Obviously if there were an abortion question on the ballot–

John Paul Stevens:

No, the assumption was there was no abortion question on the ballot, but presumably some candidates might have views one way or the other on abortion.

Charles W. Burson:

–Just a… it’s kind of, I guess, like the Hari Krishna… if somebody is just saying we’re for or against–

John Paul Stevens:

This not really… this is not a very improbable example, I don’t think.

Charles W. Burson:

–We’re for or against… no, but it really… it just–

John Paul Stevens:

Let’s say they had something, reduce the deficit, or I’m against high taxes, no more taxes.

Charles W. Burson:

–I think that just a general statement that was not directed at an outcome either for this or another election would be permitted.

John Paul Stevens:

You don’t think that would be as likely to provoke fisticuffs as the–

Charles W. Burson:

Well, you know, it might if it were happening, and if that became the case, the State is empowered to restrict that.

John Paul Stevens:

–Yeah, but this statute wouldn’t restrict it.

Charles W. Burson:

This statute, if it’s not outcome determinative advocacy, this statute would not prohibit it.

Anthony M. Kennedy:

And what about tee-shirts and campaign buttons?

Charles W. Burson:

Tee-shirts and campaign buttons are restricted under this statute.

Anthony M. Kennedy:

So a voter cannot wear a little campaign button going into–

Charles W. Burson:

A voter is asked to take the campaign button off as they go in.

It’s our position… look, buttons and tee-shirts and hats and signs are all part of campaigning activity.

They all implicate and invite the same problems.

When you start–

Sandra Day O’Connor:

–And a bumper sticker on a car driving by on the street that happens to fall within the 100-foot limit?

Charles W. Burson:

–Yeah.

That is a hypothetical–

Covered by the statute.

Charles W. Burson:

–We would suggest that if someone were to get arrested for that, you’d have to look at it on an as-applied basis.

We don’t think it implicates this statute.

Sandra Day O’Connor:

There’s no exception in the statute to take it out of it.

Charles W. Burson:

No.

There’s not an exception to the statute.

Sandra Day O’Connor:

Or the car that parks in the parking lot within the 100-foot limit and has bumper stickers on it for candidates.

Charles W. Burson:

That is not an exception in the statute.

Antonin Scalia:

Of course… perhaps with good reason.

I mean, some people… you know, maybe in Chicago, at least, somebody might intentionally drive down the street with a bumper sticker on, or intentionally park his car within 100 feet of the polling place.

That might happen, mightn’t it?

Charles W. Burson:

Exactly.

And what you’re looking at is, is it campaign activity.

Are they doing this to advocate the candidacy within that zone.

That’s exactly what we’re looking at.

Certainly, there may well be a due process problem in an as-applied situation or some other place as applied, but it doesn’t implicate this statute facially.

If there are no further questions, thank you very much.

William H. Rehnquist:

Thank you, General Burson.

The case is submitted.