Supreme Court smacks down liberal double standard on free speech
Religion & Liberty Online

Supreme Court smacks down liberal double standard on free speech

Last week the Supreme Court struck down a Minnesota law that banned voters from going to the polls while wearing T-shirts, buttons and similar items containing politically charged messages. On the surface the issue may seem to be a trivial matter—at best a minor win for self-expression. But the court ruling was major victory against the double standards of the political left.

As I wrote back in March, the case of Minnesota Voters Alliance v. Mansky concerned a Minnesota statute that broadly banned all political apparel at the polling place. When Andrew Cilek went to vote in 2010, he wore a shirt bearing the image of the “Don’t Tread on Me” flag and a button that read “Please I.D. Me.” The poll worker asked him to remove the shirt and button because it supposedly violated the state law.

Cilek filed a lawsuit opposing the regulation as an infringement on his First Amendment right to political expression. He also noted that the standard for what is acceptable is arbitrary and the enforcement itself could be politicized since the polling workers are chosen by local political parties.

In the oral arguments, Justice Alito agreed that the law does seem arbitrary and observed that “so many things have political connotations, and the connotations are in the eye of the beholder.” How could any poll worker, he asked, be even-handed in enforcing the regulation?

Daniel Rogan, who defended the statute for the state before the Court, responded that the political speech being conveyed by the wearer had to be “understood as relating to electoral choices and it has to be well-known.”

Alito said “that makes it worse” since the poll worker applying the “reasonable person” standard has to not only recognize the clothing is political speech but well known political speech.

Rogan answered that what the standard meant was it would have to be something a reasonable person would consider “clearly political” and “something that’s going to be reasonably understood by voters in the polling place.” What followed was a line of questioning by Judge Alito that will go down in the history books as a prime example of liberal cluelessness and hypocrisy.

The exchange has to be seen in full to appreciate the devastating effect, so I’ll reprint each part and note which examples of clothing Rogan considers “political” and what he views as “not political”:

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.

Rogan’s conclusion: A symbol for a liberal cause (gay rights) is not political (unless there is something directly related to the issue on the ballot), and thus would be allowed.

JUSTICE ALITO: How about a shirt that says “Parkland Strong”?

ROGAN: No, that would – that would be — that would be allowed. I think -­ I think, Your Honor -­

JUSTICE ALITO: Even though gun control would very likely be an issue?

[Rogan hems and haws for a few moments while Alito pins him down]

ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -­

Rogan’s conclusion: A symbol for a liberal cause (gun control) is notpolitical, and thus would be allowed.

JUSTICE ALITO: Okay. How about an NRA shirt?

ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -­

Rogan’s conclusion: A symbol for a conservative cause (gun rights) would be political, and thus not allowed.

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

ROGAN: Your Honor, I — I – I think that that could be viewed as political, that that — that would be — that would be –

Rogan’s conclusion: The text of an Amendment to the U.S. Constitution would be considered political because it is primarily supported by conservatives, and thus not allowed.

JUSTICE ALITO: How about the First Amendment?

ROGAN: No, Your Honor, I don’t -­I don’t think the First Amendment. And, Your Honor, I -­

CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?

ROGAN: It would be allowed.

Rogan’s conclusion: The text of an Amendment to the U.S. Constitution would not be considered political because it’s supported by people other than just conservatives, and thus would be allowed.

ALITO: . . . How about a Colin Kaepernick jersey?

ROGAN: No, Your Honor, I don’t think that that would be under — under our statute. And I think -­

Rogan’s conclusion: The jersey of a football player best known for his left-leaning political activism with the Black Lives Matter movement would not be political, and thus would be allowed.

JUSTICE ALITO: How about “All Lives Matter”?

ROGAN: That could be, Your Honor, that could be — that could be perceived as political.

Rogan’s conclusion: Text considered to be in opposition to the Black Lives Matter movement would be considered political, and thus not allowed.

JUSTICE ALITO: How about an “I Miss Bill” shirt?

ROGAN: I’m sorry, Your Honor? I didn’t -­
JUSTICE ALITO: “I Miss Bill,” or to make it bipartisan, a “Reagan/Bush ’84” shirt?

ROGAN: Yes, Your Honor, I believe that that’s political.

Rogan’s conclusion: Wearing clothes referring to politicians who have been out of office for decades is political, and thus not allowed.

I don’t know much about Mr. Rogan, but I suspect that most people would consider him to be a reasonable person. Yet when asked to apply the “reasonable observer” standard, Rogan consistently considered views on the left to be “non-political” and views on the right to be “political.”

A seven-justice majority of the Supreme Court disagreed with Rogan, ruling that Minnesota’s political apparel ban violates the Free Speech Clause of the First Amendment. The Court held that the State might reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning, but Minnesota’s application was not reasonable. In the majority opinion, Chief Justice Roberts says,

Election judges “have the authority to decide what is political” when screening individuals at the entrance to the polls. We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it.

Roberts is correct that an election judge’s own politics may shape his views on what counts as “political.” And compounding the problem is that too many on the left don’t consider their view to be “political.”

The late novelist David Foster Wallace tells an old joke about fish and water that can help us see the problem:

“There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”

There’s also an old saying that fish are the last to discover water. Something similar could be said about liberals and their left-leaning bias. They are the last to discover political bias because they assume what they believe about the world is the standard by which all other views must judged. While other people are being “political” they are merely being “reasonable.”

Christians should be concerned about what it means for us to trust our most sacred rights—especially our rights to speech and religious freedom—to such “reasonable observers.” Fortunately, the Supreme Court has put a small, but significant check on the political left’s double standards.


Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).