United States Court of Appeals 

For the First Circuit 

No. 15-2021 

LEON H. RIDEOUT, ANDREW LANGLOIS, BRANDON D. ROSS, 

Plaintiffs, Appellees, 

v. 

WILLIAM M. GARDNER, 

in his official capacity as Secretary of State of the State of 

New Hampshire, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Paul J. Barbadoro, U.S. District Judge] 

Before 

Lynch, Lipez, and Thompson, 

Circuit Judges. 

Stephen G. LaBonte, Assistant Attorney General, with whom 

Joseph A. Foster, New Hampshire Attorney General, and Laura E. B. 

Lombardi, Senior Assistant Attorney General, were on brief, for 

appellant. 

Gilles R. Bissonnette, with whom American Civil Liberties 

Union of New Hampshire, William E. Christie, and Shaheen & Gordon, 

P.A. were on brief, for appellees. 

Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School, 

Justin Silverman, and Andrew F. Sellars on brief for The New 

England First Amendment Coalition and The Keene Sentinel, amici 

curiae. 

Eugene Volokh and Scott & Cyan Banister First Amendment 

Clinic, UCLA School of Law on brief for the Reporters Committee 
for Freedom of the Press, amicus curiae. 

Neal Kumar Katyal, Sean Marotta, Hogan Lovells US LLP, 

Christopher T. Handman, and Dominic F. Perella on brief for 

Snapchat, Inc., amicus curiae. 

September 28, 2016 
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LYNCH, Circuit Judge. In 2014, New Hampshire amended a 

statute meant to avoid vote buying and voter intimidation by newly 

forbidding citizens from photographing their marked ballots and 

publicizing such photographs. While the photographs need not show 

the voter, they often do and are commonly referred to as "ballot 

selfies." The statute imposes a fine of up to $1,000 for a 

violation of the prohibition. See N.H. Rev. Stat. Ann. § 659:35, 

IV; id. § 651:2, IV(a).

Three New Hampshire citizens who are under investigation 

for violation of the revised statute, and who are represented by 

the American Civil Liberties Union of New Hampshire, challenged 

the statute's constitutionality. The district court held that the 

statute is a content-based restriction of speech that on its face 

violates the First Amendment. Rideout v. Gardner, 123 F. Supp. 

3d 218, 221 (D.N.H. 2015). The New Hampshire Secretary of State 

appeals, arguing that the statute is justified as a prophylactic 

measure to prevent new technology from facilitating future vote 

buying and voter coercion. We affirm on the narrower ground that 

the statute as amended fails to meet the test for intermediate 

scrutiny under the First Amendment and that the statute's purposes 

cannot justify the restrictions it imposes on speech. 

I. 

In the late nineteenth century, political parties, 

unions, and other organizations had the power to print their own 
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ballots, each of which was easily identifiable and distinguishable 

from other ballots by size and color. This practice allowed the 

ballot-printing organizations to observe how individuals voted at 

the polls, which in turn created an obviously coercive environment. 

During this period, New Hampshire undertook a series of reforms to 

combat widespread vote buying and voter intimidation. In 1891, 

the State passed legislation requiring the Secretary of State to 

prepare ballots for state and federal elections. 1891 N.H. Laws 

ch. 49, § 10. The State then passed a statute to forbid any voter 

from "allow[ing] his ballot to be seen by any person, with the 

intention of letting it be known how he is about to vote." 1911 

N.H. Laws ch. 102, § 2. 

Since at least 1979, that provision has been codified in 

relevant part at section 659:35, I, which, until 2014, read: "No 

voter shall allow his ballot to be seen by any person with the 

intention of letting it be known how he is about to vote except as 

provided in RSA 659:20." The exception in section 659:20 allows 

voters who need assistance marking a ballot to receive such 

assistance. N.H. Rev. Stat. Ann. § 659:20. In 2014, the New 

Hampshire legislature revised section 659:35, I as follows: 

No voter shall allow his or her ballot to be seen by any 

person with the intention of letting it be known how he 

or she is about to vote or how he or she has voted except 

as provided in RSA 659:20. This prohibition shall 

include taking a digital image or photograph of his or 

her marked ballot and distributing or sharing the image 

via social media or by any other means. 
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Id. § 659:35, I (revisions underlined). The penalty for a 

violation of the statute is a fine of up to $1,000. Id. § 659:35, 

IV; id. § 651:2, IV(a). 

The original version of HB366, the bill amending section 

659:35, I, provided that "[n]o voter shall take a photograph or a 

digital image of his or her marked ballot," and was introduced by 

State Representative Timothy Horrigan on January 3, 2013. 

Horrigan stated that "[t]he main reason this bill is necessary is 

to prevent situations where a voter could be coerced into posting 

proof that he or she voted a particular way." The bill started 

at the House Committee on Election Law, which recommended its 

passage, and the members of which expressed rationales for the 

bill similar to Horrigan's. 

The bill then went to the House Committee on Criminal 

Justice and Public Safety. Deputy Secretary of State David 

Scanlan spoke in support of the bill, emphasizing the need to 

prevent vote buying and to protect the "privacy of [the] ballot." 

Though a majority of the members of the Criminal Justice Committee 

supported the bill, a minority disagreed and filed a report 

concluding that the bill was "an intrusion on free speech." In 

order to restrict the bill's scope to activity connected to vote 

buying, the minority suggested amending the bill as follows: 

This prohibition shall include taking a digital image or 

photograph of his or her marked ballot and distributing 
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or sharing the image via social media or by any other 

means only if the distribution or sharing is for the 

purpose of receiving pecuniary benefit, as defined in 

RSA 640:2, II(c), or avoiding harm, as defined in RSA 

640:3.1

The majority of the Criminal Justice Committee did not 

support this amendment, however, and HB366, absent the proposed 

limitation, proceeded to the full House of Representatives, which 

passed it by a vote of 198–96. The bill was then introduced to 

the Senate Committee on Public and Municipal Affairs, which 

recommended the bill to the full Senate. The Senate passed the 

bill, and the Governor signed the bill into law, effective 

September 1, 2014.

The legislative history of the bill does not contain any 

corroborated evidence of vote buying or voter coercion in New 

Hampshire during the twentieth and twenty-first centuries. 

Representative Mary Till, who authored the House Committee on 

 1 New Hampshire law defines "pecuniary benefit" as "any 

advantage in the form of money, property, commercial interest or 

anything else, the primary significance of which is economic gain; 

it does not include economic advantage applicable to the public 

generally, such as tax reduction or increased prosperity 

generally." N.H. Rev. Stat. Ann. § 640:2, II(c). 

 New Hampshire law defines "harm" as "any disadvantage or 

injury, to person or property or pecuniary interest, including 

disadvantage or injury to any other person or entity in whose 

welfare the public servant, party official, or voter is interested, 

provided that harm shall not be construed to include the exercise 

of any conduct protected under the First Amendment to the United 

States Constitution or any provision of the federal or state 

constitutions." N.H. Rev. Stat. Ann. § 640:3, II. 
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Election Law's statement of intent for the bill, provided the sole 

anecdotal allegation of vote buying. She asserted: 

I was told by a Goffstown resident that he knew for a 

fact that one of the major parties paid students from 

St[.] Anselm's $50 to vote in the 2012 election. I 

don't know whether that is true or not, but I do know 

that if I were going to pay someone to vote a particular 

way, I would want proof that they actually voted that 

way. 

No evidence supported this hearsay allegation. The district court 

correctly held that "[t]he summary judgment record does not include 

any evidence that either vote buying or voter coercion has occurred 

in New Hampshire since the late 1800s." Rideout, 123 F. Supp. 3d 

at 224. 

As of August 11, 2015, when the district court issued 

the summary judgment order on appeal here, the New Hampshire 

Attorney General's Office had undertaken investigations of four 

individuals for alleged violations of section 659:35, I, arising 

from their publication of "ballot selfies"2 after voting in the 

September 9, 2014 Republican primary election. Three of those 

 2 Amicus curiae Snapchat highlights the extent of the use 

of "ballot selfies," defined not strictly as "a photo where the 

photographer is also a subject," but rather as "all smartphone 

pictures shared online, including those here . . . [and] any 

picture that could violate the New Hampshire statute." As amici 

curiae New England First Amendment Coalition and the Keene Sentinel 

observe, "the term 'ballot selfie' has worked its way into the 

popular lexicon to describe just such a photograph." See, e.g., 

David Mikkelson, Ballot Selfies, Snopes (Feb. 8, 2016), 

http://www.snopes.com/dont-selfie-your-ballot. 
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individuals -- Leon Rideout, Andrew Langlois, and Brandon Ross -- 

are the plaintiffs in this case.3

Rideout, a member of the New Hampshire House of 

Representatives and a Selectman for Lancaster, New Hampshire, took 

a photograph of his ballot, which showed that he had voted for 

himself and other Republican candidates in the September 9, 2014 

primary. Later that day, he posted the ballot selfie on his 

Twitter feed and on his House of Representatives Facebook page. 

He then explained in an interview with the Nashua Telegraph, 

published on September 11, 2014, that he took and posted the 

photograph online "to make a statement," and that he thought 

section 659:35, I was "unconstitutional." 

Langlois, who voted in Berlin, New Hampshire, did not 

approve of the Republican candidates for the United States Senate, 

and so wrote in the name of his recently deceased dog, "Akira," 

and took a photograph of his ballot. When he returned home, he 

posted the ballot selfie on Facebook with a note that read in part: 

"Because all of the candidates SUCK, I did a write-in of 

Akira . . . ." He was then called by an investigator from the New 

Hampshire Attorney General's Office and informed he was under 

investigation.

 3 All three plaintiffs have entered into agreements with 

the State to toll the three-month statute of limitations period 

for section 659:35, I, pending resolution of this litigation. 
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Ross, who was a candidate for the New Hampshire House of 

Representatives in the 2014 primary, voted in Manchester, New 

Hampshire. He took a photograph of his marked ballot, which 

reflected that he voted for himself and other Republican 

candidates. He was aware of HB366's amendment to section 659:35, 

I and, because of the law's penalties, did not immediately 

publicize the ballot selfie. More than a week later, on September 

19, 2014, having learned that other voters were under investigation 

for violating section 659:35, I, Ross posted the ballot selfie on 

Facebook with a note reading: "Come at me, bro." Representative 

Horrigan, the legislator who had introduced the amendment to 

section 659:35, I, filed an election law complaint against Ross, 

which led to an investigation of Ross by the state Attorney 

General's Office. 

On October 31, 2014, the plaintiffs filed suit under 42 

U.S.C. § 1983 in the U.S. District Court for the District of New 

Hampshire. The complaint sought a declaration invalidating 

section 659:35, I as unconstitutional on its face and as applied, 

and an injunction forbidding New Hampshire from enforcing the 

statute. The parties filed cross-motions for summary judgment and 

agreed that no material facts are in dispute.

In a thoughtful opinion, the district court determined 

that section 659:35, I is a content-based restriction on speech. 

Rideout, 123 F. Supp. 3d at 229. The court observed that the 
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Supreme Court has identified statutes as content-based 

restrictions "if [the] law applies to particular speech because of 

the topic discussed or the idea or message expressed." Id. 

(quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)). 

The district court reasoned that "the law [under review] is plainly 

a content-based restriction on speech because it requires 

regulators to examine the content of the speech to determine 

whether it includes impermissible subject matter." Id. 

The district court applied strict scrutiny, "which 

requires the Government to prove that the restriction furthers a 

compelling interest and is narrowly tailored to achieve that 

interest." Id. at 228 (quoting Reed, 135 S. Ct. at 2231). 

Secretary Gardner, the named defendant, asserted the prevention of 

vote buying and voter coercion as the State's compelling interests 

justifying the restriction. Id. at 231. The district court found 

that although those two asserted interests were "plainly 

compelling in the abstract," id., "neither the legislative history 

nor the evidentiary record compiled by the Secretary in defense of 

this action provide any support for the view that the state has an 

actual or imminent problem with images of completed ballots being 

used to facilitate either vote buying or voter coercion," id. at 

232. And the court found that the statute was not narrowly 

tailored because it was "vastly overinclusive" and would, "for the 

most part, punish only the innocent while leaving actual 
- 11 - 

participants in vote buying and voter coercion schemes unscathed." 

Id. at 234. Moreover, the court observed that the Secretary had 

failed to demonstrate why narrower alternatives, such as a statute 

"mak[ing] it unlawful to use an image of a completed ballot in 

connection with vote buying and voter coercion," would not advance 

the purported state interests. Id. at 235. The district court 

held the statute to be unconstitutional on its face and granted 

declaratory relief to the plaintiffs, trusting that such relief 

absent an injunction would secure compliance by the Secretary. 

Id. at 236. 

II. 

We give de novo review to an appeal both from a ruling 

on cross-motions for summary judgment and from pure issues of law. 

Maritimes & Ne. Pipeline, LLC v. Echo Easement Corridor, LLC, 604 

F.3d 44, 47 (1st Cir. 2010); Am. Home Assurance Co. v. AGM Marine 

Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006). Here, no 

material facts are in dispute; the issues are ones of law. See 

Buchanan v. Maine, 469 F.3d 158, 162 (1st Cir. 2006) (de novo 

review of issues of law on appeal from summary judgment). 

The First Amendment, which applies to the States through 

the Fourteenth Amendment, provides that "Congress shall make no 

law . . . abridging the freedom of speech." U.S. Const. amend. 

I. Standards to evaluate justifications by the state of a 

restriction on speech turn, inter alia, on whether the restriction 
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focuses on content, that is, if it applies to "particular speech 

because of the topic discussed or the idea or message expressed." 

Reed, 135 S. Ct. at 2227. "This commonsense meaning of the phrase 

'content based' requires a court to consider whether a regulation 

of speech 'on its face' draws distinctions based on the message a 

speaker conveys." Id. Content-based regulations are subject to 

strict scrutiny, which requires the government to demonstrate "a 

compelling interest and . . . narrow[] tailor[ing] to achieve that 

interest." Id. at 2231 (quoting Ariz. Free Enter. Club's Freedom 

Club PAC v. Bennett, 564 U.S. 721, 734 (2011)). Narrow tailoring 

in the strict scrutiny context requires the statute to be "the 

least restrictive means among available, effective alternatives." 

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004). 

In contrast, content-neutral regulations require a 

lesser level of justification. These laws do not apply to speech 

based on or because of the content of what has been said, but 

instead "serve[] purposes unrelated to the content of expression." 

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). "The 

principal inquiry in determining content neutrality . . . is 

whether the government has adopted a regulation of speech because 

of disagreement with the message it conveys. The government's 

purpose is the controlling consideration. A regulation that 

serves purposes unrelated to the context of expression is deemed 

neutral . . . ." Id. (citation omitted). Content-neutral 
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restrictions are subject to intermediate scrutiny, which demands 

that the law be "narrowly tailored to serve a significant 

governmental interest." Id. "[U]nlike a content-based 

restriction of speech, [a content-neutral regulation] 'need not be 

the least restrictive or least intrusive means of' serving the 

government's interests." McCullen v. Coakley, 134 S. Ct. 2518, 

2535 (2014) (quoting Ward, 491 U.S. at 798). 

We reach the conclusion that the statute at issue here 

is facially unconstitutional even applying only intermediate 

scrutiny. 4 See, e.g., McCutcheon v. Fed. Election Comm'n, 134 

S. Ct. 1434, 1446 (2014)("Because we find a substantial mismatch 

between the Government's stated objective and the means selected 

to achieve it, the aggregate limits fail even under the 'closely 

drawn' test. We therefore need not parse the differences between 

the two standards in this case."). Like in McCutcheon, there is 

a substantial mismatch between New Hampshire's objectives and the 

ballot-selfie prohibition in section 659:35, I.5

 4 The district court chose to rely on reasoning that 

section 659:35, I is a content-based restriction. Rideout, 123 

F. Supp. 3d at 229. To reach this conclusion, it relied heavily 

on the Supreme Court's recent decision in Reed. Id. at 228–29. 

Secretary Gardner vigorously contests this conclusion. As the 

statute fails even intermediate scrutiny, we need not resolve the 

question of whether section 659:35, I is a content-based 

regulation. 

5 Because the statute fails under intermediate scrutiny, 

we also need not reach the plaintiffs' argument that the statute 

fails under the overbreadth doctrine. See, e.g., United States 
- 14 - 

In order to survive intermediate scrutiny, section 

659:35, I must be "narrowly tailored to serve a significant 

governmental interest." McCullen, 134 S. Ct. at 2534 (quoting 

Ward, 491 U.S. at 796). Though content-neutral laws "'need not 

be the least restrictive or least intrusive means of' serving the 

government's interests," id. at 2535 (quoting Ward, 491 U.S. at 

798), "the government still 'may not regulate expression in such 

a manner that a substantial portion of the burden on speech does 

not serve to advance its goals,'" id. (quoting Ward, 491 U.S. at 

799). The statute fails this standard. 

Secretary Gardner essentially concedes that section 

659:35, I does not respond to a present "'actual problem' in need 

of solving." Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 799 

(2011) (quoting United States v. Playboy Entm't Grp., Inc., 529 

U.S. 803, 822 (2000)). Instead, he argues that the statute serves 

prophylactically to "preserve the secrecy of the ballot" from 

potential future vote buying and voter coercion, because ballot 

selfies make it easier for voters to prove how they voted. He 

characterizes the amendment in section 659:35, I as a natural 

update of the older version of the statute, done in response to 

the development of "modern technology, such as digital photography 

 

v. Stevens, 559 U.S. 460, 473 (2010). 
- 15 - 

and social media," which may facilitate a future rise in vote 

buying and voter intimidation schemes. 

As the district court noted, the prevention of vote 

buying and voter coercion is unquestionably "compelling in the 

abstract." Rideout, 123 F. Supp. 3d at 231. But intermediate 

scrutiny is not satisfied by the assertion of abstract interests. 

Broad prophylactic prohibitions that fail to "respond[] precisely 

to the substantive problem which legitimately concerns" the State 

cannot withstand intermediate scrutiny. Members of City Council 

of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984). 

Digital photography, the internet, and social media are 

not unknown quantities -- they have been ubiquitous for several 

election cycles, without being shown to have the effect of 

furthering vote buying or voter intimidation. As the plaintiffs 

note, "small cameras" and digital photography "have been in use 

for at least 15 years," and New Hampshire cannot identify a single 

complaint of vote buying or intimidation related to a voter's 

publishing a photograph of a marked ballot during that period. 

Indeed, Secretary Gardner has admitted that New Hampshire has not 

received any complaints of vote buying or voter intimidation since 

at least 1976, nor has he pointed to any such incidents since the 

nineteenth century. "[T]he government's burden is not met when a 

'State offer[s] no evidence or anecdotes in support of its 

restriction.'" El Día, Inc. v. P.R. Dep't of Consumer Affairs, 
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413 F.3d 110, 116 (1st Cir. 2005) (alteration in original) (quoting 

Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)).6

Secretary Gardner also highlights scattered examples of 

cases involving vote buying from other American jurisdictions. 

See United States v. Thomas, 510 F.3d 714, 717 (7th Cir. 2007); 

United States v. Shatley, 448 F.3d 264, 265–66 (4th Cir. 2006); 

United States v. Johnson, No. 5:11–CR–143, 2012 WL 3610254, at *1 

(E.D. Ky. Aug. 21, 2012). But Secretary Gardner admits that "there 

is no evidence that digital photography [of a ballot shared with 

others by a voter] played a[ny] role in any of the examples" he 

cites. A few recent instances of vote buying in other states do 

not substantiate New Hampshire's asserted interest in targeting 

vote buying through banning the publication of ballot selfies. 

Secretary Gardner tries to anchor the state interest for 

section 659:35, I on Burson v. Freeman, 504 U.S. 191 (1992) 

(plurality opinion), which held that Tennessee had a compelling 

interest in banning "the solicitation of votes and the display or 

 6 Secretary Gardner does point to history abroad. He 

references the plebiscite held upon the German annexation of 

Austria in 1938, in which "Adolf Hitler instituted election rules 

that allowed voters to voluntarily show their ballot as they were 

voting." He also notes that Saddam Hussein employed ballots 

"contain[ing] a code number which he believed could be traced back 

to the voter." There is no evidence that these historical examples 

from dictatorships have any material relationship to the present 

political situation in the State of New Hampshire, a democracy. 

Indeed, the restrictions on speech imposed by this amendment are 

antithetical to democratic values and particularly impose on 

political speech. 
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distribution of campaign materials within 100 feet of the entrance 

to a polling place." Id. at 193. Burson is obviously 

distinguishable. The discussion in Burson of the long history of 

regulating polling places and the location of elections makes clear 

that the interest at stake in Burson centered on the protection of 

physical election spaces from interference and coercion. See id. 

at 200–10. The plurality acknowledged in Burson that two 

competing interests had to be balanced: the right to speak on 

political issues and the right to be free from coercion or fraud 

at the polling place. Id. at 211. 

The intrusion on the voters' First Amendment rights is 

much greater here than that involved in Burson. Section 659:35, I 

does not secure the immediate physical site of elections, but 

instead controls the use of imagery of marked ballots, regardless 

of where, when, and how that imagery is publicized. 

But even accepting the possibility that ballot selfies 

will make vote buying and voter coercion easier by providing proof 

of how the voter actually voted, the statute still fails for lack 

of narrow tailoring. "[B]y demanding a close fit between ends and 

means, the tailoring requirement [under intermediate scrutiny] 

prevents the government from too readily 'sacrific[ing] speech for 

efficiency.'" McCullen, 134 S. Ct. at 2534 (third alteration in 
- 18 - 

original) (quoting Riley v. Nat'l Fed'n of Blind of N.C., Inc., 

487 U.S. 781, 795 (1988)).7 

New Hampshire has "too readily forgone options that 

could serve its interests just as well, without substantially 

burdening" legitimate political speech. Id. at 2537. At least 

two different reasons show that New Hampshire has not attempted to 

tailor its solution to the potential problem it perceives. First, 

the prohibition on ballot selfies reaches and curtails the speech 

rights of all voters, not just those motivated to cast a particular 

vote for illegal reasons. New Hampshire does so in the name of 

trying to prevent a much smaller hypothetical pool of voters who, 

New Hampshire fears, may try to sell their votes. New Hampshire 

admits that no such vote-selling market has in fact emerged. And 

to the extent that the State hypothesizes this will make 

intimidation of some voters more likely, that is no reason to 

infringe on the rights of all voters. 

Second, the State has not demonstrated that other state 

and federal laws prohibiting vote corruption are not already 

adequate to the justifications it has identified. See 18 U.S.C. 

§ 597 (prohibiting buying or selling votes); 52 U.S.C. § 10307(b) 

 7 Amicus curiae Snapchat notes, by analogy, that other 

circuits have similarly held bans on petit juror interviews to 

fail at narrow tailoring. See In re Express-News Corp., 695 F.2d 

807, 808 (5th Cir. 1982); United States v. Sherman, 581 F.2d 1358, 

1360–61 (9th Cir. 1978). We need not examine the analogy.
- 19 - 

(prohibiting voter coercion or intimidation); id. § 10307(c) 

(prohibiting "pay[ing] or offer[ing] to pay or accept[ing] payment 

either for registration to vote or for voting" in some federal 

elections); N.H. Rev. Stat. Ann. § 659:40, I (prohibiting voterelated bribery); id. § 659:40, II (prohibiting voter coercion or 

intimidation); id. § 659:37 (prohibiting interfering with voters). 

New Hampshire suggests that it has no criminal statute preventing 

a voter from selling votes. That can be easily remedied without 

the far reach of this statute. The State may outlaw coercion or 

the buying or selling of votes without the need for this 

prohibition.8 

As the district court observed, there are less 

restrictive alternatives available: 

[T]he state has an obviously less restrictive way to 

address any concern that images of completed ballots 

will be used to facilitate vote buying and voter 

coercion: it can simply make it unlawful to use an image 

of a completed ballot in connection with vote buying and 

voter coercion schemes. 

 

Rideout, 123 F. Supp. 3d at 235; see also McCullen, 134 S. Ct. at 

2539 ("[T]he Commonwealth has available to it a variety of 

approaches that appear capable of serving its interests, without 

excluding individuals from areas historically open for speech and 

debate."). Indeed, as to narrow tailoring, the plaintiffs point 

 8 Of course, another solution to New Hampshire's dilemma 

of not having a statute that criminalizes vote selling would be to 

enact such a statute. 
- 20 - 

to the language of the very limitation proposed by the minority of 

the House Criminal Justice Committee, but rejected by the majority 

of that Committee. The ballot-selfie prohibition is like 

"burn[ing down] the house to roast the pig." Butler v. Michigan, 

352 U.S. 380, 383 (1957). 

There are strong First Amendment interests held by the 

voters in the speech that this amendment prohibits. As the Supreme 

Court has said, "[t]he use of illustrations or pictures . . . 

serves important communicative functions: it attracts the 

attention of the audience to the [speaker's] message, and it may 

also serve to impart information directly." Zauderer v. Office 

of Disciplinary Counsel, 471 U.S. 626, 647 (1985). 

The restriction affects voters who are engaged in core 

political speech, an area highly protected by the First Amendment. 

As amici point out, there is an increased use of social media and 

ballot selfies in particular in service of political speech by 

voters.9 A ban on ballot selfies would suppress a large swath of 

 9 Amicus Snapchat stresses that "younger voters 

participate in the political process and make their voices heard" 

through the use of ballot selfies. According to the Pew Research 

Center, in the 2012 election, "22% of registered voters have let 

others know how they voted on a social networking site such as 

Facebook or Twitter," "30% of registered voters [were] encouraged 

to vote for [a particular candidate] by family and friends via 

posts on social media such as Facebook and Twitter," and "20% of 

registered voters have encouraged others to vote by posting on a 

social networking site." Lee Raine, Pew Research Center, Social 

Media and Voting (Nov. 6, 2012), http://www.pewinternet.org/ 

2012/11/06/social-media-and-voting/. 
- 21 - 

political speech, which "occupies the core of the protection 

afforded by the First Amendment," McIntyre, 514 U.S. at 346; see 

also Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (holding 

that there is a First Amendment interest in videotaping government 

officials performing their duties in public places). Ballot 

selfies have taken on a special communicative value: they both 

express support for a candidate and communicate that the voter has 

in fact given his or her vote to that candidate. 

Section 659:35, I reaches and prohibits innocent 

political speech by voters unconnected to the State's interest in 

avoiding vote buying or voter intimidation. The plaintiffs' 

examples show plainly that section 659:35, I "burden[s] 

substantially more speech than is necessary to further the 

government's legitimate interests." McCullen, 134 S. Ct. at 2535 

(quoting Ward, 491 U.S. at 799); see also McIntyre, 514 U.S. at 

351 (holding that, despite legitimate interest in reducing fraud, 

government could not impose "extremely broad prohibition" on 

anonymous leafleting about ballot measures). Indeed, several 

states have now expressly authorized ballot selfies, and those 

states have not reported an uptick in vote buying or voter 

intimidation.10

 10 See A.B. 1494, 2015-16 Reg. Sess. (Cal. 2016) (enrolled 

Aug. 26, 2016) (amending statute to provide that "[a] voter may 

voluntarily disclose how he or she voted if that voluntary act 

does not violate any other law"); S.B. 1287, 52d Leg., 1st Reg. 
- 22 - 

New Hampshire may not impose such a broad restriction on 

speech by banning ballot selfies in order to combat an 

unsubstantiated and hypothetical danger. We repeat the old adage: 

"a picture is worth a thousand words." 

III. 

The judgment of the district court is affirmed. 

 

Sess. (Ariz. 2015) (making clear that there is no violation where 

"[a] voter . . . makes available an image of the voter's own ballot 

by posting on the internet or in some other electronic medium"); 

H.B. 72, Gen. Sess. (Utah 2015) (effective May 12, 2015) (amending 

statute to make clear that statute "does not prohibit an individual 

from transferring a photograph of the individual's own ballot in 

a manner that allows the photograph to be viewed by the individual 

or another"); S.B. 1504, 77th Or. Leg. Assemb., 2d Reg. Sess. (Or. 

2014) (effective Jan. 1, 2015) (repealing language in statute that 

"[a] person may not show the person's own marked ballot to another 

person to reveal how it was marked"); H.P. 1122, 125th Leg., 1st. 

Reg. Sess. (Me. 2011) (repealing prohibition of showing a "marked 

ballot to another with the intent to reveal how that person 

voted"); R.I. State Bd. of Elections, ERLID No. 8372, Rules and 

Regulations for Polling Place Conduct (2016) (specifying that 

"[t]he electronic recording of specific vote(s) cast by another 

person is prohibited").