Election Projections: First Amendment Issues
Released: 2001-01-23T00:00:00

RS20762 -- Election Projections: First Amendment Issues

Updated January 23, 2001

I. Banning Media Projections

Media projections are speech, and the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." It ispossible, however, though by no means certain, that Congress could limit the right of broadcast radio and televisionstations to report election result projections. This is because the Supreme Court, citing "spectrum scarcity," i.e. , the limited number of availablebroadcast frequencies, has "permitted more intrusive regulationof broadcast speakers than of speakers in other media." Turner Broadcasting System v. FederalCommunications Commission , 512 U.S. 622, 637 (1994). But torestrict broadcast radio and television, but not cable television and the Internet, would seem to go only a small waytoward banning media election projections.

A statute that restricted speech of media other than broadcast radio and television, if challenged, would be subject to "strict scrutiny" by the courts. This meansthat the courts would uphold it only if the government proves that it is necessary "to promote a compelling interest"and is "the least restrictive means to furtherthe articulated interest." Sable Communications of California, Inc. v. Federal CommunicationsCommission , 492 U.S. 115, 126 (1989).

Would there be a "compelling interest" in prohibiting media projections? Though there might be a compelling interest in preventing the media from interferingwith elections so as potentially to affect the outcome, it seems questionable whether election projections, if theyare understood by potential voters to be merelyprojections, could be said to interfere with elections. Voters who hear or read such projections presumably knowthat they are only projections, and that their votescould still make a difference in the election. If they decide that that difference is not significant enough to makeit worth their while to vote, then they have made afree choice. The Supreme Court has written in another context: "The First Amendment directs us to be especiallyskeptical of regulations that seek to keep peoplein the dark for what the government perceives to be their own good." 44 Liquormart, Inc. v. RhodeIsland , 517 U.S. 484, 503 (1996).

If there is concern that some potential voters might be misled by projections to think that the winner of an election has been determined, then Congress might beable to require that disclosures accompany projections. Although the First Amendment protects the right not tospeak as well as the right to speak, the courtsmight view compelled disclosures in this case as serving a compelling interest in protecting the right to vote.

In the seemingly unlikely event that a court were to find a compelling interest in prohibiting media election result projections, then the government would stillhave to show that there was no less restrictive means to further that interest. Making this determination would entailconsideration of other proposals to deal withthe perceived problem.

II. Banning Exit Polling Within a Prescribed Distance from the Polls

The purpose of legislation banning exit polling within a prescribed distance from the polls would be to make exit polling more difficult. In Burson v. Freeman ,504 U.S. 191 (1992), the Supreme Court upheld a Tennessee statute that prohibited the solicitation of votes and thedisplay or distribution of campaign materialswithin 100 feet of the entrance to a polling place. The Court recognized that this statute both restricted politicalspeech, to which the First Amendment "has itsfullest and most urgent application," and "bar[red] speech in quintessential public forums," the use of which forassembly and debate "has, from ancient times,been a part of the privileges, immunities, rights, and liberties of citizens." Id . at 196, 197. Further, thestatute restricted speech on the basis of its content, as itrestricted political but not commercial solicitation, and therefore was not "a facially content-neutral time, place, ormanner restriction." Id . at 197.

The Court therefore subjected the Tennessee statute to strict scrutiny, which means that it required the state to show that the regulation serves a compelling stateinterest and "is necessary to serve the asserted interest." Id . at 199. Although applying strict scrutinyusually results in a statute's being struck down, in this casethe Court concluded "that a State has a compelling interest in protecting voters from confusion and undueinfluence," and "in preserving the integrity of itselection process." Id . Or, more simply, in preventing "two evils: voter intimidation and election fraud." Id . at 206. The next question, then, was whether a100-foot restricted zone is necessary to serve this compelling interest. The Court, noting that "all 50 States limitaccess to the areas in or around polling places,"said that, though it would not specify a precise maximum number of feet permitted by the First Amendment, 100feet "is on the constitutional side of the line." Id .at 206, 211.

In Daily Herald Co. v. Munro , 838 F.2d 380 (9th Cir. 1988), decided prior to Burson , the Ninth Circuit struck down a Washington statute that prohibited exitpolling within 300 feet of a polling place. The court granted that "[s]tates have an interest in maintaining peace,order, and decorum at the polls and 'preservingthe integrity of their electoral processes.'" Id . at 385. But the court found that "the statute is notnarrowly tailored to advance that interest," because it prohibitsnondisruptive as well as disruptive exit polling. Id . "Moreover, the statute is not the least restrictivemeans of advancing the state's interest. The statute isunnecessarily restrictive because [another Washington statute] already prohibits disruptive conduct at the polls,"and "that several other less restrictive means ofadvancing this interest exist: for example, reducing the size of the restricted area; requiring the media to explain thatthe exit poll is completely voluntary;requiring polling places to have separate entrances and exits, . . . or prohibiting everyone except election officialsand voters from entering the polling room." Id .

This reasoning of the Ninth Circuit may no longer stand after the Supreme Court's decision in Burson . As for the statute's being unnecessary because anotherstatute already prohibited disruptive conduct, the Court in Burson found that "[i]ntimidation andinterference laws [ i.e. , laws that prohibit only disruptive conduct]fall short of serving a State's compelling interests because they 'deal with only the most blatant and specific attempts'to impede elections." 504 U.S. at 206-207. As for there being a less restrictive means to preserve the integrity of the electoral process, the Court in Burson did not require the state to provide "factual findingto determine the necessity of [its] restrictions on speech." 504 U.S. at 222 (Stevens, J., dissenting). Rather, it foundthat "the link between ballot secrecy andsome restricted zone surrounding the voting area . . . is common sense." Id . at 207.

But the plaintiffs in Munro also "argue[d] that the statute is unconstitutional for another reason: that the stated purpose for the statute of protecting order at thepolls was a pretext, and that the state's true motive was to prevent the media from broadcasting election resultsbefore the polls closed." Id. at 386. The courtfound "that, assuming that at least one purpose of the statute was to prevent broadcasting early returns, the statuteis unconstitutional because this purpose isimpermissible . . . . [A] general interest in insulating voters from outside influences is insufficient to justify speechregulation." Id . at 387. "In addition," the courtsaid, even if this were a permissible purpose, "the statute is not narrowly tailored to protect voters from thebroadcasting of early returns. Election-daybroadcasting is only one use to which the media plaintiffs put the information gathered from exit polling . . ." Id . at 387-388. The information is also used toanalyze the results of elections, and prohibiting exit polling prohibits speech involving such other uses of theinformation.

Reading Munro together with Burson suggests that Congress could prohibit the solicitation of votes and the display or distribution of campaign materials within100 feet (or some other reasonable distance) of the entrance to a polling place, but could not prohibit exit pollingfor the purpose of preventing voters fromreceiving media projections. Any limit on exit polling would seem permissible only to the extent it could bejustified as part of a general restriction on interferingwith voters before they vote. In Burson , the Court found that the Tennessee statute'srestriction could be limited to voter solicitation, and need "not restrict othertypes of speech, such as charitable and commercial solicitation or exit polling, within the 100-foot zone." 504 U.S.at 207. But the Court did not say that a statutecould not also restrict other types of speech, if it could demonstrate that doing so was necessary to servea compelling governmental interest.

A post- Burson court of appeals case found greater justification for restricting campaigning than for restricting exit polling, because, "[w]hile there is no evidenceof widespread voter harassment or intimidation by exit-pollers, there is evidence that poll workers do create theseproblems." Schirmer v. Edwards , 2 F.3d 117,122 (5th Cir. 1993), cert. denied , 511 U.S. 1017 (1994). The court distinguished Munro on this basis, and upheld a 600-foot campaign-free zone.

III. Banning Media Access to Ballot Counts

If Congress could not ban media projections outright, could it prohibit government officials from releasing ballot counts to the media? Could Congress, that is,deny media access to ballot counts, either when the polls have not closed in the jurisdiction whose votes are beingcounted, or when the polls have not closedacross the nation? The purpose of restricting access in the latter case would be to prevent potential voters in statesin western time zones from being influenced bylearning the results in states in eastern time zones.

The First Amendment, the Supreme Court has written,

goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members ofthe public may draw." Free speech carries with it some freedom to listen. "In a variety of contexts this Court hasreferred to a First Amendment right to 'receiveinformation and ideas.'"

Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 575-576 (1980). Nevertheless, although "news gathering is not without its First Amendmentprotections"( Branzburg v. Hayes , 408 U.S. 665, 707 (1972)), these protections are not generally as greatas are protections from censorship. The Court has heldthat the First Amendment does not prevent prison officials from prohibiting "face-to-face interviews between pressrepresentatives and individual inmates." Pellv. Procunier , 417 U.S. 817, 819 (1974).

In so holding, the Court did not find it necessary for the government to establish a compelling need to justify the prohibition, as the government in the ordinarycase must to justify statutes that censor speech. Rather, the Court "balance[d] First Amendment rights" againstgovernmental interests such as "the legitimatepenological objectives of the corrections system" and "internal security within the corrections facilities," taking intoaccount available alternative means ofcommunication. Id . at 824, 822, 823. Furthermore, the Court wrote, although the First Amendmentbars the "government from interfering in any way with a freepress," it does not "require government to accord the press special access to information not shared by members ofthe public generally." Id . at 834, 833.

If Congress enacted a statute prohibiting the release of ballot counts, and it were challenged as unconstitutional, the court presumably would apply the sort ofbalancing test it used in Pell v. Procunier to reach a decision. It would assess the importance of denyingmedia access to ballot counts, perhaps consideringwhether media projections, or learning the results in other states, tend to mislead potential voters, or whetherpotential voters are merely making free choices aboutthe importance of their vote in light of status of the election at the time they hear a media projection or the resultin another state.

A court might also evaluate the efficacy of prohibiting the release of ballot counts, considering, for example, whether, if denied access to ballot counts, the mediamight nevertheless make projections based merely on exit polls, which might be more misleading than those basedon ballot counts. Finally, a court mightconsider whether Congress could accomplish its goal by alternative means that would restrict speech less. Anexample might be to require that projections beaccompanied by disclosure of the information on which the projection is based.

IV. Concluding Note

Whether or not there is a First Amendment barrier to banning exit polling within a prescribed distance from the polls, or to prohibiting the release of ballot counts,there is still the question of Congress's power to regulate in this area. Congress has clear power to regulate Houseand Senate elections, but less clear power toregulate presidential elections, aspects of which the Constitution vests in the states. For additional information onthis subject, see CRS Report RL30747 , Congressional Authority to Standardize National Election Procedures , by [author name scrubbed].