Are Selfies a First Amendment Right?

By September 14, 2016Free Speech

The “selfie” has become a defining act of the millennial generation. Our affinity for documenting every waking moment of our entire lives has garnered us the nickname, “the selfie generation.” In fact, selfies have become such an integral part of our American lives, First Amendment advocates in New Hampshire have filed a lawsuit that would protect the right to take a selfie while in the ballot box.

Many states currently have laws on the books which prohibit voters from taking pictures once they are inside their polling locations.  Last year, a federal judge struck down New Hampshire’s prohibition of ballot photos. However, the state is currently appealing last year’s decision to the U.S. Court of Appeals for the 1st Circuit. If the U.S. Court of Appeals strikes down the prior court ruling, voters who cannot resist the urge to snap a selfie while casting their vote will face fines up to $1,000.

In April, social media giant, Snapchat, filed an amicus brief with the U.S. Court of Appeals, arguing that the state’s ban is a violation of freedom of expression, protected under the First Amendment. In its filing, Snapchat argues:

“A ballot selfie — like a campaign button — is a way to express support for or against a cause or a candidate. And because it is tangible proof of how a voter has voted, a ballot selfie is a uniquely powerful form of political expression. It proves that the voter’s stated political convictions are not just idle talk. Not only that, but ballot selfies and other digital expressions of civic engagement encourage others to vote — particularly younger voters who have historically low turnout rates. Ballot selfies are thus all at once deeply personal and virtuously public expressions. And they’re the sort of expressions that the State cannot categorically ban without violating the First Amendment.”

Though those in favor of upholding the ban are doing so with the best of intentions, many worry that election laws have not kept up with the technological advances we enjoy in our present day. 20 or 30 years ago someone wanting to photograph their ballot would have had to sneak in a relatively large camera into their voting booth. Today, when everyone has their smartphone on them at all times, selfies and photos have become a routine part of life.

Though such bans are in place as a means of preserving integrity in the voting process, Snapchat believes that these concerns do not outweigh First Amendment protections.

Additionally, for those concerned with electoral malfeasance, smartphones have proved themselves to be a powerful tool when it comes to protecting the rule of law. In the 2012 election cycle, when various precinct chairs were accused of violating local caucus or election rules, many concerned citizens pulled out their smartphones and documented what was happening. According to the Huffington Post, Snapchat believes that by limiting the voter’s ability to document their voting experience, the state is, “hindering the public’s ability to report on and share information about the problems at the polls.”

Snapchat affirms this stance in one of its earlier filings saying:

“[B]allot selfies help the media perform its watchdog role in elections. Ballot-design problems — whether butterfly ballots, hanging chads, or some electronic glitch with computer screens — have all too frequently disrupted the orderly democratic process. A ballot-selfie ban like the State’s could deprive the public from learning about those problems or validating what might otherwise be dismissed as just unfounded anecdote.”

While arguing over the right to take selfies might seem like a trivial matter, at its core it is still a First Amendment issue which deserves the same protections as any other form of free speech or expression, especially considering our current climate of hostility towards free speech on college campuses.

Author Brittany Hunter

Brittany Hunter is a Staff Contributor at Generation Opportunity.

More posts by Brittany Hunter