INDIANA CIVIL LIBERTIES UNION FOUNDATION. INC. v. INDIANA SECRETARY OF STATE et al
ORDER - Plaintiff ACLU's Motion for Summary Judgment Docket No. 35 is therefore GRANTED and the State's Cross Motion for Summary Judgment Docket No. 38 is DENIED. Final Judgment and Permanent Injunction of the enforcement of Indiana Code 3-11-8-17.5 shall enter accordingly. Signed by Judge Sarah Evans Barker on 1/19/2017. (CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANA CIVIL LIBERTIES UNION
FOUNDATION. INC. doing business as
AMERICAN CIVIL LIBERTIES UNION
INDIANA SECRETARY OF STATE,
MEMBERS OF THE INDIANA
SUPERINTENDENT OF THE INDIANA
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This cause is before the court on Plaintiff Indiana Civil Liberties Union
Foundation, Inc., d/b/a American Civil Liberties Union of Indiana’s (“ACLU”) Motion
for Summary Judgment [Docket No. 35] and Defendants Indiana Secretary of State, The
Members of the Indiana Election Commission, and the Superintendent of the Indiana
State Police’s (collectively “the State”) Cross Motion for Summary Judgment [Docket
No. 38]. For the reasons detailed herein, Plaintiff’s motion is GRANTED and
Defendants’ cross motion is DENIED.
Factual and Procedural Background
On July 1, 2015, Indiana Code § 3-11-8-17.5 went into effect, providing:
(a) Voters may use cellular telephones or other electronic devices in
the polls as long as electioneering or loud or disruptive
conversations do not occur.
(b) A voter may not do the following:
(1) Take a digital image or photograph of the voter’s ballot while
the voter is in a polling place, an office of the circuit court clerk
(under IC 3-11-10-26), a satellite office established under IC
3-11-10-26.3, or a vote center established under IC 3-11-18.14, except to document and report to a precinct officer, the
county election board, or the election division a problem with
the functioning of the voting system.
(2) Distribute or share the image described in subdivision (1) using
social media or by any other means.
Ind. Code § 3-11-8-17.5.
On August 27, 2015, the ACLU invoked associational standing in filing suit on
behalf of its members who have taken photographs of their election ballots in the past or
intend to do so in future elections, alleging that Ind. Code § 3-11-8-17.5 violates the First
Amendment of the United States Constitution. Dkt. 1, 17, 25. On September 4, 2015, the
ACLU moved for a preliminary injunction seeking to enjoin application and enforcement
of the law. Dkt. 8.
On October 19, 2015, we granted the ACLU’s motion for preliminary injunction,
concluding that Ind. Code § 3-11-8-17.5 embodies a content-based restriction on speech
that cannot survive strict scrutiny because it neither serves compelling state interests nor
is it narrowly tailored to achieve those interests. Dkt. 32.
On April 11, 2016, the ACLU filed a motion for summary judgment requesting
that our preliminary injunction become permanent. Dkt. 35. On May 12, 2016, the State
responded with a cross motion for summary judgment essentially defending the state
statute and opposing the injunction. See Dkt. 38. The parties’ cross motions became fully
briefed on June 21, 2016, and are now ripe for decision.
Federal Rule of Civil Procedure 56 provides that summary judgment should be
granted when the evidence establishes that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). The purpose of summary
judgment is to “pierce the pleadings and to assess the proof in order to see whether there
is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Disputes concerning material facts are genuine where the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of
material fact exist, the court construes all facts in a light most favorable to the nonmoving
party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255.
However, neither the “mere existence of some alleged factual dispute between the
parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the
material facts,” Matsushita, 475 U.S. at 586, will defeat a motion for summary judgment.
Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
Courts often confront cross motions for summary judgment because Rules 56(a)
and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to
move for such relief. In such situations, courts must consider each party’s motion
individually to determine if that party has satisfied the summary judgment standard. Kohl
v. Ass’n. of Trial Lawyers of Am., 183 F.R.D. 475 (D. Md. 1998). Here, the Court has
considered the parties’ respective memoranda and the exhibits attached thereto and has
construed all facts and drawn all reasonable inferences therefrom in the light most
favorable to the respective nonmovant. Matsushita, 475 U.S. at 574. The parties before
us, by filing cross motions, stipulate that there are no material facts in controversy and
that their dispute is ripe for decision on summary judgment.
In its cross motion for summary judgment, the State argues (1) that Indiana has
constitutional authority to regulate elections and impose voting restrictions to maintain
the integrity of the voting process; (2) that Ind. Code § 3-11-8-17.5 is content-neutral and
therefore subject to a lesser level of scrutiny; and (3) that even if Ind. Code § 3-11-8-17.5
were subject to strict scrutiny, it would nevertheless survive such scrutiny because
Due to the nature of the parties’ arguments and in light of our October 19, 2015 Order on the issues
presented by this case, we focus primarily on the State’s cross motion for summary judgment, which, in
essence, requests reconsideration of our prior ruling.
Indiana has a compelling interest in curtailing “voter misdeeds” and the statute is
narrowly tailored to advance that interest. See Dkts. 38, 39.
The State’s arguments are largely reflective of the issues discussed and decided in
our prior order granting preliminary injunctive relief, Dkt. 32, though the State has
focused its argument to urge that we approach the issues before us not as implicating
fundamental free speech rights under the First Amendment, but instead as simply a voting
restriction enacted pursuant to the State’s broad authority pursuant to Art. I, § 4, cl. 1 of
the United States Constitution. The State accordingly contends that it is not required to
satisfy what it describes as the “absurd evidentiary requirement” of demonstrating the
existence of voter fraud in Indiana to justify the statute. Instead, it maintains that, because
the statute is simply a restriction on the voting process intended to uphold the integrity of
the process, the State need not establish any specific purpose beyond that as a
justification for the restriction. Def.’s Resp. at 11–13 (citing Fed. Election Comm’n v.
Nat’l Right to Work Comm’n, 459 U.S. 197, 210 (1982)).
We are not convinced by the State’s analysis or conclusion. Clearly, the United
States Constitution grants “to the States a broad power to prescribe the ‘Times, Places
and Manner of holding Elections for Senators and Representatives,’ Art. I, § 4, cl. 1,
which power is matched by state control over the election process for state offices.”
Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986). Yet, a simple
reading of the plaint text of Ind. Code § 3-11-8-17.5 reveals that the statute places no
regulation on the times, places, or manner of elections, instead restricting the taking and
sharing of certain photographs and digital images based on the content of those images.
Thus, the State’s general grant of regulatory powers to itself under Art. I § 4, cl.1 of the
Constitution are not relevant to our analysis here. Ind. Code § 3-11-8-17.5 clearly
implicates certain fundamental rights protected by the First Amendment. See Reno v.
ACLU, 521 U.S. 844 (1997) (holding that the internet is a protected medium of
communication under the First Amendment); Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (holding that photographs are a
protected medium of expression under the First Amendment); Kleindienst v. Mandel, 408
U.S. 753, 763 (1972) (holding that there is a right under the First Amendment to receive
information and ideas); ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (affirming a
right under the First Amendment to make audio and visual recordings). As the Supreme
Court ruled in Tashjian, “The power to regulate the time, place, and manner of elections
does not justify, without more, the abridgment of fundamental rights.” 479 U.S. at 217.
Accordingly, we shall proceed with our analysis in the same manner we
previously followed in addressing the issues presented in this litigation, to wit, by
determining first whether the restrictions are content based or content neutral, and then by
determining whether they pass constitutional muster under the appropriate level of
scrutiny. In conducting this analysis, we shall draw substantially on our October 19, 2015
Order, incorporating significant portions and modifying and/or elaborating on our
analysis to the extent required to incorporate recent judicial decisions and fully developed
facts underlying the parties’ respective summary judgment motions and supplemental
The First Amendment prohibits states from restricting “expression because of its
message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley,
408 U.S. 92, 95 (1972). Any law that effectively restricts expression (including the
communication of such content) is analyzed in the context of two possible categories of
restriction: content-based restrictions or content-neutral restrictions. Depending on
whether the law is content based or content neutral, it invites a particular form and level
of judicial scrutiny. Content-based restrictions are subject to strict scrutiny, “which
requires the Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest.” Reed v. Town of Gilbert,—U.S. —, 135 S.Ct.
2218, 2231 (2015). Content-neutral restrictions are subject to intermediate scrutiny,
which allows the Government to impose “reasonable restrictions on the time, place, or
manner of protected speech” so long as the restrictions are “narrowly tailored to serve
significant government interest, and  leave open ample alternative channels for
communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989). Under either form of judicial scrutiny, the burden rests on the government to
establish the importance of its interests and the narrow tailoring of its restrictions to
conform to First Amendment standards.
Here, the State maintains that Ind. Code § 3-11-8-17.5 is content neutral “because
all photography and posting to social media is banned regardless of the content of the
photo.” Defs.’ Br. at 14 (emphasis in original). But, as we addressed in our prior Order,
this is simply untrue. Ind. Code § 3-11-8-17.5(b)(1) expressly provides that a voter may
not “[t]ake a digital image or photograph of the voter’s ballot while the voter is in the
polling place.” (emphasis added). A voter remains free, however, to take photographs of
anything and everything other than her ballot while in the polling place. Ind. Code § 311-8-17.5(a). For example, a voter may take pictures of the que of voters waiting to enter
the voting booths, of the voting booths themselves, of voters entering and exiting the
booths; once inside a voting booth, she may take pictures of the interior walls, floors,
curtains, indeed, any other aspect of her surroundings. A voter may even snap a “voting
selfie” taken while in the act of voting so long as the image does not include a marked or
unmarked ballot. Once a voter enters a polling place, she is free to take photographs or
digital images with her smartphone (or camera) and to share them with whomever she
pleases, in whatever way she pleases. Not until after her photographs are examined as to
their content will the government know whether she has committed a felony under Ind.
Code § 3-11-8-17.5. Indeed, it is this required post hoc examination of the photographs
needed in order to enforce the terms of this statute which reveals its content-based nature.
Reed, 135 S.Ct. at 2227.
Perhaps recognizing that only photographs of marked and unmarked ballots are
prohibited by the law, the State argues in the alternative that the statute is nevertheless
content neutral because “[i]t applies equally to all ballots, whether marked or
unmarked…As such, Ind. Code section 3-11-8-17.5 was clearly not enacted because of
disagreement with any particular message or form of communication.” Defs.’ Br. at 16.
This line of argument suffers from two deficiencies: First, while the statute purports to
treat marked and unmarked ballots equally, it does not actually treat “all ballots” equally
since it permits a voter to photograph her ballot, whether marked or unmarked, only if
she does so in order to “document and report…a problem with the functioning of the
voting system.” Photographs taken of ballots for any other purpose are forbidden. Ind.
Code § 3-11-8-17.5(b)(1). Photographs of ballots are thus treated differently under the
statute based on their purpose—another hallmark of content-based regulation. Second,
the statute’s alleged equal application to all ballots, regardless of the candidate(s) for
whom they have been marked (or if left unmarked), does not foreclose strict scrutiny.
Government regulation of speech based on the specific motivating ideology or opinion of
the speaker is, of course, a “more blatant [and] egregious form of content discrimination,”
but it is well established that speech regulation of a specific subject matter is content
based even if it does not discriminate among viewpoints within that subject matter. See
Reed¸ 135 S.Ct. at 2230 (“A law banning the use of sound trucks for political speech—
and only political speech—would be a content-based regulation, even if it imposed no
limits on the political viewpoints that could be expressed.”); see also Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); Consol. Edison Co. of N.Y.
v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 537 (1980).
Regardless, the State’s purpose-based justification for the statute puts the
analytical cart before the horse. As the Supreme Court explained in Reed, it “skips the
crucial first step in the content-neutrality analysis: determining whether the law is content
based on its face.” 135 S.Ct. at 2228. Courts are directed to consider whether a statute is
content based on its face before turning to the legislature’s purported justifications or
purposes for enacting it. Id. (collecting cases). If the law is determined to be content
based on its face, it is subject to strict scrutiny regardless of whether it was enacted with
good intentions or benign motivations or out of an animus toward the ideas the speech
contained. Id. “In other words, an innocuous justification cannot transform a facially
content-based law into one that is content neutral.” Id.
Accordingly, having reviewed and carefully considered the parties’ submissions,
we arrive at the same conclusion we reached in our October 19, 2015 Order, namely, that
Ind. Code § 3-11-8-17.5 is a content-based restriction subject to strict scrutiny.
A. Strict Scrutiny
Having determined that Ind. Code § 3-11-8-17.5 is a content-based restriction, we
next address whether the State has established that the restriction is necessary to further a
“compelling interest” and is “narrowly tailored” to achieve that interest. See e.g., Reed,
135 S.Ct. at 2231(citing Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,—U.S.
—, 131 S.Ct. 2806, 2817 (2011)).
1. Compelling Interests
The State maintains, as it did at the preliminary injunction stage, that the Ind.
Code § 3-11-8-17.5 serves three interrelated compelling interests: (1) preventing vote
buying and selling; (2) maintaining the secrecy of the voter’s ballots; and (3) maintaining
the integrity of the electoral process. Defs.’ Br. at 16–17.
As referenced in our prior Order, it is undisputed that these asserted interests are,
in the abstract, compelling. See Burson v. Freeman, 504 U.S. 191, 199 (1992) (“[T]his
Court has concluded that a State has a compelling interest in protecting voters from
confusion and undue influence…[and] in preserving the integrity and reliability of the
electoral process itself”). “To survive strict scrutiny, however, a State must do more than
assert a compelling state interest—it must demonstrate that its law is necessary to serve
the asserted interest.” Id. In other words, “[t]he state must specifically identify an ‘actual
problem’ in need of solving.” Brown v. Entm’t Merchs. Ass’n, —U.S. —, 131 S.Ct. 2729,
2738 (2011) (quoting United States v. Playboy Entm’t Grp., 529 U.S. 803, 822–23
(2000)); see also Consol. Edison, 447 U.S. at 543 (“Mere speculation of harm does not
constitute a compelling interest.”).
Though the State continues to assert that Indiana suffers from “specific voter
issues” due to its “history of vote buying and selling,” Defs.’ Br. at 16, 18, it has
repeatedly failed to sufficiently support its claim with any actual evidence of vote buying
and selling. Since issuing our preliminary injunction, the State has had seven months—a
span of time which included the 2015 election cycle and the 2016 primaries—to fully
develop a factual record that would establish an ongoing problem of vote buying in
Indiana. Even with the benefit of this additional time and expanded opportunity to create
a case, the State has come up with nothing that is in any way persuasive. In addition to
the two newspaper articles, each dating back to the late 1980’s which pertain to votebuying indictments of certain county officials, and the 2008 email exchange containing a
third-hand allegation of one Scottsburg, Indiana, voter placing his vote on eBay (on
which evidence the State relied at the preliminary injunction stage), the State has
identified only one new evidentiary item to support its assertion that Indiana suffers from
systemic vote buying and selling such that a statutory protection is necessary to prevent
the facilitation of the criminal conduct in the digital age. This single item of additional
evidence is a June 17, 2013 article, published on FoxNews.com, reporting the guilty pleas
of four Indiana Democratic Party officials for their roles in faking and forging signatures
on pre-ballot petitions prior to the 2008 primaries. Defs.’ Ex. 4. This publication has little
persuasive effect in terms of changing our prior conclusion. Simply put, the State has
failed to establish that Indiana suffers from any substantial ongoing vote-buying
problem(s) in need of the statutory protections imposed by this statute, much less any
problem(s) emanating from or pertaining to the use of digital photography in facilitating
The State in fact concedes that “digital photography has yet to contribute to vote
buying issues in Indiana,” Defs.’ Br. at 18, but nonetheless maintains that the broad
restrictions and prohibitions imposed by Ind. Code § 3-11-8-17.5 are required to prevent
the potential use of digital photography to facilitate vote buying in future election cycles.
As support for this argument, the State relies on a 2015 Pew Research Institute study
which apparently found that 64% of Americans own/use a smartphone with camera and
internet capabilities, and 67% of those Americans owning/using smartphones use them to
share pictures, videos, or commentary about events happening in their community. See
Defs.’ Ex. 3-B. This evidence, however, properly considered, actually undermines the
State’s arguments. As the First Circuit recently noted, “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.” Rideout v. Gardner¸838 F.3d 65, 73 (1st Cir. 2016). The fact that a large
percentage of Americans own and use smartphones to take and share digital images flies
in the face of the State’s inability to produce a single instance of their having been used
to facilitate vote buying or voter coercion. Ind. Code § 3-11-8-17.5 is a solution in search
of a problem. This leads inevitably to the conclusion that the statute does not withstand
strict scrutiny. Playboy, 529 U.S. at 822.
2. Narrow Tailoring
Even if Indiana had been able to show that the State faces ongoing vote buying
and selling problems facilitated by the electronic photographing and sharing of pictures
of ballots, and even if Ind. Code § 3-11-8-17.5 were shown to have been enacted to
prevent such future crimes, the statute would still fail to withstand strict scrutiny because
it is not narrowly tailored to achieve that specific state interest. See Reed, 135 S.Ct. at
2231 (collecting cases). A law that restricts speech on the basis of its content imposes a
burden on the State to demonstrate that the restriction is the “least restrictive means”
available to achieve the stated objective. McCullen v. Coakley,—U.S.—, 134 S.Ct. 2518,
2530 (2014); Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).
Ind. Code § 3-11-8-17.5 fails to satisfy this standard because it extends far beyond
the targeted speech in attempting to prevent vote buying. See Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 123 (1991). As previously
explained, we fail to see how banning voters from taking photos of unmarked ballots in
any way serves the statute’s goal of protecting voters from vote buying and voter
coercion. More particularly, even the prohibition on taking and sharing pictures of
marked ballots draws into its ambit voters who may choose to take photos for entirely
legitimate and legally innocuous reasons. Given the State’s inability to identify a single
instance in which digital photography facilitated vote buying or selling, despite the
State’s proffer that approximately two-thirds of Americans own and/or use a smartphone
with a camera and approximately three-quarters of Americans participate in some type of
social media website, this statute’s propensity to ensnare large numbers of voters seeking
to make a political point or to express pride in their voting by recording the moment or
simply to capture the moment for some legally innocuous reason, far exceeds the State’s
otherwise legitimate goal of protecting voters from vote-buying predators.
The State has argued on summary judgment that in addition to vote buying and
voter coercion, other activities, such as taking photographs of ballots in order to compile
a scrapbook commemorating one’s voting record and civic engagement, are likely
already illegal by virtue of other Indiana Code provisions, even if section 3-11-8-17.5
were found to be unconstitutional. See Defs.’ Br. at 17. This is an odd argument because,
if, as the State maintains, Indiana’s voting regulations already make illegal certain votebuying activities, including compiling photos of voters’ ballots in a scrapbook, one
wonders why the enactment of Ind. Code § 3-11-8-17.5 was necessary?
The State’s view appears to be that because voters are already barred by other
regulations and statutes from displaying marked ballots to other persons in order to reveal
their contents, this additional regulation barring Hoosiers from taking photographs or
digital images of their marked or unmarked ballots has a de minimis constitutional effect.
Defs.’ Br. at 17.
This argument seriously mischaracterizes and undervalues the constitutional rights
at issue in this case. The Supreme Court has recognized repeatedly that political speech
“occupies the core of the protection afforded by the First Amendment.” McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 346 (1995). Moreover, “[t]he use of illustrations or
pictures…serves important communicative functions 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). It is precisely for these reasons that fundamental free
speech rights, unlike other constitutional rights, may be abridged only in service of a
compelling state interest and only by the least restrictive alternative available.
We note that the ACLU has vigorously protested the State’s broad interpretation of Indiana’s other voting
regulations that might bar Hoosiers from compiling and sharing pictures of their ballots in a scrapbook. As those
statutes are not before us here, we make no ruling on whether they would in fact bar such an activity.
The State acknowledges that Ind. Code § 3-11-8-17.5 could have been more
narrowly drawn had the focus been on only those voters who take and share pictures of
their marked ballots as part of a vote-buying scheme or offense. Nonetheless, it maintains
that such a lesser restrictive alternative “would be much more difficult to enforce, as the
enforcing entity would be required to seek further proof or evidence that the individual
was photographing his or her ballot as part of a vote[-]buying scheme.” Defs.’ Br. at 20.
Given the nature of the rights at issue, the statute will not pass muster if it contains a
content-based restriction that shoots wide of the goal by targeting vast amounts of
protected political speech in an effort to limit a relatively small subset of problematic
speech, when other less restrictive alternatives exist. See Ashcroft v. ACLU, 542 U.S. at
666; see also Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988)
(“[W]e reaffirm simply and emphatically that the First Amendment does not permit the
State to sacrifice speech for efficiency.”) (citation omitted).
Because the scope of Ind. Code § 3-11-8-17.5 covers significantly more speech
than is necessary to accomplish its intended purpose and because less restrictive
alternatives exist to address and deal with the State’s concerns, the statute has not been
narrowly tailored, and, as such, it fails to withstand strict scrutiny.
B. Intermediate Scrutiny
For the reasons explained above, we conclude that Indiana Code § 3-11-8-17.5 is a
content-based restriction on speech which fails to withstand strict scrutiny. We also note
that, even if the statute had imposed a content-neutral restriction on speech, it would
nevertheless be unconstitutional. Content-neutral restrictions must be “narrowly tailored
to serve significant government interests, and  leave open ample alternative channels for
communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791
As the First Circuit explained in an analogous holding in Rideout, “intermediate
scrutiny [like strict 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.” 838 F.3d at 73
(quoting Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789,
810 (1984)). Given the lack of any compelling evidence that Indiana currently confronts
problems involving vote buying, not to mention vote buying facilitated by electronic
photography and the sharing of photos of election ballots, it is clear that Ind. Code § 311-8-17.5 fails to provide a solution to a real and substantive problem confronting the
State. Accordingly, we hold that the statute does not withstand even intermediate
scrutiny, given its failure to address or target significant state interests.
This is true because the statute also suffers from significant overreach. Even
content-neutral restrictions are required to be narrowly tailored to fend off any untoward
attempts by government to suppress speech based on mere convenience. See McCullen,
134 S.Ct. at 2534. “Where certain speech is associated with particular problems, silencing
the speech is sometimes the path of least resistance. But by demanding a close fit
between ends and means, the tailoring requirement prevents the government from too
readily sacrificing speech for efficiency.” Id. at 2355 (citation omitted).
As previously noted, when a content-neutral restriction is challenged, the State
bears the burden of showing that it does not restrict “substantially more speech than is
necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799.
Unlike a content-based restriction, a content-neutral restriction need not be the “least
restrictive or least intrusive” means of serving the government’s interests, but 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. at 798–99.
Here, the State has failed to establish that the potentially broad array of
photographs and images proscribed by Ind. Code § 3-11-8-17.5 are necessarily related to
or limited to those involved in vote buying and voter coercion. Thus, the burden imposed
on speech by the restrictions contained in this statute will fall on voters who are engaged
in legally innocuous activities. This statute clearly does not advance the State’s asserted
goals. At best, it provides an indiscriminate, blunt instrument to remedy a so-far
undetected problem. As such, along with other defects, it fails to survive intermediate
scrutiny for lack of narrow tailoring.
For the reasons detailed in this order, we hold that Ind. Code § 3-11-8-17.5
embodies a content-based restriction on speech that cannot survive strict or intermediate
scrutiny because it neither serves compelling or significant state interests nor is it
narrowly tailored to achieve those interests. Plaintiff ACLU’s Motion for Summary
Judgment [Docket No. 35] is therefore GRANTED and the State’s Cross Motion for
Summary Judgment [Docket No. 38] is DENIED. Final Judgment and Permanent
Injunction of the enforcement of Indiana Code § 3-11-8-17.5 shall enter accordingly.
IT IS SO ORDERED.
Gavin Minor Rose
ACLU OF INDIANA
Kenneth J. Falk
ACLU OF INDIANA
Jan P. Mensz
ACLU OF INDIANA
Dennis E. Mullen
INDIANA ATTORNEY GENERAL
Jefferson S. Garn
INDIANA ATTORNEY GENERAL
Nikki G. Ashmore
INDIANA ATTORNEY GENERAL
Betsy M. Isenberg
OFFICE OF THE ATTORNEY GENERAL
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?