Dear Eric Trump: Do Not Be Shamed Into Deleting Your Free Speech By A Dumb New York State Law

from the selfie-ish dept

We don’t do partisan politics here at Techdirt, but we sure as hell do talk about free speech rights. And, as we’ve said many times, there is probably no type of speech more deserving of protection than political speech. It’s what makes all the state laws against so-called “ballot selfies” so frustrating: they go to such great lengths battling the hypothetical evils arising from people taking and sharing photos of their completed ballots that they wind up stifling very real speech. And even as some state courts manage to understand that these laws are a clear violation of the First Amendment, states like New York have courts that don’t.

Which brings us to Eric Trump, son of The Donald, who tweeted out the following this morning.

Should you be unable to see it, Eric Trump tweeted out an image of his completed ballot, in which he voted for his father, because duh. Almost immediately several news organizations, such as the New York Daily News and The Verge, pounced on the tweet with headlines proclaiming that Eric Trump “broke the law” with the tweet. And that is really, really stupid from news organizations that should really, really know better. Institutions that rely on the First Amendment for their very existence ought not to be cheering on laws that violate it. And, really, for those of us that hate these ballot selfie bans, there is no better scenario than having a high-profile member of the public violate them, so that we can get the laws changed.

But, of course, Eric Trump deleted the tweet almost immediately. He shouldn’t have. He should have insisted on standing by his free speech rights, rights that have been fought for by many so that political speech can remain free. Whatever you might think of this election, whatever you might think of the Trump family, advocates for free and open speech are required to stand by those rights. There is no joy in seeing the press shame Eric Trump into deleting his ballot selfie tweet. He should instead put it back up, stand by it, and have pride in his right to post it. And if that means defending that right against a constitution-violating state law, then so be it. It’d certainly be the patriotic thing to do.

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Comments on “Dear Eric Trump: Do Not Be Shamed Into Deleting Your Free Speech By A Dumb New York State Law”

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46 Comments
Baron von Robber says:

Ars has an article on the same. Seems it’s ok in some states (and details of elections are state to state). In general, I think it should be ok, but it seems in NY, it’s still illegal. Perhaps bribery.

But the funny part is the pics of them (Eric and Don) looking over at their wive’s voting.
http://arstechnica.com/tech-policy/2016/11/eric-trump-tweeted-then-deleted-an-illegal-ballot-selfie/?comments=1&post=32221189

art guerrilla (profile) says:

Re: Re:

yeah, just voted at lunchtime, and polling place had signs about turning off cell phones, and i asked old geezer there if that was ‘legal’ (a pretty much meaningless word mow), and he just burbled some inanity…
no particular interest in taking pix of ballot, but the principle of the thing was annoying…

Baron von Robber says:

Re: Re: Re:

I’ve heard a good point for not allowing. Bribery or more likely, blackmailing. In particular, from one’s boss. “Vote this way and take a pic to prove it or it’s your job.” Some places have a history of this kind of coercion.
With selfies, it’s much easier to do. So weighing the privacy issue and the 1st issue, I think I favor the former. It would be nice to express myself that way, but to be bullied by a boss (or anybody) into voting a certain way would infuriate me more.

Thad (user link) says:

Re: Re: Re: Re:

Bribery or more likely, blackmailing. In particular, from one’s boss. "Vote this way and take a pic to prove it or it’s your job."

But it doesn’t prove a damn thing. All you have to do is take a photo of the ballot, and then tell the poll workers you spoiled it and need another one.

(Other posters have pointed out, in previous threads, that you could take a video of yourself filling out your ballot and then submitting it. I’m okay with preventing that from happening, if anybody ever does it; not so much because I’m concerned about votes being compromised but because we don’t need people walking around the polls holding up their phones the whole time instead of watching where the hell they’re going.)

Some places have a history of this kind of coercion.

Yes, in the nineteenth century.

The world we live in today isn’t the same one as the one in which these laws were passed. Vote tampering is not a serious problem. There are some pretty clear reasons why:

First is that it requires a lot of risk for very little reward. Even close races are often separated by hundreds of votes. It takes a whole lot of tampering to swing an election, and the more people you threaten or bribe, the higher the likelihood that one of them is going to report you to the authorities.

And if you’ve got that kind of dough, why not spend it on advertising instead? It’s legal and it influences more people. Or why not spend it on campaign contributions to both candidates, just to hedge your bets?

tl;dr the problems that these laws are meant to fix aren’t actually problems anymore. This is a pointless restriction on free speech.

And for crying out loud it’s not like we didn’t know who Eric Trump was going to vote for.

David Smith (profile) says:

Ehhhh…. There’s a reason that such things are against the law. It might seem cute for the above case, but vote buying (ie: paying for votes, and then having proof that such vote was made) is a type of fraud (or blackmail) we can guard against (sort of), and not guarding against fraud is pure negligence.

Cell phones everywhere has kind of broken the picture/evidence aspect, even if there are some stations that try to keep phones out of the voting booth. But anonymous and secure voting is one of the necessities of a working democratic system (and part of what makes it so damn difficult). I’m not even sure it’s possible to solve the problem entirely, anymore, but it should not be so casually dismissed.

Ignoring that is definitely not something I’d expect from TechDirt.

Leigh Beadon (profile) says:

Re: Re:

Surely if such a law is on the frontlines of preventing vote buying, then we’d see much more evidence of vote buying in the 21 states where ballot selfies are legal, no? Besides, clearly the best way to provide evidence of your vote in an illegal vote-buying scheme would be to send the photo privately to the person paying you – so enforcing the “no photography in the polling place” law at the level of people who are posting selfies on Twitter seems entirely pointless. As for whether people should be searched for cameras before they vote — well, I think we’d require evidence that vote buying is a huge problem before that came anywhere close to an acceptable violation of civil liberties OR a reasonable administrative delay to add to the voting process.

TechnoMage (profile) says:

Re: Re: Re:

“Surely if such a law is on the frontlines of preventing vote buying, then we’d see much more evidence of vote buying in the 21 states where ballot selfies are legal, no?”

As a former Head Elections Official for my precinct I can tell you that you being either naive or disingenuous. There are very good reasons why ballots are secret (Unless the person themselves invites in someone else to assist them with the ballot, depending on state). The reason is because we HAD voter -intimidation- rackets in the past, and that is why the system is setup the way it is now.

Simple Example:

If you work at a local coal mine and your boss tells you that you ‘must’ vote for candidate A… then he can fire you for ‘being rude’ or whatever BS made up excuse he uses when he finds out you voted candidate B…

“Vote buying” really isn’t the reason this law exists(Even if that is the reason why it was ‘extended’ to include selfies in the ballot box)… it exists to protect those who are vulnerable to out-sized influence from those who can impact their lives. (The poor, minorities, single parents, etc. (yes can overlap)).

I specifically asked a lot of these questions when I was undergoing my election day training… to the point where I ended up having to go ask a local political science/history professor.

I’d say voter/vote/election protection outweighs this ‘single’ form of ‘speech’ (which we all know has limits on it already, such as ‘fire in theater’ or promoting violence, or even ‘talking about assassinating POTUS’, etc.)

Leigh Beadon (profile) says:

Re: Re: Re: Re:

Okay but… 21 states don’t have such laws. Many more states it is unclear. Is such voter intimidation rampant in those places? And moreover, does shaming people who proudly post their ballots on twitter accomplish anything related to that problem?

Besides – I didn’t call for an end to all forms of ballot secrecy, and I certainly don’t think anyone should be able to find out who you voted for if you don’t want them to…

Thad (user link) says:

Re: Re: Re:3 Re:

Yes, it was. There were big problems with unions coercing their members into voting a certain way back in the late nineteenth and early twentieth centuries; that’s why ballots are secret now.

That was a long time ago. Corporations and unions have different ways of influencing elections now. The new ways are easier, more effective, and legal. Trying to rig an election one vote at a time is an incredibly risky and failure-prone tactic, and until I see evidence — not hypotheticals, but evidence — that it’s becoming a serious issue again, I’m gonna have to err on the side of the First Amendment.

I.T. Guy says:

Re: Re: Re: Re:

Need change? Just vote a few times:
https://www.youtube.com/watch?v=95fr0PVhZVw

“As a former Head Elections Official” going all appeal to authority?

followed up with ad-hominem: “I can tell you that you being either naive or disingenuous”

“If you work at a local coal mine and your boss tells you”
That is different from vote buying and is Voter intimidation.

“Surely if such a law is on the frontlines of preventing vote buying, then we’d see much more evidence of vote buying in the 21 states where ballot selfies are legal?”

Maybe you missed this in the originating comment:
“vote buying (ie: paying for votes, and then having proof that such vote was made)”
Now who is being disingenuous?

Kaemaril (profile) says:

Re: Re: Re: Re:

" (which we all know has limits on it already, such as ‘fire in theater‘ or promoting violence"

What, this again?

‘Promoting violence’?

"the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Brandenburg v. Ohio.

Anonymous Coward says:

Re: Re: Re:

Not necessarily. You can have vote buying be a very localized phenomena, and that’s almost entirely what it is. Local problems. Those not ignorant of history will remember their lessons on what happened with Tammany Hall in New York, or the Daley machine in Chicago. Just because it doesn’t happen everywhere doesn’t mean it doesn’t happen at all. This isn’t about free speech, and arguably, despite what people may have read elsewhere, it’s not at all clear cut how the courts would rule on the individual state laws on photographs in voting precincts. Not all of them are created equal.

The voting precinct is likely not a public forum and the government has a legitimate interest in keeping the sanctity of the voting booth safe and free from intimidating tactics, this would include photographing people while in the process of exercizing their voting rights. I would take a very dim view of someone filming or taking pictures inside any voting precinct in which I’m voting. That’s inherently intimidating to many people.

I.T. Guy says:

Re: Re:

I don’t think it was mentioned because in reality it is not an effective means of swaying an election.

How many would you have to buy? a million? Two? How much does a vote go for? $10 $20 $50 bucks?

A million votes bought and nobody would talk?
(just a number for the sake of argument most likely much larger. A calculation of Mexico’s 2012 election was 1.6m and it being 1/3 the population of the US)

Anonymous Coward says:

Re: Re:

lol, he said “working democratic system”, haha, doesn’t he know where he lives?

This is an oligarchical republic, we all know the 1% are the oligarchs and we the sheeple have elected them to help govern us poor little sheeple who can’t do anything ourselves.

Why secure the voting machines? They don’t really mean anything, the counts don’t mean anything, the polls don’t mean anything, the oligarchs (electorial college) are the only votes that matter, and they have carefully crafted the public polls and votes to match their desired result. This was over days ago and nobody even noticed.

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