Arriving at the polls on November 5, some voters will be tempted to capture and post a selfie with their completed ballot, perhaps to let followers know who they voted for or maybe because it’s nobler than foodstagramming. Motivations aside, questions arise about the practice’s legality and whether the First Amendment’s guarantee of free speech bars states from blocking ballot selfies.

Let’s assume for argument’s sake that––despite statutes promoting ballot secrecy and voting integrity––the First Amendment safeguards both silent, non-disorderly, ballot-selfie taking and publishing those images after exiting a polling place. The rationale is that these are exercises in both “core political speech” and “individual self-realization.” Even if that’s true, here’s a plea for self-restraint by all potentially involved: (1) would-be ballot-selfie takers; (2) government officials who would aggressively act against them; and (3) aggrieved ballot-selfie takers who want to (and sometimes do) sue government officials who are enforcing state laws.

Surely there are more important hills on which to plant one’s First Amendment flag and spend a judge’s time than safeguarding a selfie. Similarly, government officials undoubtedly have more significant tasks than tracking down and going after people who discreetly take ballot selfies in non-disruptive, non-distracting ways.

Simply because the First Amendment probably protects such expressive conduct doesn’t mean we should do it. Exercising phone-off solemnity inside polling places and voting booths––especially booths not concealed by curtains and where nearby voters can be distracted by look-at-me selfie takers and even end up in the photos themselves––is a good thing. Forgoing a ballot selfie forestalls possible confrontation with poll workers and even potential litigation, while simultaneously allowing poll workers to concentrate on the critical task of ensuring orderly operations and guarding against more pressing issues like preventing voter fraud, intimidation, or coercion.

Where does the law stand on ballot selfies––their taking and publication? First, there’s no federal statute providing a uniform set of rules. Instead, a patchwork of state statutesexists, including some that allow it and some that don’t via photography bans in polling places and rules prohibiting letting others see another person’s completed ballot to let them know how the person voted. According to a federal complaint filed in August by ballot-selfie taker and posterSusan Hogarth that challenges North Carolina statutes banning them, ballot selfies today are “legal in 31 states.” However, as Professor David Hudson recently wrote, “[i]t likely would take a U.S. Supreme Court decision in a ballot-selfie case to definitively resolve the issue” of whether banning their taking and posting violates the First Amendment.

What do courts say? In a 2016 opinion involving a challenge to a Michigan statute, the US Court of Appeals for the Sixth Circuit observed that:

many Michigan voting stalls . . . are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene.

The case culminated in 2019 with a settlement agreement in which Michigan agreed to “amend [its] polling place photography and cell phone instructions to allow voters to photograph their own marked ballot within a voting station or voting booth.” The settlement, however, didn’t change Michigan’s prohibition

on individuals . . . [t]aking ‘selfies’ of themselves, either in the voting booth or anywhere within the area where people are voting . . . [or] [t]aking any other type of photograph within the area where people are voting.

On the other hand, the First Circuit in 2016 in Rideout v. Gardner rejected speculative and hypothetical arguments by New Hampshire that its law banning ballot selfies was justified by interests in preventing “vote buying or voter intimidation.” The Court added that “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.” In short, New Hampshire engaged in legislative overkill because it “had not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified.”

Embracing the First Amendment side of the equation, the First Circuit wrote that “[b]allot 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.” It called ballot selfies “core political speech.”

Here’s a self-help solution for selfie-obsessed voters: Wait a minute after voting, exit the polling place visibly sporting an “I Voted” sticker, and take a smiling photo of yourself near (or holding) a sign for your favorite candidate, perhaps giving a thumbs-up or peace-sign gesture. Same message: I voted for this person.

Learn more: Flipping Frames on the New York Times’s NetChoice Profile | The Benefits of Playing Small Ball and Other Observations About Social Media Litigation at the Supreme Court | The Judiciary, Generative AI, and Ordinary Meanings: Kevin Newsom Leads the Way | Transparently Unconstitutional: California Strikes Out Again with Compelled-Speech Mandates