OVERBREADTH

Minnesota Voters Alliance v. Mansky

Issues

Does Minnesota Statute Section 211B.11(1), which prohibits individuals from wearing “political badges, political buttons, or political insignia” in the polling place, violate the First Amendment?

In this case, the Supreme Court will decide whether Minnesota’s Statute section 211B.11(1) political-apparel ban at polling sites violates the First Amendment. Petitioners Minnesota Voters Alliance, et al. (“MVA”) contend that the statute jeopardizes the right of voters to peacefully express themselves. According to MVA, the statute’s vague use of the word “political” allows poll workers to arbitrarily discriminate against voters wearing anything arguably political. MVA contends, under a strict-scrutiny analysis, that the ban on speech is not narrowly tailored to the government’s interest in promoting voting decorum and that there is no government interest that justifies a ban on all political apparel. Respondents Joe Mansky, et al. (“Mansky”) counter that the statute and its application have only prohibited political apparel that, from the perspective of a reasonable person, is related to ballot issues on election day in order to ensure that Minnesotans have the right to vote freely, without undue influence. Mansky maintains that the non-public forum analysis is the proper test to determine the statute’s constitutionality, and that the statute is reasonable and viewpoint neutral in light of the government’s goal to have polling sites focus on voting. This case will clarify the scope of the right to vote versus the right to self-expression, as well as analyze the rights of individuals when participating in democratic deliberation.

Questions as Framed for the Court by the Parties

Is Minnesota Statute Section 211B.11(1), which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?

Section 211B.11, entitled “Election Day Prohibitions,” of the Minnesota Fair Campaign Practices Act regulates behavior “near polling places.” Minn. Stat.

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United States v. Hansen

Issues

Are 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), which ban encouraging or inducing unlawful immigration for commercial advantage or private financial gain, unconstitutionally overbroad in violation of the First Amendment?

This case asks the Court to analyze 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), to determine whether statutes criminalizing “encouragement or inducement” of immigration violations violate the First Amendment. The United States argues that subsection (A)(iv) is constitutional because solicitation and facilitation of illegal actions is not protected under the First Amendment. The United States further states that subsection (A)(iv) primarily punishes conduct rather than speech, and that subsection (A)(iv) cannot be challenged by an individual who was prosecuted under § 1324(a)(1)(B)(i). Hansen counters that subsection (A)(iv) unconstitutionally prohibits abstract advocacy of illegal action. Hansen also argues that subsection (A)(iv) punishes large amounts of protected speech in addition to conduct, and that Hansen was convicted under both subsection (A)(iv) and subsection (B)(i). This case touches on important questions regarding free speech, immigration advocacy, and state criminal statutes.

Questions as Framed for the Court by the Parties

Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Helaman Hansen started his own immigration advising service and began to charge individuals for his services in October of 2012. United States v. Hansen at 1105. During the course of the program, Hansen would provide advice to undocumented immigrants on how to obtain United States citizenship. Id.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his insights into this case.

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