          United States Court of Appeals
                     For the First Circuit


No. 15-2021

       LEON H. RIDEOUT, ANDREW LANGLOIS, BRANDON D. ROSS,

                     Plaintiffs, Appellees,

                               v.

                       WILLIAM M. GARDNER,
 in his official capacity as Secretary of State of the State of
                          New Hampshire,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Paul J. Barbadoro, U.S. District Judge]


                             Before

                   Lynch, Lipez, and Thompson,
                         Circuit Judges.


     Stephen G. LaBonte, Assistant Attorney General, with whom
Joseph A. Foster, New Hampshire Attorney General, and Laura E. B.
Lombardi, Senior Assistant Attorney General, were on brief, for
appellant.
     Gilles R. Bissonnette, with whom American Civil Liberties
Union of New Hampshire, William E. Christie, and Shaheen & Gordon,
P.A. were on brief, for appellees.
     Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School,
Justin Silverman, and Andrew F. Sellars on brief for The New
England First Amendment Coalition and The Keene Sentinel, amici
curiae.
     Eugene Volokh and Scott & Cyan Banister First Amendment
Clinic, UCLA School of Law on brief for the Reporters Committee
for Freedom of the Press, amicus curiae.
     Neal Kumar Katyal, Sean Marotta, Hogan Lovells US LLP,
Christopher T. Handman, and Dominic F. Perella on brief for
Snapchat, Inc., amicus curiae.


                     September 28, 2016
            LYNCH, Circuit Judge.     In 2014, New Hampshire amended a

statute meant to avoid vote buying and voter intimidation by newly

forbidding citizens from photographing their marked ballots and

publicizing such photographs.       While the photographs need not show

the voter, they often do and are commonly referred to as "ballot

selfies."     The statute imposes a fine of up to $1,000 for a

violation of the prohibition.       See N.H. Rev. Stat. Ann. § 659:35,

IV; id. § 651:2, IV(a).

            Three New Hampshire citizens who are under investigation

for violation of the revised statute, and who are represented by

the American Civil Liberties Union of New Hampshire, challenged

the statute's constitutionality.          The district court held that the

statute is a content-based restriction of speech that on its face

violates the First Amendment.        Rideout v. Gardner, 123 F. Supp.

3d 218, 221 (D.N.H. 2015).        The New Hampshire Secretary of State

appeals, arguing that the statute is justified as a prophylactic

measure to prevent new technology from facilitating future vote

buying and voter coercion.       We affirm on the narrower ground that

the statute as amended fails to meet the test for intermediate

scrutiny under the First Amendment and that the statute's purposes

cannot justify the restrictions it imposes on speech.

                                     I.

            In   the   late   nineteenth    century,   political   parties,

unions, and other organizations had the power to print their own


                                   - 3 -
ballots, each of which was easily identifiable and distinguishable

from other ballots by size and color.     This practice allowed the

ballot-printing organizations to observe how individuals voted at

the polls, which in turn created an obviously coercive environment.

During this period, New Hampshire undertook a series of reforms to

combat widespread vote buying and voter intimidation.      In 1891,

the State passed legislation requiring the Secretary of State to

prepare ballots for state and federal elections.     1891 N.H. Laws

ch. 49, § 10.    The State then passed a statute to forbid any voter

from "allow[ing] his ballot to be seen by any person, with the

intention of letting it be known how he is about to vote."       1911

N.H. Laws ch. 102, § 2.

          Since at least 1979, that provision has been codified in

relevant part at section 659:35, I, which, until 2014, read: "No

voter shall allow his ballot to be seen by any person with the

intention of letting it be known how he is about to vote except as

provided in RSA 659:20."    The exception in section 659:20 allows

voters who need assistance marking a ballot to receive such

assistance.     N.H. Rev. Stat. Ann. § 659:20.    In 2014, the New

Hampshire legislature revised section 659:35, I as follows:

     No voter shall allow his or her ballot to be seen by any
     person with the intention of letting it be known how he
     or she is about to vote or how he or she has voted except
     as provided in RSA 659:20.       This prohibition shall
     include taking a digital image or photograph of his or
     her marked ballot and distributing or sharing the image
     via social media or by any other means.


                                - 4 -
Id.   §   659:35,   I   (revisions    underlined).        The   penalty   for    a

violation of the statute is a fine of up to $1,000.              Id. § 659:35,

IV; id. § 651:2, IV(a).

            The original version of HB366, the bill amending section

659:35, I, provided that "[n]o voter shall take a photograph or a

digital image of his or her marked ballot," and was introduced by

State     Representative    Timothy    Horrigan      on   January    3,   2013.

Horrigan stated that "[t]he main reason this bill is necessary is

to prevent situations where a voter could be coerced into posting

proof that he or she voted a particular way."               The bill started

at the House Committee on Election Law, which recommended its

passage, and the members of which expressed rationales for the

bill similar to Horrigan's.

            The bill then went to the House Committee on Criminal

Justice and Public Safety.            Deputy Secretary of State David

Scanlan spoke in support of the bill, emphasizing the need to

prevent vote buying and to protect the "privacy of [the] ballot."

Though a majority of the members of the Criminal Justice Committee

supported the bill, a minority disagreed and filed a report

concluding that the bill was "an intrusion on free speech."                     In

order to restrict the bill's scope to activity connected to vote

buying, the minority suggested amending the bill as follows:

      This prohibition shall include taking a digital image or
      photograph of his or her marked ballot and distributing


                                     - 5 -
      or sharing       the image via social media or by any other
      means only       if the distribution or sharing is for the
      purpose of       receiving pecuniary benefit, as defined in
      RSA 640:2,       II(c), or avoiding harm, as defined in RSA
      640:3.1

                The majority of the Criminal Justice Committee did not

support this amendment, however, and HB366, absent the proposed

limitation, proceeded to the full House of Representatives, which

passed it by a vote of 198–96.                The bill was then introduced to

the   Senate      Committee     on   Public    and    Municipal    Affairs,   which

recommended the bill to the full Senate.                    The Senate passed the

bill,     and    the   Governor      signed   the    bill   into   law,   effective

September 1, 2014.

                The legislative history of the bill does not contain any

corroborated evidence of vote buying or voter coercion in New

Hampshire        during   the     twentieth     and    twenty-first       centuries.

Representative Mary Till, who authored the House Committee on



      1   New Hampshire law defines "pecuniary benefit" as "any
advantage in the form of money, property, commercial interest or
anything else, the primary significance of which is economic gain;
it does not include economic advantage applicable to the public
generally, such as tax reduction or increased prosperity
generally." N.H. Rev. Stat. Ann. § 640:2, II(c).
          New Hampshire law defines "harm" as "any disadvantage or
injury, to person or property or pecuniary interest, including
disadvantage or injury to any other person or entity in whose
welfare the public servant, party official, or voter is interested,
provided that harm shall not be construed to include the exercise
of any conduct protected under the First Amendment to the United
States Constitution or any provision of the federal or state
constitutions." N.H. Rev. Stat. Ann. § 640:3, II.


                                        - 6 -
Election Law's statement of intent for the bill, provided the sole

anecdotal allegation of vote buying.   She asserted:

     I was told by a Goffstown resident that he knew for a
     fact that one of the major parties paid students from
     St[.] Anselm's $50 to vote in the 2012 election.       I
     don't know whether that is true or not, but I do know
     that if I were going to pay someone to vote a particular
     way, I would want proof that they actually voted that
     way.

No evidence supported this hearsay allegation.   The district court

correctly held that "[t]he summary judgment record does not include

any evidence that either vote buying or voter coercion has occurred

in New Hampshire since the late 1800s."   Rideout, 123 F. Supp. 3d

at 224.

          As of August 11, 2015, when the district court issued

the summary judgment order on appeal here, the New Hampshire

Attorney General's Office had undertaken investigations of four

individuals for alleged violations of section 659:35, I, arising

from their publication of "ballot selfies"2 after voting in the

September 9, 2014 Republican primary election.      Three of those




     2    Amicus curiae Snapchat highlights the extent of the use
of "ballot selfies," defined not strictly as "a photo where the
photographer is also a subject," but rather as "all smartphone
pictures shared online, including those here . . . [and] any
picture that could violate the New Hampshire statute." As amici
curiae New England First Amendment Coalition and the Keene Sentinel
observe, "the term 'ballot selfie' has worked its way into the
popular lexicon to describe just such a photograph." See, e.g.,
David Mikkelson, Ballot Selfies, Snopes (Feb. 8, 2016),
http://www.snopes.com/dont-selfie-your-ballot.


                              - 7 -
individuals -- Leon Rideout, Andrew Langlois, and Brandon Ross --

are the plaintiffs in this case.3

           Rideout,    a    member   of   the    New     Hampshire   House    of

Representatives and a Selectman for Lancaster, New Hampshire, took

a photograph of his ballot, which showed that he had voted for

himself and other Republican candidates in the September 9, 2014

primary.    Later that day, he posted the ballot selfie on his

Twitter feed and on his House of Representatives Facebook page.

He then explained in an interview with the Nashua Telegraph,

published on September 11, 2014, that he took and posted the

photograph online "to make a statement," and that he thought

section 659:35, I was "unconstitutional."

           Langlois, who voted in Berlin, New Hampshire, did not

approve of the Republican candidates for the United States Senate,

and so wrote in the name of his recently deceased dog, "Akira,"

and took a photograph of his ballot.            When he returned home, he

posted the ballot selfie on Facebook with a note that read in part:

"Because   all   of   the   candidates       SUCK,   I   did   a   write-in   of

Akira . . . ."    He was then called by an investigator from the New

Hampshire Attorney General's Office and informed he was under

investigation.



     3    All three plaintiffs have entered into agreements with
the State to toll the three-month statute of limitations period
for section 659:35, I, pending resolution of this litigation.


                                     - 8 -
             Ross, who was a candidate for the New Hampshire House of

Representatives in the 2014 primary, voted in Manchester, New

Hampshire.      He took a photograph of his marked ballot, which

reflected     that    he   voted   for   himself      and    other    Republican

candidates.     He was aware of HB366's amendment to section 659:35,

I   and,   because    of   the   law's   penalties,    did    not    immediately

publicize the ballot selfie.        More than a week later, on September

19, 2014, having learned that other voters were under investigation

for violating section 659:35, I, Ross posted the ballot selfie on

Facebook with a note reading: "Come at me, bro."                Representative

Horrigan, the legislator who had introduced the amendment to

section 659:35, I, filed an election law complaint against Ross,

which led to an investigation of Ross by the state Attorney

General's Office.

             On October 31, 2014, the plaintiffs filed suit under 42

U.S.C. § 1983 in the U.S. District Court for the District of New

Hampshire.      The    complaint    sought   a   declaration         invalidating

section 659:35, I as unconstitutional on its face and as applied,

and an injunction forbidding New Hampshire from enforcing the

statute.     The parties filed cross-motions for summary judgment and

agreed that no material facts are in dispute.

             In a thoughtful opinion, the district court determined

that section 659:35, I is a content-based restriction on speech.

Rideout, 123 F. Supp. 3d at 229.             The court observed that the


                                     - 9 -
Supreme     Court     has      identified       statutes      as     content-based

restrictions "if [the] law applies to particular speech because of

the topic discussed or the idea or message expressed."                            Id.

(quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)).

The district court reasoned that "the law [under review] is plainly

a   content-based      restriction         on   speech   because     it      requires

regulators to examine the content of the speech to determine

whether it includes impermissible subject matter."                   Id.

            The     district    court      applied   strict      scrutiny,     "which

requires the Government to prove that the restriction furthers a

compelling interest and is narrowly tailored to achieve that

interest."        Id. at 228 (quoting Reed, 135 S. Ct. at 2231).

Secretary Gardner, the named defendant, asserted the prevention of

vote buying and voter coercion as the State's compelling interests

justifying the restriction.           Id. at 231.      The district court found

that   although      those     two    asserted       interests     were      "plainly

compelling in the abstract," id., "neither the legislative history

nor the evidentiary record compiled by the Secretary in defense of

this action provide any support for the view that the state has an

actual or imminent problem with images of completed ballots being

used to facilitate either vote buying or voter coercion," id. at

232.      And the court found that the statute was not narrowly

tailored because it was "vastly overinclusive" and would, "for the

most   part,      punish    only     the    innocent     while     leaving     actual


                                       - 10 -
participants in vote buying and voter coercion schemes unscathed."

Id. at 234.   Moreover, the court observed that the Secretary had

failed to demonstrate why narrower alternatives, such as a statute

"mak[ing] it unlawful to use an image of a completed ballot in

connection with vote buying and voter coercion," would not advance

the purported state interests.      Id. at 235.    The district court

held the statute to be unconstitutional on its face and granted

declaratory relief to the plaintiffs, trusting that such relief

absent an injunction would secure compliance by the Secretary.

Id. at 236.

                                  II.

          We give de novo review to an appeal both from a ruling

on cross-motions for summary judgment and from pure issues of law.

Maritimes & Ne. Pipeline, LLC v. Echo Easement Corridor, LLC, 604

F.3d 44, 47 (1st Cir. 2010); Am. Home Assurance Co. v. AGM Marine

Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006).           Here, no

material facts are in dispute; the issues are ones of law.            See

Buchanan v. Maine, 469 F.3d 158, 162 (1st Cir. 2006) (de             novo

review of issues of law on appeal from summary judgment).

          The First Amendment, which applies to the States through

the Fourteenth Amendment, provides that "Congress shall make no

law . . . abridging the freedom of speech."        U.S. Const. amend.

I.   Standards   to   evaluate   justifications   by   the   state   of   a

restriction on speech turn, inter alia, on whether the restriction


                                 - 11 -
focuses on content, that is, if it applies to "particular speech

because of the topic discussed or the idea or message expressed."

Reed, 135 S. Ct. at 2227.              "This commonsense meaning of the phrase

'content based' requires a court to consider whether a regulation

of speech 'on its face' draws distinctions based on the message a

speaker conveys."           Id.    Content-based regulations are subject to

strict scrutiny, which requires the government to demonstrate "a

compelling interest and . . . narrow[] tailor[ing] to achieve that

interest."     Id. at 2231 (quoting Ariz. Free Enter. Club's Freedom

Club PAC v. Bennett, 564 U.S. 721, 734 (2011)).                  Narrow tailoring

in the strict scrutiny context requires the statute to be "the

least restrictive means among available, effective alternatives."

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004).

              In   contrast,       content-neutral      regulations    require   a

lesser level of justification.              These laws do not apply to speech

based on or because of the content of what has been said, but

instead "serve[] purposes unrelated to the content of expression."

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).                       "The

principal     inquiry       in    determining      content   neutrality . . . is

whether the government has adopted a regulation of speech because

of disagreement with the message it conveys.                    The government's

purpose is the controlling consideration.                      A regulation that

serves purposes unrelated to the context of expression is deemed

neutral   .    .   .   ."        Id.   (citation   omitted).      Content-neutral


                                          - 12 -
restrictions are subject to intermediate scrutiny, which demands

that       the       law    be   "narrowly    tailored   to   serve    a    significant

governmental               interest."        Id.      "[U]nlike    a     content-based

restriction of speech, [a content-neutral regulation] 'need not be

the least restrictive or least intrusive means of' serving the

government's interests."                McCullen v. Coakley, 134 S. Ct. 2518,

2535 (2014) (quoting Ward, 491 U.S. at 798).

                 We reach the conclusion that the statute at issue here

is   facially          unconstitutional        even   applying    only     intermediate

scrutiny.        4     See, e.g., McCutcheon v. Fed. Election Comm'n, 134

S. Ct. 1434, 1446 (2014)("Because we find a substantial mismatch

between the Government's stated objective and the means selected

to achieve it, the aggregate limits fail even under the 'closely

drawn' test.               We therefore need not parse the differences between

the two standards in this case.").                    Like in McCutcheon, there is

a substantial mismatch between New Hampshire's objectives and the

ballot-selfie prohibition in section 659:35, I.5



       4  The district court chose to rely on reasoning that
section 659:35, I is a content-based restriction. Rideout, 123
F. Supp. 3d at 229. To reach this conclusion, it relied heavily
on the Supreme Court's recent decision in Reed. Id. at 228–29.
Secretary Gardner vigorously contests this conclusion.     As the
statute fails even intermediate scrutiny, we need not resolve the
question of whether section 659:35, I is a content-based
regulation.
       5  Because the statute fails under intermediate scrutiny,
we also need not reach the plaintiffs' argument that the statute
fails under the overbreadth doctrine. See, e.g., United States


                                             - 13 -
           In   order   to   survive   intermediate   scrutiny,    section

659:35, I must be "narrowly tailored to serve a significant

governmental interest."        McCullen, 134 S. Ct. at 2534 (quoting

Ward, 491 U.S. at 796).        Though content-neutral laws "'need not

be the least restrictive or least intrusive means of' serving the

government's interests," id. at 2535 (quoting Ward, 491 U.S. at

798), "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. (quoting Ward, 491 U.S. at

799).   The statute fails this standard.

           Secretary    Gardner    essentially   concedes   that   section

659:35, I does not respond to a present "'actual problem' in need

of solving."    Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 799

(2011) (quoting United States v. Playboy Entm't Grp., Inc., 529

U.S. 803, 822 (2000)).       Instead, he argues that the statute serves

prophylactically to "preserve the secrecy of the ballot" from

potential future vote buying and voter coercion, because ballot

selfies make it easier for voters to prove how they voted.             He

characterizes the amendment in section 659:35, I as a natural

update of the older version of the statute, done in response to

the development of "modern technology, such as digital photography




v. Stevens, 559 U.S. 460, 473 (2010).


                                  - 14 -
and social media," which may facilitate a future rise in vote

buying and voter intimidation schemes.

             As the district court noted, the prevention of vote

buying and voter coercion is unquestionably "compelling in the

abstract."     Rideout, 123 F. Supp. 3d at 231.                But intermediate

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.            Members of City Council

of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).

             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.                As the plaintiffs

note, "small cameras" and digital photography "have been in use

for at least 15 years," and New Hampshire cannot identify a single

complaint of vote buying or intimidation related to a voter's

publishing a photograph of a marked ballot during that period.

Indeed, Secretary Gardner has admitted that New Hampshire has not

received any complaints of vote buying or voter intimidation since

at least 1976, nor has he pointed to any such incidents since the

nineteenth century.       "[T]he government's burden is not met when a

'State   offer[s]    no   evidence    or   anecdotes    in     support   of    its

restriction.'"      El Día, Inc. v. P.R. Dep't of Consumer Affairs,


                                     - 15 -
413 F.3d 110, 116 (1st Cir. 2005) (alteration in original) (quoting

Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)).6

          Secretary Gardner also highlights scattered examples of

cases involving vote buying from other American jurisdictions.

See United States v. Thomas, 510 F.3d 714, 717 (7th Cir. 2007);

United States v. Shatley, 448 F.3d 264, 265–66 (4th Cir. 2006);

United States v. Johnson, No. 5:11–CR–143, 2012 WL 3610254, at *1

(E.D. Ky. Aug. 21, 2012).   But Secretary Gardner admits that "there

is no evidence that digital photography [of a ballot shared with

others by a voter] played a[ny] role in any of the examples" he

cites.   A few recent instances of vote buying in other states do

not substantiate New Hampshire's asserted interest in targeting

vote buying through banning the publication of ballot selfies.

          Secretary Gardner tries to anchor the state interest for

section 659:35, I on Burson v. Freeman, 504 U.S. 191 (1992)

(plurality opinion), which held that Tennessee had a compelling

interest in banning "the solicitation of votes and the display or


     6    Secretary Gardner does point to history abroad.       He
references the plebiscite held upon the German annexation of
Austria in 1938, in which "Adolf Hitler instituted election rules
that allowed voters to voluntarily show their ballot as they were
voting."    He also notes that Saddam Hussein employed ballots
"contain[ing] a code number which he believed could be traced back
to the voter." There is no evidence that these historical examples
from dictatorships have any material relationship to the present
political situation in the State of New Hampshire, a democracy.
Indeed, the restrictions on speech imposed by this amendment are
antithetical to democratic values and particularly impose on
political speech.


                               - 16 -
distribution of campaign materials within 100 feet of the entrance

to   a   polling    place."       Id.    at    193.    Burson   is   obviously

distinguishable.         The discussion in Burson of the long history of

regulating polling places and the location of elections makes clear

that the interest at stake in Burson centered on the protection of

physical election spaces from interference and coercion.              See id.

at   200–10.       The    plurality     acknowledged   in   Burson   that   two

competing interests had to be balanced: the right to speak on

political issues and the right to be free from coercion or fraud

at the polling place.        Id. at 211.

            The intrusion on the voters' First Amendment rights is

much greater here than that involved in Burson.             Section 659:35, I

does not secure the immediate physical site of elections, but

instead controls the use of imagery of marked ballots, regardless

of where, when, and how that imagery is publicized.

            But 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.        "[B]y demanding a close fit between ends and

means, the tailoring requirement [under intermediate scrutiny]

prevents the government from too readily 'sacrific[ing] speech for

efficiency.'"      McCullen, 134 S. Ct. at 2534 (third alteration in




                                      - 17 -
original) (quoting Riley v. Nat'l Fed'n of Blind of N.C., Inc.,

487 U.S. 781, 795 (1988)).7

            New Hampshire has "too readily forgone options that

could serve its interests just as well, without substantially

burdening" legitimate political speech.        Id. at 2537.     At least

two different reasons show that New Hampshire has not attempted to

tailor its solution to the potential problem it perceives.        First,

the prohibition on ballot selfies reaches and curtails the speech

rights of all voters, not just those motivated to cast a particular

vote for illegal reasons.        New Hampshire does so in the name of

trying to prevent a much smaller hypothetical pool of voters who,

New Hampshire fears, may try to sell their votes.         New Hampshire

admits that no such vote-selling market has in fact emerged.          And

to   the   extent   that   the   State   hypothesizes   this   will   make

intimidation of some voters more likely, that is no reason to

infringe on the rights of all voters.

            Second, the State has not demonstrated that other state

and federal laws prohibiting vote corruption are not already

adequate to the justifications it has identified.         See 18 U.S.C.

§ 597 (prohibiting buying or selling votes); 52 U.S.C. § 10307(b)



      7   Amicus curiae Snapchat notes, by analogy, that other
circuits have similarly held bans on petit juror interviews to
fail at narrow tailoring. See In re Express-News Corp., 695 F.2d
807, 808 (5th Cir. 1982); United States v. Sherman, 581 F.2d 1358,
1360–61 (9th Cir. 1978). We need not examine the analogy.


                                  - 18 -
(prohibiting          voter    coercion    or    intimidation);        id.    § 10307(c)

(prohibiting "pay[ing] or offer[ing] to pay or accept[ing] payment

either for registration to vote or for voting" in some federal

elections); N.H. Rev. Stat. Ann. § 659:40, I (prohibiting vote-

related bribery); id. § 659:40, II (prohibiting voter coercion or

intimidation); id. § 659:37 (prohibiting interfering with voters).

New Hampshire suggests that it has no criminal statute preventing

a voter from selling votes.               That can be easily remedied without

the far reach of this statute.                  The State may outlaw coercion or

the    buying        or   selling   of    votes    without    the      need    for   this

prohibition.8

               As     the     district    court     observed,       there      are   less

restrictive alternatives available:

       [T]he state has an obviously less restrictive way to
       address any concern that images of completed ballots
       will be used to facilitate vote buying and voter
       coercion: it can simply make it unlawful to use an image
       of a completed ballot in connection with vote buying and
       voter coercion schemes.

Rideout, 123 F. Supp. 3d at 235; see also McCullen, 134 S. Ct. at

2539       ("[T]he    Commonwealth       has    available    to   it    a     variety   of

approaches that appear capable of serving its interests, without

excluding individuals from areas historically open for speech and

debate.").          Indeed, as to narrow tailoring, the plaintiffs point


       8  Of course, another solution to New Hampshire's dilemma
of not having a statute that criminalizes vote selling would be to
enact such a statute.


                                          - 19 -
to the language of the very limitation proposed by the minority of

the House Criminal Justice Committee, but rejected by the majority

of   that    Committee.     The   ballot-selfie   prohibition   is    like

"burn[ing down] the house to roast the pig."         Butler v. Michigan,

352 U.S. 380, 383 (1957).

             There are strong First Amendment interests held by the

voters in the speech that this amendment prohibits.        As the Supreme

Court has said, "[t]he use of illustrations or pictures . . .

serves      important   communicative   functions:    it   attracts   the

attention of the audience 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).

             The restriction affects voters who are engaged in core

political speech, an area highly protected by the First Amendment.

As amici point out, there is an increased use of social media and

ballot selfies in particular in service of political speech by

voters.9     A ban on ballot selfies would suppress a large swath of


      9   Amicus   Snapchat   stresses   that   "younger   voters
participate in the political process and make their voices heard"
through the use of ballot selfies. According to the Pew Research
Center, in the 2012 election, "22% of registered voters have let
others know how they voted on a social networking site such as
Facebook or Twitter," "30% of registered voters [were] encouraged
to vote for [a particular candidate] by family and friends via
posts on social media such as Facebook and Twitter," and "20% of
registered voters have encouraged others to vote by posting on a
social networking site." Lee Raine, Pew Research Center, Social
Media and Voting (Nov. 6, 2012), http://www.pewinternet.org/
2012/11/06/social-media-and-voting/.


                                  - 20 -
political speech, which "occupies the core of the protection

afforded by the First Amendment,"               McIntyre, 514 U.S. at 346; see

also Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (holding

that there is a First Amendment interest in videotaping government

officials performing their duties in public places).                                  Ballot

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.

             Section       659:35,     I    reaches     and   prohibits          innocent

political speech by voters unconnected to the State's interest in

avoiding vote buying or voter intimidation.                          The plaintiffs'

examples     show        plainly     that     section      659:35,        I    "burden[s]

substantially       more    speech     than    is    necessary       to       further    the

government's legitimate interests."                 McCullen, 134 S. Ct. at 2535

(quoting Ward, 491 U.S. at 799); see also McIntyre, 514 U.S. at

351 (holding that, despite legitimate interest in reducing fraud,

government       could    not   impose      "extremely     broad     prohibition"        on

anonymous leafleting about ballot measures).                         Indeed, several

states have now expressly authorized ballot selfies, and those

states    have    not     reported    an    uptick    in   vote    buying        or    voter

intimidation.10


     10   See A.B. 1494, 2015-16 Reg. Sess. (Cal. 2016) (enrolled
Aug. 26, 2016) (amending statute to provide that "[a] voter may
voluntarily disclose how he or she voted if that voluntary act
does not violate any other law"); S.B. 1287, 52d Leg., 1st Reg.


                                           - 21 -
          New Hampshire may not impose such a broad restriction on

speech   by   banning   ballot   selfies   in    order   to   combat   an

unsubstantiated and hypothetical danger.        We repeat the old adage:

"a picture is worth a thousand words."

                                  III.

          The judgment of the district court is affirmed.




Sess. (Ariz. 2015) (making clear that there is no violation where
"[a] voter . . . makes available an image of the voter's own ballot
by posting on the internet or in some other electronic medium");
H.B. 72, Gen. Sess. (Utah 2015) (effective May 12, 2015) (amending
statute to make clear that statute "does not prohibit an individual
from transferring a photograph of the individual's own ballot in
a manner that allows the photograph to be viewed by the individual
or another"); S.B. 1504, 77th Or. Leg. Assemb., 2d Reg. Sess. (Or.
2014) (effective Jan. 1, 2015) (repealing language in statute that
"[a] person may not show the person's own marked ballot to another
person to reveal how it was marked"); H.P. 1122, 125th Leg., 1st.
Reg. Sess. (Me. 2011) (repealing prohibition of showing a "marked
ballot to another with the intent to reveal how that person
voted"); R.I. State Bd. of Elections, ERLID No. 8372, Rules and
Regulations for Polling Place Conduct (2016) (specifying that
"[t]he electronic recording of specific vote(s) cast by another
person is prohibited").


                                 - 22 -
