Burson v. Freeman

Decision Date26 May 1992
Docket NumberNo. 90-1056,90-1056
Citation119 L.Ed.2d 5,112 S.Ct. 1846,504 U.S. 191
PartiesCharles W. BURSON, Attorney General and Reporter for Tennessee, Petitioner v. Mary Rebecca FREEMAN
CourtU.S. Supreme Court

Respondent Freeman, while the treasurer for a political campaign in Tennessee, filed an action in the Chancery Court, alleging, among other things, that § 2-7-111(b) of the Tennessee Code—which prohibits the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place—limited her ability to communicate with voters in violation of, inter alia, the First and Fourteenth Amendments. The court dismissed her suit, but the State Supreme Court reversed, ruling that the State had a compelling interest in banning such activities within the polling place itself but not on the premises around the polling place. Thus, it concluded, the 100-foot limit was not narrowly tailored to protect, and was not the least restrictive means to serve, the State's interests.

Held: The judgment is reversed, and the case is remanded.

802 S.W.2d 210 (Tenn.1990), reversed and remanded.

Justice BLACKMUN, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY, concluded that § 2-7-111(b) does not violate the First and Fourteenth Amendments. Pp. 196-211.

(a) The section is a facially content-based restriction on political speech in a public forum and, thus, must be subjected to exacting scrutiny: The State must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. This case presents a particularly difficult reconciliation, since it involves a conflict between the exercise of the right to engage in political discourse and the fundamental right to vote, which is at the heart of this country's democracy. Pp. 196-198.

(b) Section 2-7-111(b) advances Tennessee's compelling interests in preventing voter intimidation and election fraud. There is a substantial and long-lived consensus among the 50 States that some restricted zone around polling places is necessary to serve the interest in protecting the right to vote freely and effectively. The real question then is how large a restricted zone is permissible or sufficiently tailored. A State is not required to prove empirically that an election regulation is perfectly tailored to secure such a compelling interest. Rather, legislatures should be permitted to respond to potential deficiencies in the electoral process with foresight, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights. Munro v. Socialist Workers Party, 479 U.S. 189, 195-196, 107 S.Ct. 533, 537-38, 93 L.Ed.2d 499. Section 2-7-111(b)'s minor geographical limitation does not constitute such a significant impingement. While it is possible that at some measurable distance from the polls governmental regulation of vote solicitation could effectively become an impermissible burden on the First Amendment, Tennessee, in establishing its 100-foot boundary, is on the constitutional side of the line. Pp. 198-211.

Justice SCALIA concluded that § 2-7-111 is constitutional because it is a reasonable, viewpoint-neutral regulation of a nonpublic forum. The environs of a polling place, including adjacent streets and sidewalks, have traditionally not been devoted to assembly and debate and therefore do not constitute a traditional public forum. Cf. Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505. Thus, speech restrictions such as those in § 2-7-111 need not be subjected to "exacting scrutiny" analysis. Pp. 214-216.

BLACKMUN, J., announced the judgment of the Court and delivered an opinion, in which, REHNQUIST, C.J., and WHITE and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which O'CONNOR and SOUTER, JJ., joined. THOMAS, J., took no part in the consideration or decision of the case.

Charles W. Burson, Nashville, Tenn., for petitioner.

John E. Herbison, Nashville, Tenn., for respondent.

Justice BLACKMUN announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY join.

Twenty-six years ago, this Court, in a majority opinion written by Justice Hugo L. Black, struck down a state law that made it a crime for a newspaper editor to publish an editorial on election day urging readers to vote in a particular way. Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). While the Court did not hesitate to denounce the statute as an "obvious and flagrant abridgment" of First Amendment rights, id., at 219, 86 S.Ct., at 1437, it was quick to point out that its holding "in no way involve[d] the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there." Id., at 218, 86 S.Ct., at 1437.

Today, we confront the issue carefully left open in Mills. The question presented is whether a provision of the Tennessee Code, which prohibits the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place, violates the First and Fourteenth Amendments.


The State of Tennessee has carved out an election-day "campaign-free zone" through § 2-7-111(b) of its election code. That section reads in pertinent part:

"Within the appropriate boundary as established in subsection (a) [100 feet from the entrances], and the building in which the polling place is located, the display of campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or posi- tion on a question are prohibited." Tenn.Code Ann. § 2-7-111(b) (Supp.1991).1

Violation of § 2-7-111(b) is a Class C misdemeanor punishable by a term of imprisonment not greater than 30 days or a fine not to exceed $50, or both. Tenn.Code Ann. §§ 2-19-119 and 40-35-111(e)(3) (1990).


Respondent Mary Rebecca Freeman has been a candidate for office in Tennessee, has managed local campaigns, and has worked actively in state-wide elections. In 1987, she was the treasurer for the campaign of a city-council candidate in Metropolitan Nashville-Davidson County.

Asserting that §§ 2-7-111(b) and 2-19-119 limited her ability to communicate with voters, respondent brought a facial challenge to these statutes in Davidson County Chancery Court. She sought a declaratory judgment that the provisions were unconstitutional under both the United States and the Tennessee Constitutions. She also sought a permanent injunction against their enforcement.

The Chancellor ruled that the statutes did not violate the United States or Tennessee Constitutions and dismissed respondent's suit. App. 50. He determined that § 2-7-111(b) was a content-neutral and reasonable time, place, and manner restriction; that the 100-foot boundary served a compelling state interest in protecting voters from interference, ha- rassment, and intimidation during the voting process; and that there was an alternative channel for respondent to exercise her free-speech rights outside the 100-foot boundary. App. to Pet. for Cert. 1a.

The Tennessee Supreme Court, by a 4-to-1 vote, reversed. 802 S.W.2d 210 (1990). The court first held that § 2-7-111(b) was content-based "because it regulates a specific subject matter, the solicitation of votes and the display or distribution of campaign materials, and a certain category of speakers, campaign workers." Id., at 213. The court then held that such a content-based statute could not be upheld unless (i) the burden placed on free-speech rights is justified by a compelling state interest and (ii) the means chosen bear a substantial relation to that interest and are the least intrusive to achieve the State's goals. While the Tennessee Supreme Court found that the State unquestionably had shown a compelling interest in banning solicitation of voters and distribution of campaign materials within the polling place itself, it concluded that the State had not shown a compelling interest in regulating the premises around the polling place. Accordingly, the court held that the 100-foot limit was not narrowly tailored to protect the demonstrated interest. The court also held that the statute was not the least restrictive means to serve the State's interests. The court found less restrictive the current Tennessee statutes prohibiting interference with an election or the use of violence or intimidation to prevent voting. See Tenn.Code Ann. §§ 2-19-101 and 2-19-115 (Supp.1991). Finally, the court noted that if the State were able to show a compelling interest in preventing congestion and disruption at the entrances to polling places, a shorter radius "might perhaps pass constitutional muster." 802 S.W.2d, at 214.

Because of the importance of the issue, we granted certiorari. 498 U.S. ----, 111 S.Ct. 1578, 113 L.Ed.2d 644 (1991). We now reverse the Tennessee Supreme Court's judgment that the statute violates the First Amendment of the United States Constitution.


The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech. . . ." This Court in Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940), said: "The freedom of speech . . . which [is] secured by the First Amendment against abridgment by the United States, [is] among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a State."

The Tennessee statute implicates three central concerns in our First Amendment jurisprudence: regulation of political speech, regulation of speech in a public forum, and regulation based on the content of the speech. The speech restricted by § 2-7-111(b) obviously is political speech....

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