Kiel Brennan-Marquez & Douglas M. Spencer
The First Amendment forbids most limits on political speech, but it permits buffer zones around polling stations on Election Day. This exception to the deregulatory thrust of election speech doctrine is striking, and strikingly under-theorized. In what follows, we excavate the core principle that underpins the buffer zone exception—decisional solemnity—and we argue that, properly understood, the same principle justifies the use of temporal buffer zones: stricter-than-normal regulations on certain types of political speech in the immediate vicinity of an election. Voting, we argue, is an act different in kind from the deliberation that precedes it. Accordingly, governmental efforts to ensure the sanctity of voting can survive exacting First Amendment scrutiny in a manner that similar efforts to quell or influence expression throughout the campaign process cannot. For all the case law (and scholarship) arguing that campaigning should be insulated from legal control, there is an under-appreciated interest in subjecting voting—as distinct from campaigning—to legal controls that help to guarantee its solemnity. Physical buffer zones are paradigmatic. Temporal buffer zones are a natural extension.
Associate Professor of Law and William T. Golden Scholar at the University of Connecticut. Associate Professor of Law, University of Colorado, Boulder.
