Author: Anonymous, Associate Member, University of Cincinnati Law Review
The 2016 Presidential election shocked many, and for many reasons. In particular, following the election, countless experts and analysts recognized their failure to appreciate the power and influence of social media platforms over the election. Given the exponential growth of social media, combined with the Millennial generation’s maturity into adulthood and eligibility to vote, it became clear that our political landscape was changing.
Indicative of the unchartered collision of social media and Presidential election was the introduction of the “ballot selfie” to our modern vocabulary. On October 24th, 2016, singer Justin Timberlake took a photo of himself, hereafter referred to as a “selfie,” inside the voting booth at a Shelby County, Tennessee, polling location. Mr. Timberlake shared the photo on the social media platform Instagram. Along with the photo, Mr. Timberlake urged everyone to vote and referenced “Rock the Vote,” the popular celebrity endeavor to encourage young voter turnout. Unbeknownst to Mr. Timberlake, Tennessee had recently passed a new law that “use [of] a mobile device of any kind to take pictures, video or to make a phone call with that device inside polling places” is illegal. Although later retracted, the Shelby County District Attorney’s Office said that Mr. Timberlake’s ballot selfie was under investigation for illegal activity.
Unsurprisingly, the warning from the District Attorney took many off guard because so few citizens know the intricacies of the law that govern them. Many news outlets covered the story and it became clear that the laws covering “ballot selfies” varied significantly across the country. However, this lack of uniformity may be unsustainable because social media is about expression and regulation of speech, especially political speech, is not taken lightly by our First Amendment jurisprudence.
The Exploding Popularity of Social Media
Nearly 70% of adult Americans own a smartphone, with that number jumping to 86% among Americans aged 18-29. Unsurprisingly, mobile devices equipped with internet or data capabilities, such as smartphones, have contributed to the exponential growth of social media usage; constant access and ease of use, made possible by smartphones, has permitted social media to become a powerful force within our society. With a combined 2.1 billion users, Facebook, Instagram, and Snapchat are a few of the most popular social media platforms, and all are used heavily for the sharing of photographs. Snapchat is relatively new to the social media scene, whereas Facebook and Instagram have been around long enough to report user data. Since 2011, Facebook grew from 845 million users to 1.5 billion users and Instagram grew from 15 million users to 400 million users. Currently, Snapchat has 150 million users.
Political speech: Millennial’s Changing the Political Forum
Given the explosion of social media use, political speech encompasses more mediums more than ever. Specifically within the Millennial generation, social media platforms constitute a significant forum for political discussion and expression. The Millennial generation is the first generation to have grown up with computers, where effortlessly using technology is second-nature. As the Millennial generation has aged into adulthood, with Millennials ranging in age from 19-35 years old, social media has become a driving force in tapping into the economic, social, and political power of the generation. At the time of the first Presidential debate between Hillary Clinton and Donald Trump, the debate was the most “tweeted” debate ever with over ten million “tweets” submitted on Twitter over the course of the ninety minute debate.
After the election, it became clear that President Trump’s early harnessing of the power of social media has been attributed as one of the driving forces behind his success in the 2016 presidential election. With over 90% of Millennials using at least one form of social media, the impact of social media on our political landscape is undeniable.
Ballot Selfies and the First Amendment: Will States Lose Control over the Election Process?
In the aftermath of Mr. Timberlake’s near brush with the law, countless news outlets covered the story, either clarifying the local laws pertaining to their audience or calling for nationwide reform to make the election laws governing social media uniform. Indeed, the laws governing the sharing of photographs, or selfies, taken during voting or of one’s ballot vary significantly across the country. Even locally, within the tri-state area surrounding the University of Cincinnati College of Law, the laws differ. In Ohio, state law prohibits sharing a ballot that has been marked “with the intention of letting it be known how the elector is about to vote”. Whereas in Kentucky and Indiana, there are no restrictions on sharing photos of oneself at the polling location or of the ballot. Yet in Pennsylvania, each county can set its own rules governing the sharing of photos. This lack of uniformity has prompted states to recognize that their ballot laws are anachronistic, misplaced in our society’s current practice of documenting and sharing every moment of our day on various social platforms.
Under the Article 1 of the Constitution, states have control over the process in presidential election, which accounts for the lack of uniformity amongst the states on the legality of “ballot selfies.” However, the constitutionality of the bans on “ballot selfies” have made their way to the courts, on First Amendment grounds, and social media giants are entering the fray. Snapchat filed an amicus brief in Rideout v. Gardner, an appeal pending in the First Circuit, agreeing that New Hampshire’s ban on “ballot selfies” is a content-based restriction on free speech and urging the Court to recognize that “ballot selfies” are a “uniquely powerful form of political expression.” Proponents of the ban on “ballot selfies” argue that the photographs jeopardize the integrity of the secret ballot, create a more dangerous polling environment, and create a situation ripe for vote-buying. In its amicus brief, Snapchat rejects those arguments as unfounded and instead offers that states which ban “ballot selfies” are more interested in regulating “the effect that such a powerful and novel form of political expression may have.”
In the end, the First Circuit correctly held that the ban on “ballot selfies” was an impermissible restriction on free speech. Speculation on the part of those supporting the ban, including a lacking of demonstrable harm, swayed the Court to hold the ban unconstitutional. However, given the immense popularity of social media, the First Circuit will not be the only court to address this issue. Currently, twenty-one states and the District of Columbia permit “ballot selfies.” Whereas seventeen states explicitly ban “ballot selfies” and twelve have not taken a stance on the legality of such photographs. Crookston v. Johnson, a case before the Sixth Circuit, upheld the ban temporarily by staying an injunction on the ban.  Crookston might create a split between the Circuit Courts.
Now that the 2016 election has passed, federal courts and state legislators must consider the legality of “ballot selfies.” Given that the “ballot selfie” is a form of political expression, and First Amendment protections have been implicated, state control over the election process might be lessened by federal court rulings. If a split among the Circuit Courts ensues, the issue may find its way to the Supreme Court. Without a clear justification for banning such a form of political speech, bans on “ballot selfies” are unlikely to pass a strict scrutiny review. With four more years until our next Presidential election, there is no better time for the courts to address the issue.
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 The tri-state includes Ohio, Kentucky, and Indiana.
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 Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016). The Court in Crookston was primarily concerned with the timing of the case because it came directly before the 2016 election, giving Michigan little time to reconcile a ruling.