Fun with Justice Alito during SCOTUS oral arguments
How often does laughter repeatedly rock the Supreme Court during oral arguments? How often are oral arguments at the Supreme Court this hilarious?
Defending a state law allowing censorship based on political content before the justices of the Supreme Court is not a job I would volunteer for (even if I were qualified for it, which I am not). So attorney Donald Rogan, representing Minnesota in the case Minnesota Voters Alliance v. Mansky, 16-1435.a, may have had a thankless task. Nonetheless, Justice Alito had a bit of fun leading him through questioning of what kinds of political content would or would not be allowed in various hypothetical situations.
The law in question allowed local election officials to bar people wearing clothing with political messages from polling places (transcript).
JUSTICE ALITO: The problem is that so many things have political connotations, and the connotations are in the eye of the beholder. And on Election Day, you're going to have hundreds, maybe thousands of officials in Minnesota, and every one of them probably thinks that he or she is the reasonable observer, and they're making a determination about whether something has political connotations. And in one of your elections, in 2016, I think, you had the President was running, members of the House were running, members of the State Legislature were running, State Judges were running. There were local elections. There was one ballot question. So the observer would have to know all of the issues in all of those campaigns and would have to decide whether something had connotations regarding any of those issues. It's – it's an invitation for arbitrary and – arbitrary enforcement and enforcement that's not even-handed. And I – I have no idea where the line lies. Some of the examples that were raised in the Eighth Circuit were really pretty – and – and the state said, yes, that would be prohibited. An AFL-CIO shirt, that would be prohibited?
MR. ROGAN: So, Your Honor, the – I think the – the answer is that it has two components to it. It has to be understood as relating to electoral choices and it has to be well-known. So many of the examples that – that you talked about simply wouldn't be well-known. It's – it's a reasonable observer sitting in the polling place on Election Day, after there's been a campaign, after there's been the issues that have been raised that are relevant to the election, deciding whether or not they believe that it's reasonable to understand the message being –
JUSTICE ALITO: Yeah. Well, that makes it worse, that it has to be – well, it's not only does it have to be a political message, but it has to be well-known. What – what is well-known?
MR. ROGAN: Well, Your Honor, the political has a – has a plain meaning in our statute based on that it – it's influencing elections. What I – all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place.
JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?
MR. ROGAN: A shirt with a rainbow flag? No, it would – yes, it would be – it would be permitted unless there was – unless there was an issue on the ballot that – that related somehow to – to gay rights.
JUSTICE ALITO: How about a shirt that says "Parkland Strong"?
MR. ROGAN: No, that would – that would be – that would be allowed. I think – I think, Your Honor -
JUSTICE ALITO: Even though gun control would very likely be an issue?
MR. ROGAN: To the extent –
JUSTICE ALITO: I bet some candidate would raise an issue about gun control.
MR. ROGAN: Your Honor, the – the – the line that we're drawing is one that is – is related to electoral choices in a –
JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed?
MR. ROGAN: The – the Parkland?
JUSTICE ALITO: Yeah.
MR. ROGAN: I – I think – I think today that I – that would be – if – if that was in Minnesota, and it was "Parkland Strong," I – I would say that that would be allowed in, that there's not –
JUSTICE ALITO: Okay. How about an NRA shirt?
MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication – and I think what you're getting at, Your Honor –
JUSTICE ALITO: How about a shirt with the text of the Second Amendment?
MR. ROGAN: Your Honor, I – I – I think that that could be viewed as political, that that – that would be – that would be –
JUSTICE ALITO: How about the First Amendment? (Laughter.)
MR. ROGAN: No, Your Honor, I don't – I don't think the First Amendment. And, Your Honor, I –
CHIEF JUSTICE ROBERTS: No – no what, that it would be covered or wouldn't be allowed?
MR. ROGAN: It would be allowed.
CHIEF JUSTICE ROBERTS: It would be?
MR. ROGAN: It would be. And – and I think the – I understand the – the idea, and I've – I've – there are obviously a lot of examples that – that have been bandied about here –
JUSTICE ALITO: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?
MR. ROGAN: No, Your Honor, I don't think that that would be under – under our statute. And I think –
JUSTICE ALITO: How about "All Lives Matter"?
MR. ROGAN: That could be, Your Honor, that could be – that could be perceived as political. And I – I think obviously, Your Honor, there – there are some hard calls and there are always going to be hard calls. And that – that doesn't mean that the line that we've drawn is – is unconstitutional or even unreasonable.
JUSTICE ALITO: How about an "I Miss Bill" shirt? (Laughter.)
MR. ROGAN: I'm sorry, Your Honor? I didn't –
JUSTICE ALITO: "I Miss Bill," or to make it bipartisan, a "Reagan/Bush '84" shirt?
MR. ROGAN: Yes, Your Honor, I believe that that's political.
JUSTICE BREYER: You can do this too, I guess, with the – can't you, with the need in state-run hospitals to restrict conversation in certain areas to medical matters, the need in law schools or other schools to restrict conversation in the class to the subject that is being taught, including politics, the need in – I don't know, you make it up, but I – because that's what we're doing, that's what I'm doing, and I can think of many, many instances where thousands, perhaps millions, of people have to have the authority to operate a standard, to restrict the speech to the subject that's at hand. And so, if, in fact, we are trying to have a place where a person has reflective thought for a moment after the hurly-burly of the campaign, this problem will inevitably arise.
Hat tip: Viking Blog