Burson v. Freeman

Summary

The Supreme Court held that Tenn. Code Ann. § 2-7-111(b), which prohibits soliciting votes and displaying or distributing campaign materials within 100 feet of a polling place entrance, does not violate the First and Fourteenth Amendments. Although the statute is a facially content-based restriction on political speech in a quintessential public forum and therefore receives strict ('exacting') scrutiny, it survives because a restricted zone around polling places is necessary — as shown by a long, widespread, and time-tested consensus rooted in the historic battle against voter intimidation and election fraud — to protect the compelling state interests in free voting and electoral integrity, and the 100-foot boundary is sufficiently tailored, a smaller radius being a difference of degree rather than a less restrictive alternative. The Court reversed the Tennessee Supreme Court, which had invalidated the 100-foot zone, and remanded. Justice Scalia concurred in the judgment on the ground that polling-place environs are not traditional public forums; Justice Kennedy concurred to explain his narrower view of content-based restrictions; and Justice Stevens, joined by Justice O'Connor and Justice Souter, dissented, contending that the plurality mistook historical tradition for contemporary necessity and applied 'toothless' scrutiny.