ELECTION PROJECTIONS: FIRST AMENDMENT ISSUES
CRS Report for Congress
Received through the CRS Web
Election Projections: First Amendment Issues
Henry Cohen
Legislative Attorney
American Law Division
Summary
Media projections may be based both on exit polls and on information acquired as
to actual ballot counts. The First Amendment would generally preclude Congress from
prohibiting the media from interviewing voters after they exit the polls. It apparently
would also preclude Congress from prohibiting the media from reporting the results of
those polls. Congress, could, however, ban voter solicitation within a certain distance
from a polling place, and might be able to include exit polling within such a ban. It also
might be able to deny media access to ballot counts, either when the polls have not
closed in the jurisdiction whose votes are being counted, or when the polls have not
closed across the nation.
When the media project the winner of an election before the polls close, some people
who otherwise had planned to vote might decide not to vote. If enough such people
would have voted against the projected winner, then their decision not to vote could affect
the result in the election. Media projections, then, might indirectly affect the outcome of
an election, and some have suggested that Congress therefore ban them.
Media projections may be based both on exit polls and on information acquired as to
actual ballot counts completed up to the time of the projections. The First Amendment
would preclude Congress from prohibiting the media from interviewing voters after they
exit the polls. At most, Congress might be able to include exit polling within a more
general prohibition on voter solicitation within a certain distance from a polling place. We
consider this point in Section II of this report.
The First Amendment apparently would also preclude Congress from prohibiting the
media from reporting the results of exit polls. Congress, therefore, apparently could not
ban media projections outright. Could Congress, however, deny media access to ballot
counts, either when the polls have not closed in the jurisdiction whose votes are being
counted, or when the polls have not closed across the nation? Could it, in other words,
prohibit governmental officials who are counting votes from releasing election results? We
consider that question in Section III of this report.
Congressional Research Service The Library of Congress
I. Banning Media Projections
Media projections are speech, and the First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech, or of the press.” It is possible,
however, though by no means certain, that Congress could limit the right of broadcast
radio and television stations to report election result projections. This is because the
Supreme Court, citing “spectrum scarcity,” i.e., the limited number of available broadcast
frequencies, has “permitted more intrusive regulation of broadcast speakers than of
speakers in other media.” Turner Broadcasting System v. Federal Communications
Commission, 512 U.S. 622, 637 (1994). But to restrict broadcast radio and television, but
not cable television and the Internet, would seem to go only a small way toward banning
media election projections.
A statute that restricted speech of media other than broadcast radio and television,
if challenged, would be subject to “strict scrutiny” by the courts. This means that the
courts would uphold it only if the government proves that it is necessary “to promote a
compelling interest” and is “the least restrictive means to further the articulated interest.”
Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).
Would there be a “compelling interest” in prohibiting media projections? Though
there might be a compelling interest in preventing the media from interfering with elections
so as potentially to affect the outcome, it seems questionable whether election projections,
if they are understood by potential voters to be merely projections, could be said to
interfere with elections. Voters who hear or read such projections presumably know that
they are only projections, and that their votes could still make a difference in the election.
If they decide that that difference is not significant enough to make it worth their while to
vote, then they have made a free choice. The Supreme Court has written in another
context: “The First Amendment directs us to be especially skeptical of regulations that
seek to keep people in the dark for what the government perceives to be their own good.”
If there is concern that some potential voters might be misled by projections to think
that the winner of an election has been determined, then Congress might be able to require
that disclosures accompany projections. Although the First Amendment protects the right
not to speak as well as the right to speak, the courts might view compelled disclosures in
this case as serving a compelling interest in protecting the right to vote.
In the seemingly unlikely event that a court were to find a compelling interest in
prohibiting media election result projections, then the government would still have to show
that there was no less restrictive means to further that interest. Making this determination
would entail consideration of other proposals to deal with the perceived problem.
II. Banning Exit Polling Within a Prescribed Distance from the
Polls
The purpose of legislation banning exit polling within a prescribed distance from the
polls would be to make exit polling more difficult. In Burson v. Freeman, 504 U.S. 191
(1992), the Supreme Court upheld a Tennessee statute that prohibited the solicitation of
votes and the display or distribution of campaign materials within 100 feet of the entrance
to a polling place. The Court recognized that this statute both restricted political speech,
to which the First Amendment “has its fullest and most urgent application,” and “bar[red]
speech in quintessential public forums,” the use of which for assembly and debate “has,
from ancient times, been a part of the privileges, immunities, rights, and liberties of
citizens.” Id. at 196, 197. Further, the statute restricted speech on the basis of its content,
as it restricted political but not commercial solicitation, and therefore was not “a facially
content-neutral time, place, or manner restriction.” Id. at 197.
The Court therefore subjected the Tennessee statute to strict scrutiny, which means
that it required the state to show that the regulation serves a compelling state interest and
“is necessary to serve the asserted interest.” Id. at 199. Although applying strict scrutiny
usually results in a statute’s being struck down, in this case the Court concluded “that a
State has a compelling interest in protecting voters from confusion and undue influence,”
and “in preserving the integrity of its election process.” Id. Or, more simply, in preventing
“two evils: voter intimidation and election fraud.” Id. at 206. The next question, then,
was whether a 100-foot restricted zone is necessary to serve this compelling interest. The
Court, noting that “all 50 States limit access to the areas in or around polling places,” said
that, though it would not specify a precise maximum number of feet permitted by the First
Amendment, 100 feet “is on the constitutional side of the line.” Id. at 206, 211.
In Daily Herald Co. v. Munro, 838 F.2d 380 (9th Cir. 1988), decided prior to Burson,
the Ninth Circuit struck down a Washington statute that prohibited exit polling within 300
feet of a polling place. The court granted that “[s]tates have an interest in maintaining
peace, order, and decorum at the polls and ‘preserving the integrity of their electoral
processes.’” Id. at 385. But the court found that “the statute is not narrowly tailored to
advance that interest,” because it prohibits nondisruptive as well as disruptive exit polling.
Id. “Moreover, the statute is not the least restrictive means of advancing the state’s
interest. The statute is unnecessarily restrictive because [another Washington statute]
already prohibits disruptive conduct at the polls,” and “that several other less restrictive
means of advancing this interest exist: for example, reducing the size of the restricted area;
requiring the media to explain that the exit poll is completely voluntary; requiring polling
places to have separate entrances and exits, . . . or prohibiting everyone except election
officials and voters from entering the polling room.” Id.
This reasoning of the Ninth Circuit may no longer stand after the Supreme Court’s
decision in Burson. As for the statute’s being unnecessary because another statute already
prohibited disruptive conduct, the Court in Burson found that “[i]ntimidation and
interference laws [i.e., laws that prohibit only disruptive conduct] fall short of serving a
State’s compelling interests because they ‘deal with only the most blatant and specific
attempts’ to impede elections.” 504 U.S. at 206-207. As for there being a less restrictive
means to preserve the integrity of the electoral process, the Court in Burson did not
require the state to provide “factual finding to determine the necessity of [its] restrictions
on speech.” 504 U.S. at 222 (Stevens, J., dissenting). Rather, it found that “the link
between ballot secrecy and some restricted zone surrounding the voting area . . . is
common sense.” Id. at 207.
But the plaintiffs in Munro also “argue[d] that the statute is unconstitutional for
another reason: that the stated purpose for the statute of protecting order at the polls was
a pretext, and that the state’s true motive was to prevent the media from broadcasting
election results before the polls closed.” Id. at 386. The court found “that, assuming that
at least one purpose of the statute was to prevent broadcasting early returns, the statute
is unconstitutional because this purpose is impermissible . . . . [A] general interest in
insulating voters from outside influences is insufficient to justify speech regulation.” Id.
at 387. “In addition,” the court said, even if this were a permissible purpose, “the statute
is not narrowly tailored to protect voters from the broadcasting of early returns. Election-
day broadcasting is only one use to which the media plaintiffs put the information gathered
from exit polling . . .” Id. at 387-388. The information is also used to analyze the results
of elections, and prohibiting exit polling prohibits speech involving such other uses of the
information.
Reading Munro together with Burson suggests that Congress could prohibit the
solicitation of votes and the display or distribution of campaign materials within 100 feet
(or some other reasonable distance) of the entrance to a polling place, but could not
prohibit exit polling for the purpose of preventing voters from receiving media projections.
Any limit on exit polling would seem permissible only to the extent it could be justified as
part of a general restriction on interfering with voters before they vote. In Burson, the
Court found that the Tennessee statute’s restriction could be limited to voter solicitation,
and need “not restrict other types of speech, such as charitable and commercial solicitation
or exit polling, within the 100-foot zone.” 504 U.S. at 207. But the Court did not say that
a statute could not also restrict other types of speech, if it could demonstrate that doing
so was necessary to serve a compelling governmental interest.
A post-Burson court of appeals case found greater justification for restricting
campaigning than for restricting exit polling, because, “[w]hile there is no evidence of
widespread voter harassment or intimidation by exit-pollers, there is evidence that poll
workers do create these problems.” Schirmer v. Edwards, 2 F.3d 117, 122 (5th Cir. 1993),
cert. denied, 511 U.S. 1017 (1994). The court distinguished Munro on this basis, and
upheld a 600-foot campaign-free zone.
III. Banning Media Access to Ballot Counts
If Congress could not ban media projections outright, could it prohibit government
officials from releasing ballot counts to the media? Could Congress, that is, deny media
access to ballot counts, either when the polls have not closed in the jurisdiction whose
votes are being counted, or when the polls have not closed across the nation? The purpose
of restricting access in the latter case would be to prevent potential voters in states in
western time zones from being influenced by learning the results in states in eastern time
zones.
The First Amendment, the Supreme Court has written,
goes beyond protection of the press and the self-expression of
individuals to prohibit government from limiting the stock of
information from which members of the public may draw.” Free
speech carries with it some freedom to listen. “In a variety of
contexts this Court has referred to a First Amendment right to
‘receive information and ideas.’”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-576 (1980). Nevertheless,
although “news gathering is not without its First Amendment protections”(Branzburg v.
Hayes, 408 U.S. 665, 707 (1972)), these protections are not generally as great as are
protections from censorship. The Court has held that the First Amendment does not
prevent prison officials from prohibiting “face-to-face interviews between press
representatives and individual inmates.” Pell v. Procunier, 417 U.S. 817, 819 (1974).
In so holding, the Court did not find it necessary for the government to establish a
compelling need to justify the prohibition, as the government in the ordinary case must to
justify statutes that censor speech. Rather, the Court “balance[d] First Amendment rights”
against governmental interests such as “the legitimate penological objectives of the
corrections system” and “internal security within the corrections facilities,” taking into
account available alternative means of communication. Id. at 824, 822, 823. Furthermore,
the Court wrote, although the First Amendment bars the “government from interfering in
any way with a free press,” it does not “require government to accord the press special
access to information not shared by members of the public generally.” Id. at 834, 833.
If Congress enacted a statute prohibiting the release of ballot counts, and it were
challenged as unconstitutional, the court presumably would apply the sort of balancing test
it used in Pell v. Procunier to reach a decision. It would assess the importance of denying
media access to ballot counts, perhaps considering whether media projections, or learning
the results in other states, tend to mislead potential voters, or whether potential voters are
merely making free choices about the importance of their vote in light of status of the
election at the time they hear a media projection or the result in another state.
A court might also evaluate the efficacy of prohibiting the release of ballot counts,
considering, for example, whether, if denied access to ballot counts, the media might
nevertheless make projections based merely on exit polls, which might be more misleading
than those based on ballot counts. Finally, a court might consider whether Congress could
accomplish its goal by alternative means that would restrict speech less. An example might
be to require that projections be accompanied by disclosure of the information on which
the projection is based.
IV. Concluding Note
Whether or not there is a First Amendment barrier to banning exit polling within a
prescribed distance from the polls, or to prohibiting the release of ballot counts, there is
still the question of Congress’s power to regulate in this area. Congress has clear power
to regulate House and Senate elections, but less clear power to regulate presidential
elections, aspects of which the Constitution vests in the states. For additional information
on this subject, see CRS Report RL30747, Congressional Authority to Standardize
National Election Procedures, by Kenneth R. Thomas.