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SUPREME COURT OF THE UNITED STATES
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No. 90-1056
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CHARLES W. BURSON, ATTORNEY GENERAL AND
REPORTER FOR TENNESSEE, PETITIONER v.
MARY REBECCA FREEMAN
on writ of certiorari to the supreme court of
tennessee, middle division
[May 26, 1992]

  Justice Stevens, with whom Justice O'Connor and
Justice Souter join, dissenting.
  The speech and conduct prohibited in the campaign-free
zone created by Tenn. Code Ann. 2-7-111 (Supp. 1991) is
classic political expression.  As this Court has long recog-
nized, ``[d]iscussion of public issues and debate on the
qualifications of candidates are integral to the operation of
the system of government established by our Constitution.
The First Amendment affords the broadest protection to
such political expression in order `to assure [the] unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people.'''  Buckley v. Valeo,
424 U. S. 1, 14 (1976) (citation omitted).  Therefore, I fully
agree with the plurality that Tennessee must show that its
```regulation is necessary to serve a compelling state interest
and that it is narrowly drawn to achieve that end.'''  Ante,
at 6 (citations omitted).  I do not agree, however, that
Tennessee has made anything approaching such a showing.

                            I
  Tennessee's statutory ``campaign-free zone'' raises con-
stitutional concerns of the first magnitude.  The statute
directly regulates political expression and thus implicates
a core concern of the First Amendment.  Moreover, it
targets only a specific subject matter (campaign speech) and
a defined class of speakers (campaign workers) and thus
regulates expression based on its content.  In doing so, the
Tennessee statute somewhat perversely disfavors speech
that normally is accorded greater protection than the kinds
of speech that the statute does not regulate.  For these
reasons, Tennessee unquestionably bears the heavy burden
of demonstrating that its silencing of political expression is
necessary and narrowly tailored to serve a compelling state
interest.
  Statutes creating campaign-free zones outside polling
places serve two quite different functions-they protect
orderly access to the polls and they prevent last-minute
campaigning.  There can be no question that the former
constitutes a compelling state interest and that, in light of
our decision in Mills v. Alabama, 384 U. S. 214 (1966), the
latter does not.  Accordingly, a State must demonstrate that
the particular means it has fashioned to ensure orderly
access to the polls do not unnecessarily hinder last-minute
campaigning.
  Campaign-free zones are noteworthy for their broad, anti-
septic sweep.  The Tennessee zone encompasses at least
30,000 square feet around each polling place; in some
States, such as Kentucky and Wisconsin, the radius of the
restricted zone is 500 feet-silencing an area of over
750,000 square feet.  Even under the most sanguine
scenario of participatory democracy, it is difficult to imagine
voter turnout so complete as to require the clearing of
hundreds of thousands of square feet simply to ensure that
the path to the polling-place door remains opens and that
the curtain that protects the secrecy of the ballot box
remains closed.
  The fact that campaign-free zones cover such a large area
in some States unmistakably identifies censorship of
election-day campaigning as an animating force behind
these restrictions.  That some States have no problem
maintaining order with zones of 50 feet or less strongly
suggests that the more expansive prohibitions are not
necessary to maintain access and order.  Indeed, on its face,
Tennessee's statute appears informed by political concerns.
Although the statute initially established a 100-foot zone,
it was later amended to establish a 300-foot zone in 12 of
the State's 95 counties.  As the State Attorney General
observed, ``there is not a rational basis'' for this special
treatment, for there is no ``discernable reason why an
extension of the boundary . . . is necessary in'' those 12
counties.  Brief in Opposition 4a, Tenn. Att'y Gen. Op. No.
87-185.
  Moreover, the Tennessee statute does not merely regu-
late conduct that might inhibit voting; it bars the simple
``display of campaign posters, signs, or other campaign
materials.''  2-7-111(b).  Bumper stickers on parked cars
and lapel buttons on pedestrians are taboo.  The notion that
such sweeping restrictions on speech are necessary to
maintain the freedom to vote and the integrity of the ballot
box borders on the absurd.
  The evidence introduced at trial to demonstrate the
necessity for Tennessee's campaign-free zone was exception-
ally thin.  Although the State's sole witness explained the
need for special restrictions inside the polling place itself,
she offered no justification for a ban on political expression
outside the polling place.  On this record it is far from
surprising that the Tennessee Supreme Court-which
surely is more familiar with the State's electoral practices
and traditions than we are-concluded that the 100-foot
ban outside the polling place was not justified by regulatory
concerns.  This conclusion is bolstered by Tennessee law
which indicates that normal police protection is completely
adequate to maintain order in the area more than 10 feet
from the polling place.
  Perhaps in recognition of the poverty of the record, the
plurality-without briefing, or legislative or judicial
factfinding-looks to history to assess whether Tennessee's
statute is in fact necessary to serve the State's interests.
From its review of the history of electoral reform, the
plurality finds that
    ``all 50 States. . .settled on the same solution:  a secret
    ballot secured in part by a restricted zone around the
    voting compartments.  We find that this wide-spread
    and time-tested consensus demonstrates that some
    restricted zone is necessary in order to serve the States'
    compelling interest in preventing voter intimidation
    and election fraud.''  Ante, at 14-15.
  This analysis is deeply flawed; it confuses history with
necessity, and mistakes the traditional for the indis-
pensable.  The plurality's reasoning combines two logical
errors:  First, the plurality assumes that a practice's long
life itself establishes its necessity; and second, the plurality
assumes that a practice that was once necessary remains
necessary until it is ended.
  With regard to the first, the fact that campaign-free zones
were, as the plurality indicates, introduced as part of a
broader package of electoral reforms does not demonstrate
that such zones were necessary.  The abuses that affected
the electoral system could have been cured by the institu-
tion of the secret ballot and by the heightened regulation of
the polling place alone, without silencing the political
speech outside the polling place.  In my opinion, more
than mere timing is required to infer necessity from
tradition.
  We have never regarded tradition as a proxy for necessity
where necessity must be demonstrated.  To the contrary,
our election-law jurisprudence is rich with examples of
traditions that, though longstanding, were later held to be
unnecessary.  For example, ``[m]ost of the early Colonies
had [poll taxes]; many of the States have had them during
much of their histories . . . .''  Harper v. Virginia Bd. of
Elections, 383 U. S. 663, 684 (1966) (Harlan, J., dissenting).
Similarly, substantial barriers to candidacy, such as
stringent petition requirements, see Williams v. Rhodes,
393 U. S. 23 (1968), property-ownership requirements, see
Turner v. Fouche, 396 U. S. 346 (1970), and onerous filing
fees, see Lubin v. Panish, 415 U. S. 709 (1974), were all
longstanding features of the electoral labyrinth.
  In fact, two of our most noted decisions in this area
involve, as does this case, Tennessee's electoral traditions.
Dunn v. Blumstein, 405 U. S. 330 (1972), which invalidated
Tennessee's 1-year residency requirement, is particularly
instructive.  Tennessee's residency requirement was indis-
putably ``traditional,'' having been in place since 1870.  App.
in Dunn v. Blumstein, O.T. 1971, No. 13, p.22.  As in this
case, the State defended its law on the basis of its interest
in ```secur[ing] the freedom of elections and the purity of the
ballot box.'''  Id., at 23.  Again like this case, Dunn involved
a conflict between two rights-the right to travel and the
right to vote.  The Court applied strict scrutiny, ruling that
residency requirements are ``unconstitutional unless the
State can demonstrate that such laws are `necessary to
promote a compelling governmental interest.'''  405 U. S.,
at 342 (emphasis in original) (citation omitted).  Although
we recognized that ``[p]reservation of the `purity of the
ballot box' is a formidable-sounding state interest,'' id., at
345, we rejected the State's argument that a 1-year require-
ment was necessary to promote that interest.  In doing so,
we did not even mention, let alone find determinative, the
fact that Tennessee's requirement was more than 100 years
old.
  In Baker v. Carr, 369 U. S. 186 (1962), we addressed the
apportionment of Tennessee's legislature.  The State's
apportionment regime had remained unchanged since 1901
and was such that, by the time of trial, ``40% of the voters
elect[ed] 63 of the 99 members of the [state] House'' of
Representatives.  Id., at 253 (Clark, J., concurring).
Although, as Justice Frankfurter observed in dissent,
```very unequal' representation'' had been a feature of the
Nation's political landscape since colonial times, id., at
307-318, the Court was not bound by this long tradition.
Our other cases resemble Dunn and Baker in this way:
Never have we indicated that tradition was synonymous
with necessity.
  Even if we assume that campaign-free zones were once
somehow ``necessary,'' it would not follow that, 100 years
later, those practices remain necessary.  Much in our
political culture, institutions, and practices has changed
since the turn of the century: Our elections are far less
corrupt, far more civil, and far more democratic today than
100 years ago.  These salutary developments have substan-
tially eliminated the need for what is, in my opinion, a
sweeping suppression of core political speech.
  Although the plurality today blithely dispenses with the
need for factual findings to determine the necessity of
``traditional'' restrictions on speech, courts that have made
such findings with regard to other campaign-free zones
have, without exception, found such zones unnecessary.
See, e.g., Florida Comm. for Liability Reform v. McMillan,
682 F. Supp. 1536, 1541-1542 (MD Fla. 1988); Clean-Up '84
v. Heinrich, 582 F. Supp. 125 (MD Fla. 1984), aff'd, 759
F.2d 1511 (CA11 1985).  Likewise, courts that have invali-
dated similar restrictions on so-called ``exit polling'' by the
news media have, after careful factfinding, also declined to
find such prohibitions ``necessary.''  See, e.g., Firestone v.
News-Press Publishing Co., 538 So. 2d 457, 459 (Fla. 1989)
(invalidating Florida's 50-foot zone to the extent that it
reaches outside the polling room and noting that ``[a]t the
evidentiary hearing, no witnesses testified of any distur-
bances having occurred within fifty feet of the polling
room. . . . The state's unsubstantiated concern of potential
disturbance is not sufficient to overcome the chilling effect
on first amendment rights.''); Daily Herald Co. v. Munro,
838 F. 2d 380, 385, n.8 (CA9 1988) (observing with regard
to Washington's 300-foot zone that ```[t]here isn't one iota of
testimony about a single voter that was upset, or intimidat-
ed, or threatened''' (quoting trial transcript)); National
Broadcasting Co. v. Cleland, 697 F. Supp. 1204, 1211-1212
(ND Ga. 1988); CBS Inc. v. Smith, 681 F. Supp. 794, 803
(SD Fla. 1988).  All of these courts, having received evi-
dence on this issue, were far better situated than we are to
assess the contemporary necessity of campaign-free zones.
All of these courts concluded that such suppression of
expression is unnecessary, suggesting that such zones were
something of a social atavism.  To my mind, this recent
history, developed in the context of an adversarial search
for the truth, indicates that, whatever the original historical
basis for campaign-free zones may have been, their contin-
ued ``necessity'' has not been established.  Especially when
we deal with the First Amendment, when the reason for a
restriction disappears, the restriction should as well.
                           II
  In addition to sweeping too broadly in its reach,
Tennessee's campaign-free zone selectively prohibits speech
based on content.  Like the statute the Court found invalid
in First National Bank of Boston v. Bellotti, 435 U. S. 765,
785 (1978), the Tennessee statute regulates ``the subjects
about which persons may speak and the speakers who may
address a public issue.''  Within the zone, 2-7-111 silences
all campaign-related expression, but allows expression on
any other subject: religious, artistic, commercial speech,
even political debate and solicitation concerning issues or
candidates not on the day's ballot.  Indeed, as I read it,
2-7-111 does not prohibit exit polling, which surely
presents at least as great a potential interference with
orderly access to the polls as does the distribution of
campaign leaflets, the display of campaign posters, or the
wearing of campaign buttons.  This discriminatory feature
of the statute severely undercuts the credibility of its
purported law-and-order justification.
  Tennessee's content-based discrimination is particularly
problematic because such a regulation will inevitably favor
certain groups of candidates.  As the testimony in this case
illustrates, several groups of candidates rely heavily on
last-minute campaigning.  See App. 22-23.  Candidates
with fewer resources, candidates for lower visibility offices,
and ``grassroots'' candidates benefit disproportionately from
last-minute campaigning near the polling place.  See Note,
Defoliating the Grassroots: Election Day Restrictions on
Political Speech, 77 Geo. L. J. 2137, 2158-2160 (1989)
(collecting authorities).
  Although the plurality recognizes that the Tennessee
statute is content-based, see ante, at 5-6, it does not inquire
into whether that discrimination itself is related to any pur-
ported state interest.  To the contrary, the plurality makes
the surprising and unsupported claim that the selective
regulation of protected speech is justified because, -[t]he
First Amendment does not require States to regulate for
problems that do not exist.-  Ante, at 16.  Yet earlier this
Term, the Court rejected an asserted state interest because
that interest ``ha[d] nothing to do with the State's'' content-
based distinctions among expressive activities.  Simon &
Schuster, Inc. v. Members of New York Crime Victims Bd.,
502 U. S. ___, ___ (1991) (slip op., at 13); see also Arkansas
Writers' Project, Inc. v. Ragland, 481 U. S. 221, 231 (1987).
Similarly in Carey v. Brown, 447 U. S. 455, 464-465 (1980),
the Court acknowledged Illinois' interest in ``residential
privacy'' but invalidated that State's ban on picketing
because its distinction between labor and non-labor picket-
ing could not be ``justified by reference to the State's
interest in maintaining domestic tranquility.''
  In this case the same is true: Tennessee's differential
treatment of campaign speech furthers no asserted state
interest.  Access to and order around the polls would be
just as threatened by the congregation of citizens concerned
about a local environmental issue not on the ballot as by
the congregation of citizens urging election of their favored
candidate.  Similarly, assuming that disorder immediately
outside the polling place could lead to the commission of
errors or the perpetration of fraud, such disorder could just
as easily be caused by a religious dispute sparked by a
colporteur as by a campaign-related dispute sparked by a
campaign worker.  In short, Tennessee has failed to point
to any legitimate interest that would justify its selective
regulation of campaign-related expression.


                           III
  Although the plurality purports to apply ``exacting
scrutiny,'' its three marked departures from that familiar
standard may have greater significance for the future than
its precise holding about campaign-free zones.  First, the
plurality declines to take a hard look at whether a state law
is in fact ``necessary.''  Under the plurality's analysis, a
State need not demonstrate that contemporary demands
compel its regulation of protected expression; it need only
show that that regulation can be traced to a longstanding
tradition.
  Second, citing Munro v. Socialist Workers Party, 479
U. S. 189 (1986), the plurality lightens the State's burden
of proof in showing that a restriction on speech is ``narrowly
tailored.''  In Munro, we upheld a Washington ballot-access
law and, in doing so, observed that we would not ``requir[e]
a State to make a particularized showing of the existence of
voter confusion, ballot overcrowding, or the presence of
frivolous candidacies prior to the imposition of reasonable
restrictions on ballot access.''  Id., at 194-195.  We stated
that legislatures ``should be permitted to respond to
potential deficiencies in the electoral process with foresight
rather than reactively, provided that the response is
reasonable and does not significantly impinge on constitu-
tionally protected rights.''  Id., at 195-196.  I have substan-
tial doubts about the plurality's extension of Munro's
reasoning to this case, most fundamentally because I
question the plurality's assumption that campaign-free
zones do ``not significantly impinge on constitutionally
protected rights.''  Not only is this the very question before
us, but in light of the sweep of such zones and the vital
First Amendment interests at stake, I do not know how
that assumption can be sound.
  Third, although the plurality recognizes the problematic
character of Tennessee's content-based suppressive regula-
tion, ante, at 5-6, it nonetheless upholds the statute
because ``there is simply no evidence- that commercial or
charitable solicitation outside the polling place poses the
same potential dangers as campaigning outside the polling
place.  Ante, at 16.  This analysis contradicts a core premise
of strict scrutiny-namely, that the heavy burden of
justification is on the State.  The plurality has effectively
shifted the burden of proving the necessity of content
discrimination from the State to the plaintiff.
  In sum, what the plurality early in its opinion calls
``exacting scrutiny,'' ante, at 6, appears by the end of its
analysis to be neither exacting nor scrutiny.  To borrow a
mixed metaphor, the plurality's scrutiny is -toothless.-
Mathews v. Lucas, 427 U. S. 495, 510 (1976).

                           IV
  Ours is a Nation rich with traditions.  Those traditions
sometimes support, and sometimes are superseded by,
constitutional rules.  By tradition, for example, presidential
campaigns end on election eve; yet Congress certainly could
not enforce that tradition by enacting a law proscribing
campaigning on election day.  At one time as well, bans on
election-day editorial endorsements were traditional in
some States, but Mills v. Alabama, 384 U. S. 214 (1966),
established that such bans are incompatible with the First
Amendment.
  In Mills, we set aside the conviction of a newspaper editor
who violated such a ban.  In doing so, we declined to accept
the State's analogy between the electoral process and the
judicial process, and its claim that the State could, on
election day, insulate voters from political sentiments and
ideas much the same way as a jury is sequestered.  We
squarely rejected the State's claim that its ban was justified
by the need to protect the public ```from confusive last-
minute charges and countercharges and the distribution of
propaganda in an effort to influence voters on an election
day.'''  Id., at 219 (quoting State v. Mills, 278 Ala. 188,
195-196, 176 So. 2d 884, 890 (1965)).  To the contrary, we
recognized that it is precisely on election day that advocacy
and campaigning ``can be most effective.''  Mills, 384 U. S.,
at 219.  Mills stands for the simple proposition that,
tradition notwithstanding, the State does not have a
legitimate interest in insulating voters from election-day
campaigning.  Thus, in light of Mills, the fact that cam-
paign-free zones are ``traditional'' tends to undermine,
rather than to support, the validity of the Tennessee
statute.  In short, we should scrutinize the Tennessee
statute for what it is-a police power regulation that also
silences a substantial amount of protected political expres-
sion.
  In my opinion, the presence of campaign workers outside
a polling place is, in most situations, a minor nuisance.  But
we have long recognized that ```the fact that society may
find speech offensive is not a sufficient reason for suppress-
ing it.'''  Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55
(1988) (citation omitted).  Although we often pay homage to
the electoral process, we must be careful not to confuse
sanctity with silence.  The hubbub of campaign workers
outside a polling place may be a nuisance, but it is also the
sound of a vibrant democracy.
  In silencing that sound, Tennessee ``trenches upon an
area in which the importance of First Amendment protec-
tions is `at its zenith,''' Meyer v. Grant, 486 U. S. 414, 425
(1988) (citation omitted).  For that reason, Tennessee must
shoulder the burden of demonstrating that its restrictions
on political speech are no broader than necessary to protect
orderly access to the polls.  It has not done so.
  I therefore respectfully dissent.