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90-1056.ZS
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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BURSON, ATTORNEY GENERAL AND REPORTER
FOR TENNESSEE v. FREEMAN
certiorari to the supreme court of tennessee
No. 90-1056. Argued October 8, 1991-Decided May 26, 1992
Respondent Freeman, while the treasurer for a political campaign in
Tennessee, filed an action in the Chancery Court, alleging, among
other things, that 2-7-111(b) of the Tennessee Code-which prohib-
its the solicitation of votes and the display or distribution of cam-
paign materials within 100 feet of the entrance to a polling
place-limited her ability to communicate with voters in violation of,
inter alia, the First and Fourteenth Amendments. The court dis-
missed her suit, but the State Supreme Court reversed, ruling that
the State had a compelling interest in banning such activities within
the polling place itself but not on the premises around the polling
place. Thus, it concluded, the 100-foot limit was not narrowly tailored
to protect, and was not the least restrictive means to serve, the
State's interests.
Held:The judgment is reversed, and the case is remanded.
802 S.W. 2d 210, reversed and remanded.
Justice Blackmun, joined by The Chief Justice, Justice White,
and Justice Kennedy, concluded that 2-7-111(b) does not violate
the First and Fourteenth Amendments. Pp.4-20.
(a)The section is a facially content-based restriction on political
speech in a public forum and, thus, must be subjected to exacting
scrutiny: The State must show that the regulation is necessary to
serve a compelling state interest and that it is narrowly drawn to
achieve that end. This case presents a particularly difficult reconcili-
ation, since it involves a conflict between the exercise of the right to
engage in political discourse and the fundamental right to vote, which
is at the heart of this country's democracy. Pp.4-7.
(b)Section 2-7-111(b) advances Tennessee's compelling interests
in preventing voter intimidation and election fraud. There is a
substantial and long-lived consensus among the 50 States that some
restricted zone around polling places is necessary to serve the inter-
est in protecting the right to vote freely and effectively. The real
question then is how large a restricted zone is permissible or suffi-
ciently tailored. A State is not required to prove empirically that an
election regulation is perfectly tailored to secure such a compelling
interest. Rather, legislatures should be permitted to respond to
potential deficiencies in the electoral process with foresight, provided
that the response is reasonable and does not significantly impinge on
constitutionally protected rights. Munro v. Socialist Workers Party,
479 U.S. 189, 195-196. Section 2-7-111(b)'s minor geographical
limitation does not constitute such a significant impingement. While
it is possible that at some measurable distance from the polls govern-
mental regulation of vote solicitation could effectively become an
impermissible burden on the First Amendment, Tennessee, in estab-
lishing its 100-foot boundary, is on the constitutional side of the line.
Pp.7-20.
Justice Scalia concluded that 2-7-111 is constitutional because
it is a reasonable, viewpoint-neutral regulation of a nonpublic forum.
The environs of a polling place, including adjacent streets and
sidewalks, have traditionally not been devoted to assembly and
debate and therefore do not constitute a traditional public forum. Cf.
Greer v. Spock, 424 U.S. 828. Thus, speech restrictions such as
those in 2-7-111 need not be subjected to ``exacting scrutiny''
analysis. Pp.1-4.
Blackmun, J., announced the judgment of the Court and delivered
an opinion, in which, Rehnquist, C. J., and White and Kennedy, JJ.,
joined. Kennedy, J., filed a concurring opinion. Scalia, J., filed an
opinion concurring in the judgment. Stevens, J., filed a dissenting
opinion, in which O'Connor and Souter, JJ., joined. Thomas, J., took
no part in the consideration or decision of the case.