Temporal Buffer Zones: The Constitutional Case for Regulating Political Speech Immediately Prior to Elections

Abstract

The First Amendment forbids most limits on political speech, but it permits buffer zones around polling stations on Election Day. This exception to the deregulatory thrust of election speech doctrine is strikingly under-theorized. In what follows, we excavate the values that underpin the buffer zone exception—voter confusion and electoral integrity—and we argue that, properly understood, the same values would justify the use of temporal buffer zones: stricter-than-normal regulations on certain types of political speech in the immediate vicinity of an election. Voting, we suggest, is an act different in kind from the deliberation that precedes it. Accordingly, governmental efforts to ensure the sanctity of voting can satisfy exacting First Amendment scrutiny in manner that similar efforts to quell or influence expression throughout the campaign process cannot. For all the case law (and scholarship) arguing that campaigning should be insulated from legal control, there is an under-appreciated interest in subjecting voting—as distinct from campaigning—to legal controls that help to guarantee its solemnity. Physical buffer zones are paradigmatic. Temporal buffer zones are a natural extension.

Keywords: First Amendment, voter confusion, electoral integrity, political speech, buffer zones, election law