Lichtenstein v. Hargett, No. 22-5028 (6th Cir. 2023)
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Since 1979, Tennessee has made it a crime for anyone other than election officials to distribute the state’s official form for applying to vote absentee. During much of this time, Tennessee kept close guard of this form to deter fraud. Election officials now make the form widely available online so that eligible voters may easily apply. According to the Plaintiffs, this change has rendered the ban on distributing the application form “outdated.” They want to distribute the form while encouraging absentee voting at their get-out-the-vote drives. They allege that the First Amendment gives them the right to do so and that, because they seek to distribute the form while expressing a political message, the ban is subject to strict scrutiny.
The Sixth Circuit affirmed the dismissal of the suit. Tennessee’s ban prohibits an act--distributing a government form--that qualifies as conduct, not speech. While the First Amendment provides some protection to “expressive conduct,” strict scrutiny does not apply to Tennessee’s ban because it neutrally applies no matter the message that a person seeks to convey and because it burdens nobody’s ability to engage in actual speech. At most, the Supreme Court’s lenient First Amendment test for neutral laws that regulate conduct applies and the ban survives that nondemanding test,
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