Over at the Acton Institute blog, Joe Carter published a post yesterday based on arguments before the Supreme Court which took place earlier this week. As Carter explains, the case before the Court involved the wearing of allegedly politicized clothing at a polling place:
The case of Minnesota Voters Alliance v. Mansky concerns a Minnesota statute that broadly bans all political apparel at the polling place. When Andrew Cilek went to vote in 2010, he wore a shirt bearing the image of the “Don’t Tread on Me” flag and a button that read “Please I.D. Me.” The poll worker asked him to remove the shirt and button because it supposedly violated the state law.
Cilek filed a lawsuit opposing the regulation as an infringement on his First Amendment right to political expression. He also noted that the standard for what is acceptable is arbitrary and the enforcement itself could be politicized since the polling workers are chosen by local political parties.
Justice Alito decided to highlight just how arbitrary the standard was during oral arguments by asking attorney Daniel Rogan, who was defending the statute for the state of Minnesota, to classify whether a series of other images would be allowable or forbidden under the law. You’ll quickly notice a pattern forming. Every progressive political symbol is deemed allowable while every conservative symbol is deemed forbidden:
JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?
MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.
JUSTICE ALITO: How about a shirt that says “Parkland Strong”?
MR. ROGAN: No, that would — that would be — that would be allowed. I think - I think, Your Honor -
JUSTICE ALITO: Even though gun control would very likely be an issue?
MR. ROGAN: To the extent -
JUSTICE ALITO: I bet some candidate would raise an issue about gun control.
MR. ROGAN: Your Honor, the — the - the line that we’re drawing is one that is - is related to electoral choices in a -
JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?
MR. ROGAN: The — the Parkland?
JUSTICE ALITO: Yeah.
MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -
JUSTICE ALITO: Okay. How about an NRA shirt?
MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -
JUSTICE ALITO: How about a shirt with the text of the Second Amendment?
MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be -
JUSTICE ALITO: How about the First Amendment?
MR. ROGAN: No, Your Honor, I don’t - I don’t think the First Amendment. And, Your Honor, I -
CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?
MR. ROGAN: It would be allowed.
CHIEF JUSTICE ROBERTS: It would be?
MR. ROGAN: It would be. And — and I think the — I understand the — the idea, and I’ve — I’ve — there are obviously a lot of examples that — that have been bandied about here –
JUSTICE ALITO: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?
MR. ROGAN: No, Your Honor, I don’t think that that would be under — under our statute. And I think -
JUSTICE ALITO: How about “All Lives Matter”?
MR. ROGAN: That could be, Your Honor, that could be — that could be perceived as political. And I — I think obviously, Your Honor, there — there are some hard calls and
there are always going to be hard calls. And that — that doesn’t mean that the line that we’ve drawn is — is unconstitutional or even unreasonable.
JUSTICE ALITO: How about an “I Miss Bill” shirt?
MR. ROGAN: I’m sorry, Your Honor? I didn’t –
JUSTICE ALITO: “I Miss Bill,” or to make it bipartisan, a “Reagan/Bush ’84” shirt?
MR. ROGAN: Yes, Your Honor, I believe that that’s political.
So to sum all of this up, the rainbow flag, “Parkland strong,” a Colin Kaepernick jersey, and the text of the First Amendment are all non-political and therefore could be worn at a polling place under this law. Meanwhile, an NRA shirt, “All Lives Matter,” and the text of the Second Amendment would be forbidden as being too partisan.
The standard of what constitutes political commentary offered by Daniel Rogan is so slanted here you have to wonder if he has a side gig at CNN. Only the references to presidents who left office years ago seem to be treated in a truly bipartisan way.
Rogan, with a little help from Justice Alito, has just demonstrated that what is judged partisan often means in practice ‘anything conservatives might say.’ Meanwhile, equally partisan slogans and images from the left get a pass as just part of the culture. It’s this double-standard—the unexamined assumptions about what is and is not partisan— that helps the left leverage its cultural power over conservatives.