FIRE to Supreme Court: Tell New Jersey criticism doesn’t require consent

Imagine having to obtain approval from a person you want to criticize before opening your mouth. 

What if you had to receive written permission from a restaurant owner before you could post a negative Yelp review? 

The result would be an echo chamber of gushing five-star reviews. Consumers would never learn of the burned meals or rude servers.

New Jersey does something similar with a law concerning primary ballot slogans, and the results are what you would expect. 

New Jersey allows primary candidates running for any political office to speak directly to voters — at the critical moment when they cast their ballots — by including a slogan of their choice next to their name on the ballot. This provides a candidate with an opportunity to make a powerful final impression on voters, and these last-minute messages can be crucial in the often crowded primary fields. 

But the state requires written consent from any person or New Jersey-incorporated association mentioned in the candidate’s slogan. 

Slogans conveying negative statements about candidates or corporations are screened out, and voters miss out on some of a candidate’s most persuasive and powerful ballot messages. 

That means if a Republican candidate wants to call themself a “Never-Trump Conservative,” they must get consent from former President Trump — a very unlikely proposition. Without proof of consent, the state won’t allow the candidate to use the slogan. 

The result is that slogans conveying negative statements about candidates or corporations are screened out, and voters miss out on some of a candidate’s most persuasive and powerful ballot messages. 

This outcome is not merely hypothetical: One New Jersey candidate wanted to express her disappointment with Sen. Bernie Sanders with the message “Bernie Sanders Betrayed the NJ Revolution.” This concise message would have conveyed to primary voters both that the candidate was progressive and that she was disappointed with Sanders. But it was rejected because she had not obtained Sanders’ consent.

The candidate who was unable to use the Sanders slogan, as well as another individual whose proposed slogans were also rejected when he ran for Congress, sued in 2020. The lawsuit, Mazo v. N.J. Sec. of State, argued that New Jersey’s law violates the First Amendment because it discriminates on the basis of a slogan’s content and viewpoint. 

FIRE agrees. New Jersey’s law is content-based because it imposes burdens on speech about a politician without imposing similar limits on speech about a ballot measure or any other type of content. 

The law is viewpoint-based in four distinct ways: 

1. It disproportionately excludes speech that is critical of a person or New Jersey association; 
2. It discriminates against speakers based on their political affiliations and political access; 
3. It grants a preemptive heckler’s veto to those that are the subject of critical speech; and
4. It grants arbitrary discretion to state officials to allow or exclude speech based on whether they agree with a candidate’s viewpoint.

But the United States Court of Appeals for the Third Circuit found in November that New Jersey’s law was not content- or viewpoint-based, upholding it after applying a deferential test meant for laws that regulate the electoral process (where First Amendment rights are diminished in light of the government’s interest in regulating an election). 

Last month, FIRE filed an amicus brief urging the Supreme Court to take this case and clarify the standard for determining whether a law is considered content- or viewpoint-based.

FIRE’s brief argues that the Third Circuit’s decision is a warning signal to the Supreme Court that its recent decision in City of Austin v. Reagan National Advertising of Austin, LLC is being misapplied to uphold laws that blatantly discriminate based on content. 

FIRE urges the Supreme Court to review the Third Circuit’s decision. People running for office shouldn’t need consent from Donald Trump, Bernie Sanders, or anyone else before criticizing them.