Ninth Circuit Makes Final its Ruling that Vote-Swapping Websites Are Entitled to First Amendment Protection
New York — The Ninth Circuit has confirmed an important First Amendment victory for operators and users of political websites, denying California's petition for rehearing en banc in Porter v. Bowen. Today's order leaves standing an August 2007 ruling by a three-judge panel that the First Amendment protects so-called "vote-swapping" websites from threats of criminal prosecution by government officials.
"This is a huge step forward for protecting freedom of speech on the Internet," said Lisa Danetz, Senior Counsel of the Democracy Program at Demos, who represented plaintiffs along with the ACLU of Southern California. "The court's decision preserves the vital role of the Internet as a low-cost means of political communication and a vibrant forum for debate about the presidential election."
The dispute goes back to the 2000 presidential election, when the vote-swapping websites — dubbed "Nader-Trader" sites by some — sprang up in the last few weeks of the election, as the polls tightened and the impact of third-party voters in closely contested "swing" states became a prominent part of the public debate. The sites, which represented one of the first broad-scale uses of the Internet for political association in a presidential campaign, provided information about the Electoral College and the competitiveness of the major-party races around the country. They also offered a forum in which third-party supporters in swing states could strategize with major-party voters in "safe" states about agreeing to "swap" their votes to avoid handing the election to their least-preferred candidate. The sites were used in particular by many voters who were concerned that a vote for Nader would swing the election to George Bush in a particular state.
Bill Jones, then California's Secretary of State, sent letters to some of the website operators threatening them with criminal prosecution for facilitating what he termed "vote-buying" — even though no money or other economic benefit ever changed hands, and the website users were solely engaged in strategizing to reach their political goals. These operators, and others who learned of the letter, promptly disabled their websites out of fear of prosecution, and thousands of voters were denied the opportunity to make contact with like-minded citizens around the country as a result.
The Ninth Circuit's panel ruling in August declared that the activities that Secretary Jones attempted to squelch "are at the heart of the liberty safeguarded by the First Amendment" and cannot be prosecuted under vote-buying statutes. Today's order denying the State's request for en banc review means the decision will remain an important precedent protecting the right of website operators and voters to maintain and use such sites in future presidential elections. Together with the ACLU of Southern California, Demos represented operators of two of the affected websites, as well as two voters who were prevented from using the websites after the shutdown.