On Tuesday morning I got into a fight with a rubber cone that said “No Electioneering Beyond this Point!”
Under Illinois law, cones of this nature must be stationed 100 feet from the entrance to a polling place, establishing a “campaign free zone.”
My apartment building in Chicago’s Streeterville neighborhood is a polling place, and on Tuesday the cones were placed inside the building, on the third floor, about 15 feet from the voting booths. And there was a guy right by the entrance to the building holding a campaign sign, wearing a shirt with a candidate’s name, telling me for whom I should vote.
All of this created a dilemma. As a former First Amendment lawyer, I detest the idea that any public space should be “campaign free zone.” The literal cones required by Illinois statute demarcate a metaphorical cone of silence, in which political speech is forbidden.
In my view, no public street should be a cone of silence. As the Supreme Court Justice Owen Roberts wrote in 1939, “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”
Still, the guy outside my building, whether he knew it or not, was violating Illinois law. Because the cones were in the wrong place, he was in the wrong place, too. While it is unfortunate that the Illinois cone law is on the books, it did not seem right that one candidate should gain an advantage over candidates who obeyed the law.
The only thing worse than silencing political speech is silencing some candidates while giving an advantage to others who are allowed to speak. Consider Putin’s Russia, where only the dominant party gets to talk.
Long story short, I went to the polling room and kvetched about the cones. The folks there, who had made an honest mistake, said they would look into it. Then I hit the treadmill. When I walked out, the cones were in the right place, and the guy outside the building was gone.
Justice, sort of.
David M. Shapiro is a clinical assistant professor of law and staff attorney at the Roderick and Solange MacArthur Justice Center, Northwestern University School of Law.