Justin Timberlake just wanted to get out the vote. On Monday, Timberlake voted in Memphis and shared a photo of his ballot on Instagram, encouraging his followers to “#rockthevote”—“Choose to have a voice!” he implored.* But several outlets quickly noted that Timberlake had clearly violated a Tennessee law prohibiting so-called ballot selfies, thereby risking up to 30 days in jail. The district attorney’s office initially said that Timberlake’s actions were under review, but it later clarified that it would not use its “limited resources” to investigate his criminal conduct.
This entire incident is extraordinarily unfortunate, because it likely gives the impression to Timberlake’s many followers that banning ballot selfies (and punishing those who share them) is a valid exercise of state power. It isn’t. Every court to consider the constitutionality of ballot selfie bans—four so far—has concluded that they constitute a suppression of free speech in violation of the First Amendment. As the U.S. Court of Appeals for the 1st Circuit ruled in late September, these “restrictions on speech” are “antithetical to democratic values,” censoring political expression under the tenuous rationale of preventing voter coercion—“an unsubstantiated and hypothetical danger.” And on the same day that Timberlake snapped his now-infamous photo, a federal judge in Michigan suspended the state’s ballot selfie ban, concluding that the law substantially burdened political speech without any adequate justification.
Civil liberties groups know a winning cause when they see one, and the American Civil Liberties Union is eager to invalidate the ballot selfie bans that remain in about two dozen states. Millennials snap and share ballot selfies en masse, using them to express their enthusiasm about voting and encouraging their friends to exercise the franchise. That’s why it’s such a shame that the DA decided not to prosecute Timberlake. Had it pursued charges, Timberlake—with the ACLU’s help—could have valiantly battled Tennessee’s attempt to censor his political expression. His legal crusade would have surely captured the nation’s attention and sent a powerful message to his many young followers that in America, we don’t let the state silence our free speech rights without a fight.
But instead, Timberlake simply removed the Instagram photo, meekly allowing Tennessee to chill his constitutionally protected expression. What a shame. The First Amendment needs defenders, now more than ever. If Justin Timberlake won’t stand up for free speech, who will?
*Correction, October 26, 2016: This post originally stated that Timberlake voted in Nashville.