Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Judiciary committee, and we are honored to have not president anymore, I got to be the senior professor, Rodney Smola, expert in personal law and other constitutional law, to weigh in on our bill h five forty one related to intimidation of voters. And I will turn it over to you

[Rep. Angela Arsenault (Member)]: if you can identify anything. Sure.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: So I I I got the current draft from you, and I do have one very small suggestion. I should I should say this is dear to my heart because I was one of the major lawyers for Dominion voting against Fox News. I don't know if you know that. I argued the case for dominion in the Delaware courts, on the First Amendment issues. And they've since been sold, but, of course, Vermont used dominion machines. And, in the aftermath of the attacks on the result of the 2,020, election, many of those employees, you know, felt their lives threatened. And since that company deals with election officials all over the country, they felt that pressure too. They felt the the threats to those folks. So I'll just be very quick and tell you my one small suggestion, and then I'm at your disposal to answer any questions that you have. I wrote out, mister chairman, my suggestion, so I'll pass it to

[Rep. Martin LaLonde (Chair)]: you so you'll have it

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: in writing when after after I've talked. As the as it is currently drafted, when you skip down to the the the new section and the first sentence reads, no person shall intimidate, I suggest you add two words. A no person shall intentionally or recklessly intimidate. And I'll I'll pass this up to you. Why do I make that suggestion? Because in 2,023, the US Supreme Court decided a case called Counterman versus Colorado. Again, I'll pass this up so you'll have it. Right. Yep. And in that case, the Supreme Court addressed a split among lower courts. And the split was what is the First Amendment fault standard in a threat case? Because threats are almost always verbal in some kind. That's how people threaten people. You intimidate by talking. And lower courts were split on whether there has to be an intent to threaten, which is the standard in some First Amendment areas, or whether it's just essentially a negligent standard, an objective standard. Would an ordinary reasonable person feel threatened? And the court adopted for adopted a middle position of recklessness. You'd have to at least wreck be reckless in the in the risk that a person would perceive it as threatening. And so my advice is why not put that right in the terms of the statute because you'll have judges and prosecutors and maybe defense lawyers who won't be up on First Amendment law. And unless that standard is given to the jury, intentional or reckless, the conviction could be overturned. So why not let it make it easy on them and say, that's the First Amendment standard and just put that in the terms of the statute? So that's my suggestion. And I suggested, say, intentionally or recklessly. All the First Amendment requires is reckless. But it's in the alternative. It can be either And so that's my simple suggestion. Other than that, to me, I see zero constitutional problems with the draft that I have in the department.

[Rep. Martin LaLonde (Chair)]: So when a court interprets this, will they immediately go to the true threat doctrine after they've looked at intentionally or recklessly or not?

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: You you would well, a a a a smart defense lawyer would say, I know the statute prohibits a threat or imprisoned intimidation, but I've got a Supreme Court case that says it's got to be with reckless culpability at least. But what if the lawyer doesn't say that? What if the prosecutor doesn't know that? So you'd hope that the judge or the lawyers would understand that they have to apply the First Amendment doctrine, but this makes it easy for them. It builds the doctrine into the face of the statute. And it also eliminates any residual worry that someone would say, well, I didn't have noticed that that was the culpable standard. The law wasn't clear enough as to the fault level. I don't think that's a very strong challenge. But what's the harm in parodying the actual First Amendment scene?

[Rep. Martin LaLonde (Chair)]: Right, right. So we were just looking at acts as Georgetown wants Constitutional Advocacy and Protection document that kind of extends beyond just the true threat, that there's a threat to one's health that's very serious, a serious bodily injury or death. That intimidations can be threatening people with a tax audit or immigration consequences, eviction. Those are kind of things which don't amount to a threat to serious bodily harm. Right. So is that do we need to write that in? No. Don't think

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: I don't I don't think you do. So most constitutional threat law arose in the context of a threat of violence or a threat of harassment or stalking. But you're absolutely right. There are a lot of ways you threaten people, and they wouldn't always be able to violent crime. But my read of the countermand case is that you should just read it as applying to any actionable threat, whether it's a civil or a criminal threat, no matter what the threat is. If the threat is to do something impermissible, illegal, then then the false standard should be reckless. I don't think it's that that hard an issue, that fancy an issue.

[Rep. Martin LaLonde (Chair)]: Okay. So if we put in intentionally or recklessly, do we need I mean, so in our criminal threatening statue, we have a reasonable person in that as well. That it's just what the person threatening intends, but it's it's how a reasonable person would receive that threat. Right. They see it as threatening. Right. Is that necessary?

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: I think I I So as I re as I remember the the general Vermont threat statute, it was written before the counterman case and is probably out of step with the counterman case. That is the it's worded identically to the Colorado statute that the court said was insufficient in in countermeas. So the the it I don't know what the lower courts are doing right now, but if they but the smart move is they would instruct the jury that the threat that the the defendant must have acted recklessly at at a minimum in in communicating the threat. I think I think someone convicted without that would be have their conviction subject to reversal under the countering test.

[Rep. Martin LaLonde (Chair)]: But wouldn't it still be a question? Well, certainly, as a defense attorney could argue, yeah, it was reckless, but really was that threatening? Mean, that's always

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: the case. So that's the case just under the criminal law. And it's also a case under the First Amendment. And so particularly in the political realm, if you have people marching or rallying in front of a polling spot, let's say, and they're engaged in rhetoric, there would be a factual question as to whether they were just engaged in over the top rhetoric or it was actually a true threat. That's the First Amendment standard of the sort that can be punished by the government. So that factual question is always there. You can't eliminate that factual question. It's always there. And sure, a court so if you look the threat cases in the Supreme Court, one of them, an early case, said that when someone said, I'd like to take my rifle and put LBJ, President Johnson, in my sights, the court said that was not a true threat. That was political rhetoric. It was a guy blowing off his anger. He never really was threatening the president. It's protected by the First Amendment. So you can't eliminate you can't eliminate those those fact issues. I argued a true threat case in the US Supreme Court, a case called Virginia versus Black dealing with a Ku Klux Klan burning, of a cross. And the court said not every cross burning is a threat. It may be racist. It may be evil. It may be stuff we hate. But you've gotta show in the specific case, like burning a cross in somebody's yard, that's a threat. That's that's an easy So that's always gonna be there. You're never gonna get out from under that. None of that worries me in this situation because there's ideological element here. This is a very vanilla, straightforward. You can't threaten you can't threaten people about voting. You can't threaten people about, you know, that are running the the the polling places. It's it's very common in our law to say, well, we got a general rule against intimidation. We got a general rule against threats, but we really are worried about this particular kind. We don't want threats against the domestic partner. We don't want threats against the police officer, and there's no constitutional problem to doing it.

[Rep. Martin LaLonde (Chair)]: So maybe this is the example I should use as well, just to make Yeah. I'm maybe beating the swarms, but that's not very nice to do, especially with an animal cruelty bill that we do right now. But putting that aside, it's just a figure of speech, people, just a figure of speech. So the landlord who says to the person, if you don't vote for my person, I'm kicking you out. That's not a true threat in the sense that it's serious bodily No, it's

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: not a threat of bodily harm, but it is, in my view, an illegal threat. It is intimidating a voter. If the landlord does it intentionally or with recklessness with regard to how it would be understood, it can be criminalized. No problem with it being criminalized. And if you think of the mafia movies, I may have on Oprah, couldn't repeat that sort of thing. Often the retaliation is not physical harm. Mean, can be, but it can be all sorts of things.

[Rep. Martin LaLonde (Chair)]: Angela? You

[Rep. Angela Arsenault (Member)]: just raised this question for me. When considering recklessness, is there any thought to or consideration for the threateners hoped for outcome or the like likelihood of that outcome?

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Right. The answer is no.

[Rep. Martin LaLonde (Chair)]: Okay.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: So the answer is it could be a threat that it meets the recklessness standard, but is unlikely to be carried out. And that's ancient law. I may brandish your gun and threaten you, and it may not even be loaded. And I may know that I'm never gonna do it, but but if it's perceived and and and the paragraph in the supreme court case that I've taken this from, I I wrote I I copied and wrote out so you can see. It was an opinion by justice Kagan, and and and she says And she lays out there's three basic levels: intent, recklessness, and just objectively perceived, like a negligence. And she said, We'll go for the middle one.

[Rep. Angela Arsenault (Member)]: And similarly, it doesn't have to be that the threat in the landlord example, even if the person doing threatening doesn't think that their words will lead the person to vote one way or another.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Doesn't matter. It doesn't matter. Only lawyers can think this thinly, but let me read you the language. The court goes on to explain what recklessness means, and and it is when he consciously disregards a substantial and unjustifiable risk that the conduct will cause the the harm. So the person can't get off by saying, I didn't mean to threaten. The prosecution can say, yeah, but you acted recklessly. When you said that, only a reckless person would not understand that a person would think you were threatening them with some sort of unjustifiable harm.

[Rep. Martin LaLonde (Chair)]: So Ian, and people are leaving because there's a 02:00 thing. Sorry. Yeah, I don't mean to No, I'm not trying to finish. I mean, there'll be time to get down there.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Thank you. Sure. My pleasure. Thanks for having I

[Rep. Martin LaLonde (Chair)]: think the one thing I kind

[Unidentified Member (House Judiciary Committee)]: of want just to kick the tires on is not the threatening, but the intimidation. Yeah. The reckless intimidation. Yep. So this is a fat pattern that I can see a lot more readily around our polling chains. Not a landlord or a mafia person, but someone with a big sign standing and being aggressive. Can you just walk us through that a

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: little Yeah. So in the case that I argued in the Supreme Court, the Virginia statute actually used the word intimidate. And and and everybody treated intimidate and threat as essentially synonymous for First Amendment purposes. And to the extent of pressure that you're feeling is the discomfort at being faced with this anger or this vitriol, that's just your problem. In our society, you're gonna have to deal with speech you don't like and deal with speech you think is mean and deal and then you may you may feel subjectively chilled a bit, but that's not good enough. It's got and and and so I I would treat the words threat and intimidate as synonyms. You don't necessarily need them both, but I don't see I don't see any problem in having them both.

[Rep. Martin LaLonde (Chair)]: I guess Yeah.

[Unidentified Member (House Judiciary Committee)]: On the question of if they're synonymous whether we should have them both, I guess I'm thinking about trying to balance the potential chilling effect. Sure. And if they are the same

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Right. So listen, I hear your question. Maybe you the can argument that to be safe, you just take the word intimidate out because everything else is a much sharper word. Threat is you know, threat, course. I think you're fine with it in there. But if you worry that it just has too it's it's a little too loose and doesn't have the baggage that threat does, which is a well understood term, you could you could avoid problem. And and it's hard for me to imagine that any real bad person, any real wrongdoer, it would make a difference whether you charge them with intimidation or threat. I mean, if the conduct's egregious enough.

[Rep. Martin LaLonde (Chair)]: Yeah. Yeah. So if the person out there holding the sign says that I'm gonna kill your family, that crosses the line probably. Yeah.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Absolutely. We know your addresses. Mean you always take into account the context.

[Rep. Martin LaLonde (Chair)]: Or I know where you live and I'm going to run over your mailbox. Well that might be a threat that's not serious bodily harm. But so it is the context and it's

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: gotta be proven beyond a reasonable doubt. That's another safety valve. It's criminal law.

[Rep. Martin LaLonde (Chair)]: Yeah. So Yeah. What did your students say that

[Unidentified Member (House Judiciary Committee)]: you should come here with us?

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: I don't want to waste your time, I'll tell you something. This is almost academic, but it's interesting. Not really the part of this that you're dealing with, but the part that's ancient, which is the which is we made a few small corrections to showing the ballot to showing the ballot. So first of all, why on earth would it be a crime to show someone your ballot? And so we researched where that came from, and many states have this. And it came from the switch at the end of the nineteenth century from the old American way of voting to the Australian ballot, the secret ballot. And most of us don't have any idea what a zoo it was in the nineteenth century. You would be walking into this this polling place filled with people trying to make bribes, trying to influence you, trying to intimidate you. It was like the bar scene in Star Wars. I mean, it was this and the ballots were different colors. So if you're gonna vote for a Democrat, you got one color ballot. You're gonna vote for Republican, you got another color ballot. Everybody knew who you're voting for, and it was a huge amount of corruption. In fact, it it almost, one of the big presidential elections that was thrown into disarray was because of all that corruption. So the country went to a reform, the secret ballot. And you think all that means is nobody has any business with what I'm voting. I I get to vote for secret, and and I don't have to show anybody anything. But when they did that, they also often made it illegal to show someone your bet. Well, why would you do that? And the answer is that if the person pressuring you said, you want this job, you better vote for the for the mayor. You know, you you you want you you know, you want that free turkey? You better do what I said. You want the $50 I promise you? And the voter might say, Well, I voted the way you told me to. And the person might say, Uh-uh. You gotta show me the ballot or I'm not gonna believe you and carry out the bribe. And that's where these laws came from. As far as anybody can tell, no one ever is prosecuted under it. It became kind of a non issue. If you think about the way we vote here in Vermont, I vote in little tiny town in Stratford. I write out my ballot, I walk about 20 feet, put it in the machine. There's nobody else around. Who am I gonna show it to? It would be weird anyway. It's kind of a non problem. But here's the interesting wrinkle. Ten years ago, there was a craze and people began taking selfies on their smartphones of their ballot. So they would go into the little booth, mark the ballot, and then take a selfie of it and post it. And the question then became, if you have these laws, is that violating the no show me rule? New Hampshire actually added to its no show me statute to prohibit a selfie. Ain't that wild? And that's actually a really interesting first question. And there's only two judicial decisions. One in New York said it's permissible to prohibit showing someone the ballot because of this history, and a selfie is also impermissible. But the first circuit, the fed the federal court of appeals that covers New Hampshire struck down the New Hampshire law, basically saying, we really this seems pretty silly to us. We can't really see who's harmed. You should have you have a right to go out and tell people who you voted for. Why shouldn't you be able to take a selfie? Is there really any proof that this is causing bribery and corruption? No. We strike it down. I I'm not saying you do anything with that. Leave it. It's leaving. It's probably never been used, never will be used. The students love the

[Rep. Martin LaLonde (Chair)]: love that First Amendment question. Voter acceptance.

[Rep. Angela Arsenault (Member)]: Yes. They might have violated that.

[Rep. Martin LaLonde (Chair)]: So here's the thing. I mean, because we send out the ballot to everybody. We have voter mail.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: We send the ballot. Right. So it's sitting there. And my kids asked me, and they said because I told them what I was doing. They said, you mean when you voted during COVID and you showed us your vote, you were

[Rep. Martin LaLonde (Chair)]: violating the law? I said, probably. Anyway Maybe this is the time to get rid of that.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: You could get rid of it. You could decide it's a nonproblem. It's up to you. But it does raise it in. It does raise a a possible serious First Amendment objection because the likelihood of any harm coming from it is pretty low. Right. And particularly, I don't know that the Vermont law covers a selfie because if you look how it's word No worries. Let me know how the voter is about to vote.

[Rep. Angela Arsenault (Member)]: What if it doesn't?

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: So I suppose you would fill it out and then take the picture. But you don't actually vote, I guess, until you stick it in the machine. Right? It is about to vote still. It still is about to vote.

[Rep. Angela Arsenault (Member)]: You're asking, what is the vote? Is it when you're not showing it?

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: That's correct. Sure. So the moment you

[Unidentified Member (House Judiciary Committee)]: take it, it's you're violating the law. But because

[Rep. Angela Arsenault (Member)]: But you don't show anyone until after you voted.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Right. Taking it wouldn't violate the law. It would be taking it and then maybe texting it or posting it before you before you make the walk. Yeah. I mean, it's goofy. But anyway

[Rep. Angela Arsenault (Member)]: I think fire away I didn't buy, like, a lot easier.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: But our students thought it it was subject to a serious First Amendment challenge.

[Rep. Martin LaLonde (Chair)]: Well, that's good. It's amazing. That's an interesting question.

[Rep. Angela Arsenault (Member)]: So when you take your kids in with you to the ballot box, they're

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: And they watch you do it. Yeah. Yeah. Right. I mean, it's a common sense would tell you who's gonna prosecute for that. But, anyway

[Rep. Martin LaLonde (Chair)]: Yeah. Right.

[Rep. Angela Arsenault (Member)]: I appreciate that it outlines a little bit the sanctity of voguing.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: And that's why it does uphold that. And there is an interesting US Supreme Court case. I know I'm telling you way more than you want to know. A lot of states bar wearing apparel that is that is advocating who the candidate should be that you're voting for into the polling place. And so you can't have vote for, you know, Trump on your T shirt or or or vote for Harris on your T shirt. You can't wear it in. And in a case called the Mansky case, also from two years ago, the Supreme Court, talking about what you're talking about, the sanctity of the seriousness of it, said, if the law was carefully written, we might uphold these anti apparel ones. But the particular law in front of it, Minnesota, was too ambiguous. It included not only candidates, but issues like global warming and stuff like that. And the court said that's too broad. We're gonna strike it down. But one other important thing, a polling place is not a public forum. A polling place is not like a park. It's not like the area outside this courthouse. It is a place where you're supposed to cast your vote, and you can't have advocacy there. And even up to 100 feet from the entrance of the polling place, there is a supreme court case. So as you can not allow electioneering, not allow active campaigning within 100 feet. So it's this idea, you go through the gauntlet, everybody's yelling at you, everybody's showing up signs. You finally get there and you have peace to exercise your vote. So that's legit.

[Rep. Martin LaLonde (Chair)]: I think we either have that law or is it just policies?

[Rep. Angela Arsenault (Member)]: No, it's a It's a law. Right?

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Electioneering within 100 feet. Is it 100 feet?

[Rep. Angela Arsenault (Member)]: We understand well the whole perimeter, what a polling place actually is

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: because of the firearms. A great

[Rep. Angela Arsenault (Member)]: sticker for a candidate. Correct.

[Rep. Martin LaLonde (Chair)]: Alright. Well, thank you students. My pleasure. Anytime. And I'll pass this up to

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: you so you have the copy of the cases and all the language and you all do what you It's like

[Rep. Martin LaLonde (Chair)]: okay if we post that. Of course, you want. And if

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: need me, I love doing it.

[Rep. Martin LaLonde (Chair)]: Yeah. Would love to have you here. So we'll keep looking All for right. Take care, folks. Thank you. The only other First Amendment one we might have. I don't know what First Amendment is. Maybe you

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: We have a law purpose constitution.

[Rep. Martin LaLonde (Chair)]: Yeah. Right. No. This this one is having access by the public to online criminal records in our courts.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Oh yeah.

[Rep. Martin LaLonde (Chair)]: So the courts, they can go to a courthouse, the press can go to a courthouse or the public can go to the courthouse and they can get a copy there, but we have it all electronic and they are barred from it. So that's going to be a bill.

[Rodney A. Smolla (Senior Professor, Vermont Law and Graduate School; former President)]: Yeah, that could be a Yeah, so if you want to talk to me about that, I know that they're there fairly well.

[Rep. Martin LaLonde (Chair)]: Okay, great. Thank you all for having Thank you very much. Appreciate it. So we are