A federal judge heard lawyers debate whether the "selfie" social media phenomenon was a fad or a permanent fixture before promising Tuesday to rule by week's end whether the First Amendment extends selfies to the polling booth despite a state law banning people from showing their marked election ballot to others.
Judge P. Kevin Castel listened as a lawyer for three voters insisted his clients should be allowed to distribute ballot selfies on social media. A city lawyer, Stephen Kitzinger, argued against it.
"Selfies have been a thing, in my opinion, far too long," Kitzinger said. "But it's a fad. And fads don't give rise to Constitutional rights."
Leo Glickman, who filed the lawsuit on behalf of three voters, disagreed.
"Facebook and social media is not a fad, your honor," he told Castel. "For better or worse, it's a fact of life."
Kitzinger said the request to declare bans on distributing pictures of completed ballots unconstitutional came too late for this election. He said over 35,000 polling place workers and 2,500 police officers already have been trained and it would be "incredibly disruptive" to change the rules, which in New York City includes a ban on photography at polling locations.
John Schwartz, a lawyer who argued on behalf of the state of New York, said it was wrong that a lawsuit filed two weeks before the election could change rules, causing confusion for voters and poll workers.
"To make a change weeks before a presidential election is going to cause havoc," he said.
Schwartz said lines already expected to be long will grow longer if people are allowed to remain at a voting booth to take pictures of their ballots.
Castel questioned whether letting people take pictures would be disruptive as they maneuvered for the perfect shot, pausing to improve focus or struggle with camera features while others waited behind them in line.
"What impact would it have on delays at a polling place that might suppress voter turnout?" he asked.
Glickman responded that it would be no different than when a voter receives a phone call or pauses to send a text message.
"You believe this would be wildly popular, taking selfies?" the judge asked.
"I think people would like to do it," Glickman answered.
The lawyer said the judge should at least clear the way for people voting at home on absentee ballots or members of the military overseas to send pictures of their ballots since there would be no disruptions as a result.
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