44
Freedom of speech is "among the most fundamental personal rights and liberties
of the people." U.S.D. No. 503 v. McKinney, 236 Kan. 224, 234, 689 P.2d 860 (1984).
The right is "'generally considered coextensive'" with that right protected under the First
Amendment to the United States Constitution. It is not absolute. Prager v. Kansas Dept.
of Revenue, 271 Kan. 1, 37, 20 P.3d 39 (2001); State v. Russell, 227 Kan. 897, 899, 610
P.2d 1122 (1980). The freedom of speech constitutional guarantee has "'its fullest and
most urgent application'" to political speech. Susan B. Anthony List v. Driehaus, 573 U.S.
149, 162, 134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014).
A review of Kansas precedent leads us to hold that strict scrutiny applies when a
fundamental right is implicated. Strict scrutiny analysis requires consideration of whether
the enactment serves some compelling state interest and is narrowly tailored to further
that interest. Hodes, 309 Kan. at 663. "Where a statute restricts the speech of a private
person, the state action may be sustained only if the government can show that the
regulation is a precisely drawn means of serving a compelling state interest." McKinney,
236 Kan. at 235. But courts apply varying degrees of scrutiny depending on the nature of
the infringement on free expression. City of Wichita v. Trotter, 58 Kan. App. 2d 781, 790,
475 P.3d 365 (2020), rev. denied 312 Kan. 890 (2021).
The United States Supreme Court has cautioned that free speech concerns
sometimes intersect with a state's need to regulate elections. First Amendment protection
is "'at its zenith'" when it comes to "'core political speech.'" Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182, 186-87, 119 S. Ct. 636, 142 L. Ed. 2d
599 (1999). But "'there must be a substantial regulation of elections if they are to be fair
and honest and if some sort of order, rather than chaos, is to accompany the democratic
processes.'" 525 U.S. at 187. When a law burdens "core political speech" or "pure
speech," it is subject to "exacting scrutiny." McIntyre v. Ohio Elections Comm’n, 514
U.S. 334, 344-45, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995); Meyer v. Grant, 486 U.S.
414, 420, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). But when the law merely regulates