Susan B. Anthony List v. Driehaus
Issues
Can a party bring a pre-enforcement challenge to a state law that prohibits the dissemination of known false statements about political candidates, if the statement is designed to promote the election, nomination, or defeat of the candidate?
In March 2010, Congress passed the Affordable Care Act ("ACA"). Steven Driehaus, a congressman from Ohio who voted in favor of the ACA, was up for re-election later that year. During the lead-up to that election, Susan B. Anthony List ("SBA List"), a pro-life nonprofit organization, planned to run an advertisement attacking Driehaus for voting for the ACA. Before the advertisement ran, Driehaus successfully filed a complaint with the Ohio Elections Commission claiming that SBA List would violate two Ohio statutes that prohibit the use of false statements in campaign advertisements. In this case, the Supreme Court will determine whether SBA List has standing to challenge those laws based on a theory of past or future harm. If the Court determines that SBA List has standing, then the Court will consider whether such laws violate the First Amendment’s protection of free speech. This case has important implications for political speech, including the extent to which it can be curtailed and the proper method for challenging its proscription.
Questions as Framed for the Court by the Parties
- To challenge a speech-suppressive law, must a party whose speech is arguably proscribed prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold?
- Did the Sixth Circuit err by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree?
Facts
In March 2010, Congress passed the Affordable Care Act (“ACA”). See Susan B. Anthony List v. Driehaus, 525 Fed. App’x. 415, 416 (6th Cir. 2013). Susan B. Anthony List (“SBA List”) is a pro-life nonprofit organization that opposes the ACA, claiming that the bill uses taxpayer money to fund abortions.
Edited by
- Niraj Chokshi, The Washington Post, Will the Supreme Court Uphold Our Right to Truthiness? (March 5, 2014).
- Trevor Burrus, Forbes, Ohio Has a Ministry of Truth, and It Isn’t Much Better Than George Orwell’s (March 5, 2014).