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?
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. See id. Prior to the 2010 general elections, SBA List planned to release advertisements critical of Congressman Steven Driehaus of Ohio, a member of Congress who voted in favor of the ACA and who was up for reelection. See id. In particular, SBA List intended to put up a billboard that read, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” See id. at 416-17. Ultimately, though, the company that owned the billboard decided not to put up the advertisement after Driehaus threatened to bring a lawsuit against the company if it aired SBA List’s message. See id. at 417.
On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission (“the Commission”) against SBA List claiming that the advertisement violated Ohio Rev. Code §§ 3517.21(B)(9)-(10). See id. The first section makes it unlawful for any person to knowingly make a false statement about a candidate’s voting record during a campaign for political office with the intent to affect the outcome of that campaign. See id. The second section prohibits a person from posting or otherwise disseminating any false statements about a candidate if the statement is designed to defeat the candidate. See id.
Under Ohio law, any person can file a complaint with the Commission alleging a violation of state election laws, and if the Secretary of State knows of such a violation, he or she must file a complaint. See id. If such a complaint is filed shortly before an election, the Commission will refer the complaint to a panel of members for an expedited hearing. See id. At that hearing, the panel will determine whether “probable cause” exists for the full Commission to hear the complaint. See id. If a matter is referred to the full Commission, the Commission must decide whether there is clear and convincing evidence that a violation occurred. See id. If so, the Commission can refer the matter to the prosecutor, although the prosecutor is not obligated to act. See id. The full Commission or the probable-cause panel may also determine that a complaint is frivolous and order the complainant to pay attorney’s fees and/or the Commission’s own costs. See id. A party may appeal an adverse final decision of the Commission in state court. See id.
On October 14, 2010, a three-member panel, by a 2-1 vote, found that there was probable cause and referred the complaint to the full Commission. See id. The Commission set a hearing for two weeks later and the parties began discovery. See id.
Soon after, SBA List filed this case in federal district court seeking declaratory and injunctive relief from enforcement of the Ohio election laws and a temporary restraining order to enjoin the Commission hearing. See id. The district court denied the motion and stayed the federal action under Younger v. Harris, 401 U.S. 37 (1971), a decision that was affirmed by the Sixth Circuit. See id.
Driehaus and SBA List agreed to postpone the full Commission hearing until after the November 4 election. See id. Driehaus lost the election and later withdrew his Commission complaint. See id. SBA List agreed with the withdrawal, and the proceedings ceased on December 2, 2010. See id.
On December 6, the district court lifted its stay, and on December 21, SBA List filed an amended complaint alleging that the Commission proceedings chilled its speech and associational rights. See id. SBA List expressed its intentions to continue to engage in similar activity in the future, but worried about the ability of future candidates to stall or prevent those actions by filing similar complaints with the Commission. See id. at 417-18.
SBA List’s case was consolidated with a case brought by The Coalition Opposed to Additional Spending and Taxes (“COAST”), an anti-tax advocacy organization who filed a similar federal action, though COAST did not allege that it was ever involved in a Commission proceeding. See id. at 418. The district court granted the defendants’ motions to dismiss on standing, ripeness, and mootness grounds. See id.
The Sixth Circuit affirmed the district court’s dismissal of the case, holding that both SBA List’s and COAST’s claims were unripe for adjudication. See id. at 423. On January 10, 2014, the Supreme Court granted SBA List’s petition for certiorari. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 895 (2014).
This case presents the Supreme Court with the opportunity to determine when a party may challenge a state law restricting political speech as unconstitutional.
FIRST AMENDMENT CONCERNS
SBA List and supporting amici argue that the Ohio election law, as currently enforced, violates the First Amendment because of its chilling effect on speech. Amicus 1851 Center for Constitutional Law contends that the right to open political discourse is the touchstone of the American system of democracy. Brief for 1851 Center for Constitutional Law in Support of Petitioners at 10. The Supreme Court, the Center argues, has repeatedly recognized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id. Amicus Center for Constitutional Jurisprudence ("CCJ") agrees, maintaining that the Ohio law condemns would-be critics of political candidates from speaking even if those critics believe a fact is true. See Brief for Center for Constitutional Jurisprudence at 8. This is the case, the CCJ claims, because under the current framework, critics may fear that their speech will result in a Commission hearing, and the time and expense of such a hearing, in addition to possible criminal and civil sanctions, is far too burdensome. See id.
Numerous amici in support of SBA List argue that speech critical of public officials is an important type of protected speech under the First Amendment. For instance, the CCJ argues that the First Amendment drafters understood the importance of free and unfiltered political dialogue between politicians and the voting public. See id. at 5. The CCJ also points to James Madison’s remarks during House debate over the First Amendment to support its argument: “The right of freedom of speech is secured [when] . . . the people may therefore publicly address their representatives.” See id. Similarly, the Center for Competitive Politics ("CCP") believes that campaign speech that is of “questionable veracity” is best countered by a system that encourages more, not less, speech. Brief for Center for Competitive Politics in Support of Petitioners at 11. The CCP maintains that politicians are in a public position that allows them to easily respond to criticism made against them, and that here, there is no indication that “counterspeech” would not serve to overcome SBA List’s allegations, even if those allegations are false. Id.This idea of counterspeech is reiterated by amicus CCJ, who agrees that the First Amendment protects SBA List’s speech, even if it is false, because Driehaus has the opportunity to respond. See Brief for Center for Constitutional Jurisprudence at 9. The CCJ argues that the alternative to counterspeech, exhibited by Ohio’s statute, “poses too great a risk to First Amendment rights.” Id.
Driehaus concedes the importance that SBA List and supporting amici place on the First Amendment, noting that “all can agree that courts have gone, and should go, to great lengths to nurture free speech.” Brief for State Respondents at 1. Notwithstanding the significant First Amendment issues at stake here, Driehaus maintains that there are other important interests that weigh in favor of “postpon[ing] judicial decision on ‘far reaching’ First Amendment issues.” Id.at 2. One of those issues is the promotion of federalism. Driehaus contends that it is the state courts’ role to resolve matters of state law, and that federal courts should only step in when a concrete controversy arises. Id.at 30. The fact that a constitutional issue—here the First Amendment—is involved in a case does not automatically grant the case federal jurisdiction. Id.
Driehaus further maintains that SBA List misapplies First Amendment principles in this case. SBA List claims that a potential risk that its speech would be chilled by the Ohio statutes is enough to invalidate the statute on the merits. See id.at 49. Driehaus, however, argues that this contention is inaccurate and that the harm of a potential chilling effect alone does not make the case ripe for adjudication. See id.at 49. If the Court finds that SBA List has standing to challenge the law, Driehaus believes that the courthouse door will be open to future plaintiffs wishing to challenge laws as unconstitutional when an actual case or controversy does not exist. See id.at 52.
In addition to the First Amendment implications at stake here, this case also raises important issues about the administrative process. In particular, the ACLU and ACLU of Ohio maintain that the Sixth Circuit’s decision that this case is not ripe for adjudication risks insulating laws that inhibit core political speech from judicial review. See Brief for ACLU & ACLU of Ohio in Support of Petitioners at 15. Amici argue that when political speech is at issue, a more flexible justiciability standard is necessary, and that a credible fear of prosecution for engaging in political speech should be enough to bring a claim in court. See id.
Amicus 1851 Center for Constitutional Law argues that the implications of the Sixth Circuit’s determination regarding justiciability are damaging to free speech principles. Amicus claims that Ohio’s administrative speech-policing regime invites manipulation on the part of politicians. See Brief for 1851 Center for Constitutional Law in Support of Petitioners at 16. Under the current regime, for instance, politicians who are subjects of political attack ads may file a complaint with the Commission shortly before an election, thereby ensuring that the speaker won’t have an opportunity to challenge the legality of its speech in court until well after the election. See id. at 17. The 1851 Center claims that this system is particularly dangerous because, “without judicial intervention, even truthful chatter and gossip risks being burdened and suppressed by the [Commission’s] adjudicatory process. See id. at 18.
SBA List presents the Supreme Court with several questions about the justiciability of claims challenging the constitutionality of state laws that prohibit false political speech during election campaigns. Petitioners SBA List and COAST argue that: (1) the First Amendment protects false speech; (2) laws which prohibit false political speech during election campaigns cast a “chill” on political discourse that is inconsistent with the First Amendment; (3) the Sixth Circuit erred in its opinion below because a plaintiff may pursue a pre-enforcement challenge to a speech-suppressive law if there is a “credible threat” that the plaintiff’s speech will be penalized under that law; (4) Petitioners have satisfied the burden of showing that a credible threat exists here; and (5) the rationales advanced by the Sixth Circuit in support of its opinion below are incompatible with basic First Amendment values.
State Respondents Steven Driehaus, et al., counter that (1) the doctrine of ripeness limits federal-court jurisdiction to actual cases or controversies, and Petitioners’ views about the constitutionality of Ohio’s laws cannot justify relaxing Article III’s requirement of ripeness; (2) Petitioners allegations fail to satisfy the doctrine of ripeness because Petitioners’ allegations of a past injury do not establish a future injury and Petitioners’ allegations of a future injury are too speculative; and (3) Petitioners are mistaken in their interpretation of the “credible threat” standard as it applies to this case.
FALSE STATEMENTS AND THE FIRST AMENDMENT
As a foregoing matter, Petitioners SBA List and COAST argue that even false speech is protected by the First Amendment. See Brief for Petitioners at 10. In support of this proposition, SBA List and Coast cite to the Supreme Court’s opinion in United States v. Alvarez, where the Court stated that prohibiting false speech casts “a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.” 132 S.Ct. 2537, 2548 (2012). Yet, as SBA and COAST point out, almost one-third of the states still prohibit false political statements made during election campaigns. See Brief for Petitioners at 11. According to SBA List and COAST, such laws are most likely unconstitutional, yet they continue to have a deleterious effect in those states that prohibit such speech. See id. at 11. State Respondents counter by citing to Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464 (1982),arguing that Petitioners’ views concerning the constitutionality of Ohio’s laws cannot justify relaxing Article III’s standards of reviewability. See Brief for Respondents at 52.
Next, SBA List and COAST argue that the Sixth Circuit erred in holding that their claims were not ripe for review. See Brief for Petitioners at 11. SBA List and COAST cite to the Supreme Court’s precedent in Babbitt v. United Farm Workers Nat’l Union, where the Court held that a pre-enforcement challenge is ripe for review if “the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” 442 U.S. 289, 298 (1979). According to SBA List and COAST, every Circuit except the Sixth Circuit presumes that a credible threat of prosecution exists if the plaintiff’s intended speech arguably violates the law, whereas the Sixth Circuit holds that a credible threat of prosecution exists if the authorities will “certainly and successfully” prosecute the plaintiff. See Brief for Petitioners at 19. SBA List and COAST argue that this distinction is especially important in the First Amendment context because, if the Court applies the higher standard of evidence required by the Sixth Circuit, then more people will choose to censor themselves rather than risk prosecution, and self-censorship produces the exact type of “chilling” effect on free speech that the First Amendment seeks to prevent. See id. at 21.
The State Respondents counter that SBA List’s characterization of the Sixth Circuit’s standard is incorrect. See Brief for Respondents at 46. Driehaus cites to the Supreme Court’s precedent in Clapper v. Amnesty Intern. USA, where the Court stated that a future injury “must be certainly impending,” and that “[a]llegations of possible future injury are not sufficient.” 133 S.Ct. 1138, 1147 (2013) (citation omitted) (internal quotation marks omitted). Driehaus argues that Petitioners must allege more than merely an “intent to speak” because the Court has not exempted threat-of-enforcement cases from Article III’s requirement that plaintiff’s need to allege a “concrete, imminent, and direct injury.” See Brief for Respondents at 47.
Having argued that the Supreme Court should apply the lower standard of evidence required by every Circuit except the Sixth Circuit, SBA List and COAST allege that they have satisfied that standard here. See Brief for Petitioners at 25. Specifically, SBA List and COAST argue that the OEC panel already found probable cause to believe that SBA List’s speech violated Ohio law, and when they filed their suits, SBA was defending itself against an actual enforcement proceeding. See id.
State Respondents counter that Petitioners’ claims lack merit. According to Driehaus, while the OEC panel found probable cause to believe that SBA List’s statements were false, the OEC panel never made a final determination. See id. at 40. Moreover, Petitioners’ allegations that they intend to engage in substantially similar activity in the future do not satisfy Article III’s concreteness or imminency requirements because Petitioners fail to identify the targets or content of their future speech. See id. at 35. Finally, State Respondents argue that Article III standing requires an adequate injury at the time when amended complaints are filed, and therefore it is irrelevant that SBA List was defending itself against an enforcement proceeding at the time when Petitioners filed their initial complaints. See id. at 46.
Finally with respect to justiciability, SBA List and COAST argue that they also have satisfied the Supreme Court’s other prudential considerations for determining the ripeness of a claim. See Brief for Petitioners at 28. SBA List and COAST cite to Whitman v. Am. Trucking Ass’ns, where the Court held that prudential considerations require an evaluation of both the fitness of a claim for adjudication and the hardship to the parties of denying review. 531 U.S. 457, 479 (2001). According to SBA List and COAST, their claim is fit for review because it presents a purely legal issue that will not be clarified by factual developments, and they will face a substantial hardship if the Court denies judicial review because they will have no choice in the future except to censor themselves or risk prosecution. See Brief for Petitioners at 28–29.
Driehaus counters that Petitioners also have not satisfied the Court’s other prudential considerations of fitness or hardship, and such standards have heightened significance in the context of First Amendment claims. See Brief for Respondents at 29–32. With regards to fitness, State Respondents argue that a court may decline to review a case if the “case does not provide a good vehicle to decide the claims,” and courts prefer to consider as-applied challenges rather than facial challenges. See id. at 29–31. With regards to hardship, State Respondents argue that hardship is less likely to exist if plaintiffs do not immediately face the dilemma of complying with the law or risking criminal sanction, and even in cases where such a dilemma “looms,” hardship is less likely to exist if plaintiffs have other options, such as seeking an advisory opinion. See id. at 31.
FIRST AMENDMENT VALUES
SBA List and COAST also argue that the rationales advanced by the Sixth Circuit in support of its decision below are incompatible with basic First Amendment values. See Brief for Petitioners at 30. According to the Sixth Circuit, SBA List and COAST failed to establish that their claim was ripe for review because they would not concede that their statements were and would be false, as is required by the Sixth Circuit for pre-enforcement First Amendment challenges. See id. at 31. SBA List and COAST contend that this is irrelevant because the credible-threat test turns on an objective, rather than a subjective, inquiry (i.e., it matters only that the authorities believe the speech is false). See id. Moreover, SBA List and COAST argue that no final determination as to whether their speech was illegal is required to establish a credible threat of prosecution because it is the credible threat of prosecution that creates the impending injury, and this threat continues to exist so long as the authorities do not disavow prosecution. See id. at 36–41. Finally, SBA List and COAST argue that the fact that anyone can bring a claim against them under the OEC’s current procedures makes the threat of prosecution more, rather than less, credible. See id. at 46.
Driehaus counter that Petitioners’ allegations are too speculative. See Brief for Respondents at 34. According to Driehaus, the fact that Petitioners continue to assert that their statements were and would be truthful makes them “another degree removed” from Article III’s requirement of a specific grievance. See id. at 39 (internal citation omitted) (quotation marks omitted). With regards to the OEC’s finding of probable cause, Driehaus reiterates the importance of the fact that the OEC’s finding did not constitute a final adjudication. See id. at 40. Finally, despite the fact that anyone can bring a complaint against Petitioners under the OEC’s current procedures, Driehaus argues that such complainants do not actually enforce the laws, that prosecutors must actually decide to enforce the laws, that prosecutors may only exercise such discretion if the OEC agrees with the complainants, and that state courts may still reject the OEC’s decision. See id. at 55.
On April 22, 2014, the Supreme Court will hear oral arguments in SBA List, a case which presents the Court with several important questions concerning justiciability and the First Amendment. In SBA List, the Court will consider whether the Sixth Circuit erred in holding that, in order to pre-emptively challenge a speech-suppressive law based upon a theory of future injury, a plaintiff must establish that the authorities will “certainly” and “successfully” prosecute him, as opposed to merely establishing that the plaintiff’s intended speech “arguably” violates a law that the authorities have not disavowed. If the Court determines that Petitioners do have standing in this case, the Court will then consider whether the First Amendment’s protection of free speech extends to false political statements made during election campaigns, a form of speech that is still proscribed by law in about one-third of the States. The outcome of this case is likely to have an immediate impact on the upcoming mid-term elections, as well as a long-term impact on the Court’s doctrine of ripeness.
- 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).