FAN 11.5 (First Amendment News) — Oral Arguments in the Susan B. Anthony Case: Is it Ripe?
Today the Court heard oral arguments in Susan B. Anthony List v. Driehaus, the “false speech”/ “campaign lies” case. Judging from the oral arguments in the case (see below), it seems unlikely that the Court will reach the substantive First Amendment claims raised by the Petitioners.
Susan B. Anthony List is a pro-life group. It released a billboard political attack ad critical of then Congressman Steve Driehaus’s vote in favor of the federal health care bill: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Pursuant to Ohio Revised Code 3517.21(B), which prohibits making or distributing “false” statements about candidates for political office, Driehaus filed a complaint with the Ohio Elections Commission. He alleged that the Susan B. Anthony group violated state law by making a false statement about him and his voting record. The Ohio Election Commission found probable cause to believe the ad violated the statute. Driehaus challenged RC 3517.21 as an unconstitutional restriction on its speech.
Issues: The two main issues in the case are:
- Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must 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; and
- Whether the Sixth Circuit erred 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.
- For Petitioners: Michael A. Carvin, Jones Day
- For Respondent: Eric E. Murphy, State Solicitor for State of Ohio
- For United States: Eric J. Feigin, Assistant to the Solicitor General
The Oral Argument (4-22-14) The full transcript is posted here. Selected excerpts are set forth below.
Questions to Mr. Carvin
Justice Ginsburg: “the other organization [the Coalition Opposed to Additional Spending & Taxes] has never bee charged before the Ohio Election Commission. Is there any reason to believe anybody’s going to lodge complaint against it?”
Justice Sotomayor: “How is that any different from how is that any different from the people in Younger, who the Court dismissed as having no standing because they hadn’t been prosecuted despite the same identical claim? They were chilled, they might intend to do something similar, et cetera.”
Justice Ginsburg: “There is a provision for an advisory opinion, and that’s a question that you are arguing strenuously that this statute violates the Constitution. You could have asked the Commission for an advisory opinion saying that the statute can’t be enforced, but you didn’t do that.”
Justice Ginsburg: “Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.”
Chief Justice Roberts: “Do you want us to just forget about the disclaimer issue and the commission procedure issue or even the as applied issue?”
Questions to Mr. Feigin
Justice Kagan: ” I’m not sure I understood . . . Is it sufficient that somebody has said, I’m going to bring an action against before the Commission, but there’s been no prior Commission determination as to this speech. And it’s just somebody saying, I’m going to go to the Commission and raise this with them if you start speaking in this way. Would that present a credible threat?”
Justice Ginsburg: “Are you arguing that the other organization, COAST, also has standing? Because you you seem to require for the credible threat for there to have been a proceeding before the Commission and there’s been nothing with regard to the other organization.”
Chief Justice Roberts: “Are you prepared to represent to us that if they do the next election that they did in the last one, that yo will not take action against them?”
Justice Scalia: “Well, but the criminal prosecution isn’t all that they’re complaining about. They’re complaining about having having to be dragged through this same this same proceeding next time in the midst of an election campaign, and however minimal the finding that is ultimately made may be, they are going to be subject, for sure, to that proceeding in the next election campaign. And I don’t care if all the commission says is, you know, there is some reason to believe that they were lying. Even if it’s that minimal, you are forcing them, and it is pretty sure that it’s going to happen because somebody will complain, the candidate they are criticizing, you are forcing them to go through this procedure in the midst of an election campaign, right?”
Chief Justice Roberts: “. . . I’m not going to let you put your sign up on my billboard, I might be liable. So, I mean, they may have a certain fortitude and proceeding based on all the reasons that you’ve given, but they need third parties to help carry out their message and there is no reason to think those third parties have any commitment to their political message at all and the slightest whiff of, oh, this is going to be legal trouble, they say, forget about it.”
Chief Justice Roberts: “Well, no, but a defamation action, people sue everybody all the time. No one’s going to take that seriously. In fact, it’s probably going to redound to the benefit of SBA and COAST to say the congressman is, you know, bringing a defamation action. It highlights it, but it’s another thing to have the State involved making a determination that there’s probable cause that you lied.”
Justice Scalia: “The mere fact that a private individual can chill somebody’s speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it. That’s not that’s not the law.”
Justice Kennedy: “Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”
Justice Breyer: “Why can’t a person say, you know, there are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them. And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm. Right? So why isn’t that end of the matter?”
Justice Breyer: “Why shouldn’t it be the harm? That is, whatever has any case said when somebody says, you want to speak in a campaign, and we have a law here that if you do we will throw you in jail and you really do want to speak and the law really does prevent you from speaking, why shouldn’t that be the end of it?”
Justice Ginsburg: “Mr. Murphy, you said there was no credible threat of prosecution, but what about the harm that is occurring? Mr. Carvin said it’s a very short time. They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement. And that just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?”
Justice Kagan: “Why isn’t, as Justice Ginsburg suggested, the relevant harm the probable cause determination itself? There are voters out there and they don’t know that probable cause is such a low bar as you describe it. They think probable cause means you probably lied, and that seems a reasonable thing for them to think and that’s a relevant harm and we should just you know, we don’t even need the prosecution to serve as the relevant harm. That seems quite enough.”
Justice Kennedy: “There’s a curious inversion here. Usually we’re concerned about citizen suits, too many people can challenge challenge the law. Here we’re concerned that many, many citizens can bring the challenge against the candidate. So it’s somewhat reversed. In other words, you have tens of thousands of private attorney generals waiting to pounce and get these people before the commission and have to follow discovery orders.”
Justice Sotomayor: “Do you know of the 500 cases that you mentioned earlier, how many actually ended up in full prosecutions?”
Chief Justice Roberts: “You gave us some answers about how many of the 500 resulted in criminal prosecutions. And all I want to know is how many of the 500 proceedings were mooted out by the fact that the election took place.
Justice Breyer: “What would you say as a lawyer you’re a lawyer for the Commission. You understand it better than I. I’m just making up an example. Do you think they’d prosecute this or not? Somebody walks in front of the House and a political opponent has a big sign that says murderer. No one asked. You said but he voted for legislation that led to the death of many cats. Would they prosecute that or not?”
Justice Alito: “Well, why don’t the statistics that you provided us portray a system that really limits core First Amendment speech without providing much of an opportunity for a judicial review if you’re correct about about Article III here where you have a system where thousands of complaints are filed, and yet in the end, there’s very few prosecutions. And you say, well, the filing of the complaint isn’t enough and the probable cause determination isn’t enough. So you have a system that goes on and on, year after year, where arguably there’s a great chilling of of core First Amendment speech, and yet you’re saying that basically you can’t get into Federal court.”
Justice Alito: “Well, Alvarez wasn’t about false statements in the abstract. It was a criminal prosecution for making particular false statements. And they were as hard factual statements as you will ever find. Did somebody receive the Congressional Medal of Honor or not?”
Justice Sotomayor: “But how are you going to prove how are you ever going to prove that one false statement cost somebody an election?”
Justice Scalia: “Do you think that the allegedly false statement here was a false statement of fact?”
Justice Scalia: “But I mean, we’re talking about whether this law imposes limitations upon the freedom of speech. And if you say whenever you do it, you are going to have a lawsuit, you’re going to be hauled before this commission. You may have a good case, you may not have a good case, but you have to justify yourself to this commission before you can before you can make the assertion.”
The Briefs (Selected Briefs)
- Cert. Petition
- Brief in Opposition to Cert.
- Petitioners’ Reply Brief
- Petitioners’ Merits Brief
- Respondent’s Merits Brief
- Petitioners’ Reply Brief
- Amicus Brief of the United States (in support of partial reversal)
- Amicus Brief of Ohio Attorney General (Bradley A. Smith) (in support of neither party)
- Amicus Brief of ACLU (Steve Shapiro) (for Petitioners)
- Amicus Brief of Cato Institute & P.J. O’Rourke (Ilya Shapiro) (for Petitioners)
- Amicus Brief of First Amendment Lawyers Association (Jennifer Kinsley) (for Petitioners)
- Amicus Brief of American Booksellers Association, et al (Michael Bamberger) (for Petitioners)
- Amicus Brief of Republican National Committee (Michael T.Morley) (for Petitioners)
Note: Notice that the case for the State of Ohio is being argued by the State Solicitor (Eric Murphy) but that the Attorney General of Ohio (Michael Dewine) has filed an amicus brief “in support of neither party” and is being represented by Bradley A. Smith, a former FEC Commissioner and a campaign finance law expert.
The Opinions Below
- Susan B. Anthony List v. Driehaus (6th Cir., 2013, unpublised) (per Judge Jane B. Stranch)
- Susan B. Anthony List v. Driehaus (S.D. Ohio, 2013) (per Judge Timothy S. Black)
- Order Granting Motions by Ohio Election Commission, Driehaus, and Husted to Dismiss Susan B. Anthony List’s Amended Complaint (filed 8/1/11) (per Judge Timothy S. Black)
- Order Granting Motion by Ohio Election Commission to Dismiss COAST’s Second Amended Complaint (filed 8/1/11) (per Judge Timothy S. Black)
I expect the Court to reverse the Sixth Circuit, perhaps unanimously, and I think that’s the right result. Getting a probable cause determination against someone at the Ohio Elections Commission is a real injury which has serious political consequences.
I expect that the Supreme Court will not reach the merits of the constitutionality of Ohio’s false speech law, either on its face or as applied to the Susan B. Anthony group. That would be left to the lower courts with a possible return trip to the Supreme Court in the future. [see here also]
In a news story in the Ohio Plain Dealer, it was reported that
Ohio State University election law expert Daniel Tokaji predicts the court will reverse lower court decisions that said the Susan B. Anthony List couldn’t challenge the law on constitutional grounds because it wasn’t found guilty of a violation.
“It could be unanimous,” Tokaji predicts. “One of the big things to look for at argument is whether or not the justices tip their hands much on the merits, or confine themselves to the standing issues.”
See also Jonathan Adler, “Why the Supreme Court’s ‘right to lie’ case is not really about the ‘right to lie,‘” Volokh Conspiracy, April 22, 2014 (“it’s unlikely the Court will even reach [the First Amendment] question, as the real issues in this case are whether the Petitioner’s claim is ‘ripe’ and whether those accused of making false statements may challenge the law before it is actually enforced against them.”)