Three weeks ago, I explained that in the pending case of Susan B. Anthony List v. Driehaus, Ohio Attorney General Michael DeWine had resurrected a very unusual method of dealing with a statute that he considers constitutionally problematic –namely, filing two briefs in the Supreme Court, one on each side of the constitutional question.  (The last time government lawyers did such a thing was when U.S. Attorney General Levi and Solicitor General Bork filed dueling briefs in 1975 in Buckley v. Valeo, simultaneously defending and attacking the constitutionality of the expenditure and contribution limits of the Federal Election Campaign Act of 1974.  I discuss the Buckley precedent in my earlier post.) 

On March 3, Attorney General DeWine filed an amicus brief on his own behalf in SBA List, nominally “in support of neither party,” in which he articulated his “serious concerns” about the constitutionality of the challenged false statements provisions of Ohio law, and in which he argued that such concerns “should warrant judicial review in an appropriate case.”

On March 26, Attorney General DeWine, along with Ohio Solicitor General Eric E. Murphy, filed his merits brief on behalf of the state officials who have been sued.  The purpose of this post is to bring SCOTUSblog readers up to date on how this second DeWine brief deals with the issues the attorney general raised in his first, amicus brief.

The state officials’ brief does not argue directly that the Ohio law is or is not constitutional – it focuses on the question presented to the Court, which is simply whether SBA List has standing to bring a pre-enforcement First Amendment challenge long before it engages in, or are sanctioned for, election-related speech.  Therefore this second brief does not refer expressly to any of Attorney General DeWine’s constitutional concerns.  Indeed, the second brief does not mention the DeWine amicus brief at all.  In at least one important respect, however, the state officials’ brief appears to be in significant tension with the attorney general’s earlier amicus brief.

SBA List (the lead petitioner in the Supreme Court) asserts that it intends to accuse certain candidates in the forthcoming 2014 election campaign of having supported “taxpayer-funded abortion” because such candidates voted for the federal Affordable Care Act.  Although it insists that such speech will be truthful, SBA List nevertheless argues that when it makes such accusations, it will run a substantial risk of prosecution under an Ohio law making it unlawful to disseminate a knowingly or recklessly false statement concerning an electoral candidate.  It contends that this risk of prosecution makes it permissible for the federal courts to adjudicate the constitutionality of the Ohio law now, long before the election campaign and months before it engages in any election-related speech.

The Ohio law at issue establishes an elaborate multi-step process before anyone can be held criminally culpable under the false statements law.  I described many of those steps in my previous post; I won’t repeat them here.  The primary argument of the DeWine/Murphy brief on behalf of state officials is that SBA List does not have standing to sue, and that the case is in any event unripe, because a prosecution would depend upon a long chain of events, all of which would have to occur but all of which are (the brief argues) highly speculative:  (1) SBA List would have to decide to accuse one or more Ohio candidates of having supported “taxpayer-funded abortion”; (2) someone would have to file a complaint alleging that such speech violates the Ohio law; (3) a panel of the Ohio Election Commission would have to find that there was “probable cause to believe that . . . the violation of a law alleged in the complaint has occurred,” and therefore refer the case to the full commission; (4) the complainant would have to choose to keep the commission proceedings going, perhaps even after the election; (5) the full commission would have to find that the speech violated the law and was not constitutionally protected; (6) the commission would have to decide to refer the case to a prosecutor; (7) assuming the speakers appealed the commission’s determination to state court, the commission’s decision would have to be upheld on statutory and constitutional grounds by three levels of Ohio courts, including the Ohio Supreme Court; and (8) the prosecutor would have to decide to prosecute.  (Nor are these the only possible hurdles to criminal sanction.  In addition, the second DeWine brief explains that the whole question can and might be resolved in an advisory opinion proceeding before the commission long before the election.  And the DeWine amicus brief adds one further possible hurdle, as well – that Ohio law might authorize the attorney general himself to direct the local prosecutor not to prosecute.)

In light of all these uncertainties and future contingencies, argues the Attorney General’s latest brief, SBA List cannot show that prosecution is imminent or even likely.  Indeed, when SBA List engaged in such speech in the 2010 campaign – by accusing a candidate of supporting “taxpayer-funded abortion” – the process never got beyond Step 3:  Just before the election, a commission panel found “probable cause to believe” that the SBA List had violated the law, but that’s where the process ended.  There was no full commission hearing or determination, let alone a criminal prosecution.

The principal point of the attorney general’s earlier amicus brief, however, is that the constitutional damage is done by the third step, by virtue of the “probable cause” finding itself.  As an amicus, Attorney General DeWine argues that the primary way in which the Ohio scheme chills election speech in a constitutionally problematic manner is not the threat of a full commission determination, let alone a criminal prosecution or sanction – as DeWine notes, those things rarely occur – but instead because of the alleged deterrent effect of the initial “probable cause” finding, such as the one the commission panel issued against the SBA List in 2010:  “[A] finding of probable cause, if issued, will often harm, and is often intended by the complainant to harm, the speaker’s campaign, regardless of any eventual final determination by the Commission.”  (Although the briefs do not discuss the standard for probable cause the commission applies pursuant to this Ohio election statute, presumably it is the same as the “probable cause” standard for an arrest – namely, where there is “a reasonable ground for belief of guilt” or where the known facts and circumstances would “warrant a prudent man in believing that the offense has been committed.”)

The attorney general’s amicus brief thus in effect identifies Susan B. Anthony List as a rare “government speech” case, like Meese v. Keene, about whether and under what circumstances an official government characterization of a private party’s speech, in and of itself, might violate the First Amendment because of its deterrent effect upon such private speech, even when there is no realistic prospect of prosecution or formal legal sanction.  In Meese, a plaintiff who planned to exhibit three films demonstrated that the federal government’s characterization of the films as “political propaganda” would substantially harm his chances for reelection as a state senator and adversely affect his community reputation.  The Court held that such a showing was sufficient to give him standing to challenge the government’s designation, even though the Court ultimately ruled for the government on the merits because it found that use of the term “political propaganda” is neutral, evenhanded, and without pejorative connotation.

Attorney General DeWine’s amicus brief in SBA List argues, in effect, that the commission’s finding of “probable cause” to believe a speaker has violated Ohio law – Step 3 in the process described above – is itself enough to violate the First Amendment in the election context . . . and it would therefore follow, presumably, that a realistic prospect of such a probable cause determination would suffice to establish standing and ripeness.

Attorney General DeWine’s second brief implicitly responds in two ways to the first brief’s argument about the constitutional harm of a “probable cause” pronouncement by the commission.

First, the latter DeWine brief argues that there is uncertainty about whether even the first three steps in the Ohio statutory process will recur:  (i) SBA List might decide not to make such “supporting taxpayer-funded abortion” allegations about any (thus far undetermined) Ohio candidates in the 2014 election campaign; (ii) even if it does make the statements, it is possible no one would file a complaint; and (iii) even if there is a complaint, it is possible the commission panel would not repeat its two-to-one probable cause determination from 2010.

Second, the DeWine/Murphy brief on behalf of the state officials implicitly responds to the AG’s amicus brief by arguing that even if there were a serious risk of reaching Step 3 in the next election cycle, a commission panel’s probable cause finding, unlike a final commission determination after a full hearing, is not itself of constitutional significance because of its preliminary nature:  “[I]t is important to remember the preliminary nature of the [2010] probable-cause decision,” the brief explains.  “That finding was ‘not a final adjudication, a finding of a violation, or even a warning that SBA’s conduct violated Ohio law’” (quoting the court of appeals).

Attorney General DeWine’s amicus brief, by contrast, ascribes much greater constitutional significance to the commission’s probable cause determination.  Even though it is only a preliminary finding, writes the attorney general as an amicus, a “probable cause” determination “is perceived by a substantial part of the electorate as the definitive pronouncement of the State of Ohio as to a candidate’s or other speaker’s truthfulness,” just before an election – a key factual assertion to which the DeWine brief for the state officials does not respond directly.  [For what it’s worth, the DeWine amicus brief does not cite any evidence, in the record or otherwise, in support of its assertion about the effect of a probable cause determination on the Ohio electorate.]

The federal government has also filed an amicus brief, in which it argues that some of SBA List’s claims are ripe “cases or controversies.”  Interestingly, on the question that divides the two DeWine briefs, about the significance of a probable cause determination, the federal government’s brief is ambiguous, appearing to offer partial support to both positions.

On the one hand, the federal government’s brief takes pains to urge the Court to limit the circumstances in which government pronouncements about the possible legality of private speech could support First Amendment claims.  It is, after all, common for the government to administer “broad commercial regulatory scheme[s] in which agency determinations about the lawfulness of particular conduct are a necessary part of doing business.”  “We do not suggest,” writes the government, “that mere pronouncements by government officials outside of the election context would in themselves be actionable.”  Not surprisingly, therefore, the federal government does not argue – at least not expressly – that the likelihood of a preliminary “probable cause” finding by the Ohio commission at Step 3, standing alone, would be sufficient to establish standing.

Even so, argues the federal government, “[i]t is significant that, under Ohio’s statutory scheme, an official and public determination by the Commission, made after a hearing, to the effect that petitioners knowingly misinformed the electorate in the context of an ongoing election could reasonably be expected to reduce the effectiveness of petitioners’ election-related message.”  In other words, the federal government focuses upon Step 5 of the Ohio process – a post-hearing finding by the full commission that the speech in question violated the Ohio false statements law and was not constitutionally protected.  (The federal government’s brief points to a section of the Ohio law providing that someone found in violation by the commission at Step 5 is considered “adversely affected” for purposes of seeking judicial review, “reflecting the State’s view that the Commission’s action itself may have a concrete impact in the election context.”)

Accordingly, concludes the federal government, “the prospect of a Commission determination [i.e., at Step 5], combined with the increased prospect of a criminal prosecution following such a determination [i.e., Step 8], is sufficient” to “constitute the sort of ‘credible threat’ necessary for standing.”

What the federal government does not explain is why there is a prospect of such a final commission determination and subsequent criminal prosecution in this case.  The federal government’s brief reasons that a future probable cause determination with respect to the plaintiffs’ speech is likely, and then simply asserts that the likelihood of such a probable cause determination “shows a sufficient likelihood” of a full commission adjudication and subsequent criminal prosecution, as well.  Even if there is a realistic prospect of a “probable cause” finding at Step 3, however, the DeWine amicus brief represents that such a probable cause finding rarely goes to the full commission before the election; that “a great many charges that result in a finding of probable cause are dismissed by the complainant after the election”; and that even in cases where the case is adjudicated and the commission finds a violation, it refers the cases to prosecution “only sporadically.”  If these representations by Attorney General DeWine are accurate, it is difficult to understand the federal government’s assumption that the likelihood of a probable cause finding makes likely the subsequent state actions – the full Commission adjudication and criminal prosecution – that the federal government suggests are necessary to support Article III standing and ripeness.

Posted in Susan B. Anthony List v. Driehaus, Featured, Merits Cases

Recommended Citation: Marty Lederman, DeWine v. DeWine (with the United States somewhere in between), SCOTUSblog (Apr. 8, 2014, 10:30 AM), http://www.scotusblog.com/2014/04/dewine-v-dewine-with-the-united-states-somewhere-in-between/