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SCOTUS for law students (sponsored by Bloomberg Law): Litigating free speech cases

A dispute over state regulation of political speech serves as the backdrop for an important case about when First Amendment claims are ripe for judicial decision.

The case, Susan B. Anthony List v. Driehaus, involves a constitutional challenge to an Ohio law that makes it a crime during a political campaign to make a false statement about the voting record of a candidate or public official.  A second provision makes it illegal to disseminate any false statement about a candidate, either knowing it is false or with reckless disregard for whether it is true, with the goal of electing or defeating the candidate.

The central issue is whether government officials may punish false political statements or whether such falsehoods are entitled to the First Amendment’s protection for freedom of speech.   But before that issue can be reached, there is a threshold problem of when a law like Ohio’s may be challenged – specifically, whether a constitutional challenge must await the outcome of a prosecution for violation of the law or may instead proceed as long as a speaker feels that his free speech rights are chilled by the very existence of the law.

This stage of the dispute is about justiciability:  whether the issue is ripe for decision because there is a current, timely genuine controversy with injured parties whose grievances can be remedied in court.  The issue of justiciability is an important step in all litigation and should be of interest to students in constitutional law, federal courts, civil procedure, and clinical and trial practice programs.

The dispute arose during the failed 2010 reelection campaign of Representative Steven Driehaus, a Democrat from Ohio.  Driehaus complained to the Ohio Elections Commission after a non-profit anti-abortion group, the Susan B. Anthony (SBA) List, planned to run billboard advertising in his district saying that his vote for President Obama’s health care law, the Affordable Care Act, was a vote for taxpayer-funded abortions.  The billboard company refused the ad when a lawyer for Driehaus raised the possibility of legal action.  But apparently because the ad was still a possibility, Driehaus went ahead with his complaint to the commission.

Following its established procedures, a panel of the commission issued a finding of probable cause that the proposed ad violated the law and referred the matter to the full commission for a hearing.  Rather than await the hearing, however, the Susan B. Anthony List filed suit in federal district court to block both the commission hearing and the enforcement of the law.  The district court declined to stay the commission actions, but the parties agreed to put off the hearing until after the election.  Driehaus lost his reelection bid, and the commission process ended. But the SBA List amended its federal court complaint to contend that its free speech had been chilled by the commission proceedings.

At roughly the same time, a second non-profit group, the Coalition Opposed to Additional Spending and Taxes (COAST), planned to disseminate much the same message – that Driehaus had voted to allow taxpayer-funded abortions and that his complaint to the Ohio Election Commission was designed to “obscure” his vote.  COAST filed suit in federal court, too; although Driehaus did not file a complaint against COAST with the commission, the group alleged that it withheld its messages about Driehaus because of the proceedings against SBA List.

The district court decided the two cases together, dismissing the challenges to the Ohio law on the ground that neither SBA List nor COAST had standing to assert a real injury that was ripe for decision. The U.S. Court of Appeals for the Sixth Circuit affirmed those dismissals, finding that there were no claims that were ripe for review. As to SBA List, the Sixth Circuit held that there was no commission action pending and no “objective fear of future enforcement” against the group.  Moreover, the appeals court concluded, the group was able to get its message out in numerous ways; only the billboard was scrapped as a result of the controversy.  COAST’s claims, the appeals court held, were “even more speculative” because there had never been a commission action or even a threat of one against the group.

The two groups petitioned the Supreme Court, and the Justices are scheduled to hear arguments in their cases on April 22.  In their appeal, lawyers for the groups take a somewhat incredulous tone about the Ohio law, exhorting the Court that – “believe it or not” – false campaign speech is a criminal offense in Ohio.  The groups argue that they face an ongoing, genuine threat to their free speech rights because the existence of the Ohio law raises the specter of a future prosecution if they engage in similar speech. The fact that the threat is real, they contend, is demonstrated at least in part by the Ohio Election Commission’s finding of probable cause in SBA List’s case.

The groups maintain that the Sixth Circuit’s approach to when a First Amendment dispute is ripe for decision would require those wishing to exercise their free speech rights to wait until they have been successfully prosecuted before they could challenge the validity of the state law. This provides far too little protection for free speech, they argue, and ignores the chill on free speech that comes from the mere threat of prosecution created by the law.

The groups also argue that the Sixth Circuit is out of line with numerous other federal appeals courts.  Those other courts, they contend, have permitted lawsuits involving the First Amendment to proceed as long as the parties fear that, if they engage in particular speech, a law may be used against them.

Initially, Ohio argued that the Supreme Court should not hear the case at all, maintaining that there was no disagreement among the circuits. More recently, though, Ohio officials – in an unusual move that Marty Lederman chronicled for this blog – took divergent approaches to the law and filed two separate briefs.  In one brief, filed by Ohio Solicitor General Eric Murphy, the state argues that the lower courts correctly found that there was no genuine legal dispute ripe for court decision. The courts should refrain from reviewing challenges to state laws in the absence of real claims of legal harm, the state argued.

But Ohio Attorney General Mike DeWine filed  a separate brief as a friend of the court in which he raised his own concerns that the Ohio law may violate the First Amendment, especially because of the chilling effect of probable cause findings made by the state commission.

The case has attracted many friend-of-the-court briefs, matching some strange bedfellows.  For example, the U.S. Department of Justice and the American Civil Liberties Union, which often find themselves on opposite sides of cases, agree that at least some portions of the lawsuits are ripe and ready for decision by the courts.

Other groups used their friend-of-the-court briefs address the merits of the underlying case – that is, whether a state may punish false political speech during election campaigns. Several religious organizations warned that if the Court was insensitive to the need for early court intervention in free speech cases, individuals and groups alleging interference with their religious freedom will face the same dangers.

In one notable example of a brief reaching for the merits, the libertarian Cato Institute filed a brief in behalf of itself and political satirist P.J. O’Rourke. The brief argued that political falsehoods – whether broken campaign promises or disparaging comments about opponents – “are cornerstones of American democracy.”

It seems unlikely that the Court in this case will get to the question of whether the Ohio law violates the First Amendment. But the Court’s ruling is likely to be an important one on how the rules of justiciability work and whether they should have any flexibility when free speech is involved.

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Litigating free speech cases, SCOTUSblog (Mar. 31, 2014, 1:49 PM),