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Commentary: Susan B. Anthony List, Clapper footnote 5, and the state of Article III standing doctrine

As Lyle explains, the Court yesterday unanimously concluded that the Susan B. Anthony List has standing to bring an anticipatory facial challenge to an Ohio law making it a crime to disseminate a knowingly or recklessly false statement concerning an electoral candidate. 

SBA’s principal argument was that it should be able to sue in advance because, if and when it accuses candidates in the forthcoming 2014 election campaign of having supported “taxpayer-funded abortion,” it will run a substantial risk of being criminally prosecuted under the Ohio law.  Notably, the Court did not accept SBA’s premise:  It did not conclude that there is a substantial risk of criminal prosecution.  This makes perfect sense, both because the Ohio process established by the false statements law very rarely results in criminal prosecution, and because there is very little chance that any prosecutor in her right mind would ever bring charges against SBA for its particular speech in light of significant, obvious First Amendment constraints (and the need to construe the Ohio statute in light of federal constitutional concerns).

So why, exactly, did the Court so easily, and unanimously, conclude that SBA had standing to challenge the Ohio law – particularly in light of its decision last Term in Clapper v. Amnesty International USA, in which the Court appeared to hold that an allegation of future injury can support standing to sue only if the plaintiff can demonstrate that the injury is “certainly impending”?  Criminal prosecution of SBA, far from being “certainly impending,” is almost unthinkable.  So what gives?

Let’s start with Clapper.  For many years before that 2013 case, students of the Court’s Article III jurisprudence had assumed that a plaintiff could bring an anticipatory lawsuit by showing a “sufficient likelihood” (City of Los Angeles v. Lyons) or a “substantial risk” (Monsanto Co. v. Geertson Seed Farms) that the alleged harm will occur.  The Court’s decision in Clapper called that assumption into question.  The Court appeared to hold in that case that the plaintiff had to prove the harm was “certainly impending” – which certainly sounds like a much more demanding burden.

In Part IV-B of his dissenting opinion in Clapper, however, Justice Breyer identified a series of prior decisions (including Monsanto) in which the Court had found standing upon proof far short of a “certainly impending” harm, typically involving only a substantial risk of harm.

As an apparent concession to Justice Breyer’s exposition, Justice Alito added a footnote to his majority opinion in Clapper – footnote 5 – which reads in pertinent part:

Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about.  In some instances, we have found standing based on a “substantial risk” that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.  Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 11–12).  See also Pennell v. City of San Jose, 485 U. S. 1, 8 (1988); Blum v. Yaretsky, 457 U. S. 991, 1000–1001 (1982); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979).  But to the extent that the “substantial risk” standard is relevant and is distinct from the “clearly impending” requirement, respondents fall short of even that standard, in light of the attenuated chain of inferences necessary to find harm here.

Footnote 5, in other words, appeared to be an alternative holding in Clapper – namely, that even under the less onerous “substantial risk” standard, the plaintiffs in that case had failed to satisfy their burden (at least according to the Court majority).  (The dissenting Justices disagreed on whether the Clapper plaintiffs had demonstrated a “substantial risk” that the government would collect their phone calls pursuant to the challenged statutory authority; but that dispute on the facts of Clapper was distinct from the Justices’ separate disagreement about what the proper standard should be.)

In the wake of Clapper, then, there was substantial confusion among Article III watchers:  Was the traditional “substantial risk of harm” standard still the law?  Or had the Court supplanted it with a more onerous “certainly impending harm” test?

The Court addressed this question directly in Susan B. Anthony yesterday.  Justice Thomas wrote this for the unanimous Court – referring to both standards in a single sentence:

An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “‘substantial risk’ that the harm will occur.”  Clapper, 568 U. S., at ___, ___, n. 5 (slip op., at 10, 15, n. 5) . . . .

This sentence appears to establish a disjunctive test – i.e., that it is sufficient for the plaintiff to prove either that the threatened injury is “certainly impending” or that there is a “substantial risk” of the injury.  Of course, if that is right, then the plaintiff’s de facto burden would be to prove only a “substantial risk” of injury, because there is always such a “substantial risk” of injury in any case of “certainly impending” harm.

To be sure, Justice Thomas writes that the two tests “may” suffice for Article III purposes, rather than that they “will suffice.”  One might, then, infer some ambiguity as to whether he is actually holding that a showing of “substantial harm” is sufficient.  The Court’s application of the standard in Susan B. Anthony itself, however, ought to dispel any uncertainty.  After the sentence in question, the Court does not mention the “certainly impending” test at all – and of course SBAwould not be able to satisfy such a heightened standard.  Instead, the Court writes only of “threats” and of “substantial threats” of constitutionally significant harms – threats that are sufficient to afford SBA standing to sue.

The pertinent passage is on pages 14 to 16 of the slip opinion.  The Court begins by focusing not on the threat of criminal prosecution, but instead on the threat of administrative proceedings that must precede any criminal process under Ohio law.  Private parties, including political opponents, may initiate such administrative proceedings.  If and when SBA engages in the election-related speech in question, Justice Thomas writes, there is a “real risk” that some private party will file a complaint and, more importantly, there is a “substantial” threat that the complaint will result in at least a preliminary “probable cause” hearing before the Ohio Elections Commission.  Quoting from the Attorney General’s amicus brief, which I discussed in two earlier posts, Justice Thomas emphasizes that the very issuance of a probable cause finding by a Commission panel “‘may be viewed [by the electorate] as a sanction by the State,”” thereby “‘permit[ting] a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement.’”

Of course, that possibility is still a far cry from a criminal prosecution – particularly since the Ohio Commission cannot itself impose any sanctions for violating the Ohio law.  It would be quite striking – with unforeseeable consequences – for the Court to hold that a “substantial risk” of such an administrative proceeding, in and of itself, is sufficient to establish Article III standing.  Accordingly, Justice Thomas is careful not to do so:  “Although the threat of Commission proceedings is a substantial one,” he writes, “we need not decide whether that threat standing alone gives rise to an Article III injury.”

Instead, Justice Thomas offers the following holding (with emphasis added):  “The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution.  We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case.”

As I explained above, the “threat of criminal prosecution” of SBA is itself hardly substantial (let alone “certainly impending”).  Indeed, if the amicus brief of Attorney General DeWine is any indication, the prospect of such litigation is, in fact, remote.  The Court itself does not discuss the likelihood of criminal proceedings; but notably, it does not modify its reference to the “threat of criminal prosecution” with “substantial” or any similar adjective.

Accordingly, the Court’s holding appears to be that a plaintiff has Article III standing to bring an anticipatory challenge to a speech restriction when it can show that (i) it intends to engage in conduct arguably covered by the law; (ii) there is a “substantial risk” that such speech will result in “burdensome” administrative proceedings akin to the preliminary Commission hearing at issue in Ohio; and (iii) there is some appreciable risk, even if not substantial, that such administrative proceedings may lead to criminal prosecution.

However, even that three-part holding is not unqualified.  Justice Thomas includes that conspicuous phrase “under the circumstances of this case” at the end of the holding – which could, of course, offer the Court room to maneuver toward a stricter or looser standard in other contexts.  The Court might, for example, insist upon a greater showing of likelihood of harm in cases not implicating the Free Speech Clause, or election-related speech in particular, or in cases that don’t involve any possible criminal sanction.

Even so, Susan B. Anthony does appear to indicate that it is footnote 5 of Clapper — rather than the broader statements in that case about the need for plaintiffs to demonstrate “certainly impending” harm – that will generally govern Article III standing doctrine going forward.  At least for now, the “substantial threat of injury” test survives.


Recommended Citation: Marty Lederman, Commentary: Susan B. Anthony List, Clapper footnote 5, and the state of Article III standing doctrine, SCOTUSblog (Jun. 17, 2014, 4:34 PM),