The Supreme Court has handed down a unanimous decision in Susan B. Anthony List v. Driehaus. This is an important case for the free speech community. It involved poorly written Ohio laws that SBA prohibit the use of false statements in campaign advertisements. It allows politicians to harass public interest groups and force them into costly administrative litigation. The case was brought by the pro-life organization, the Susan B. Anthony List (“SBA List”). Associate Justice Clarence Thomas wrote the opinion for the Court in finding that SBA had sufficient injury to bring the challenge, another victory this term for standing this term after years of disastrous rollbacks by the Court that have barred groups from the courts. The SBA case was one of those considered by my Supreme Court class and once again the class got the prediction right and also mirrored the Court on the merits. We voted 8-2 to reverse the Sixth Circuit. We then voted 9-1 in predicting a reversal.



The original challenge under the dubious Ohio law was brought by former congressman Steven Driehaus. He was made a former congressman after being one of the handful of key votes to pass the Patient Protection and Affordable Care Act (ACA). He and others were successfully targets by ACA critics and was thrown out of office. Driehaus was challenged by Republican nominee and his predecessor, former U.S. Congressman Steve Chabot. While the White House promised to stick by all of those members who risked their seats by voting for the ACA, the DCCC pulled its financial support in the middle of the campaign when polls showed Driehaus trailing. He lost 52% to 45%. Driehaus filed a criminal complaint against the SBA in October 2012 over what he claimed to be false statements in a campaign advertisement. While he would later ask for that complaint to be dropped, he also sued the SBA for his “loss of livelihood” by “defaming” him by saying he supported taxpayer funded abortion due to his vote for the Affordable Care Act. The SBA won the case. Driehaus deserved to lose the case and, after his criminal complaint, he deserved to lose his office (as do those Ohio legislators who passed this law).

The key Ohio law prohibits certain “false statement[s]” “during the course of any campaign for nomination or election to public office or office of a political party.” Ohio Rev. Code Ann. §3517.21(B) (Lexis 2013). It is a crime for any person to“[m]ake a false statement concerning the voting record of a candidate or public official,” §3517.21(B)(9), or to “[p]ost,publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not.” §3517.21(B)(10). It is a poorly written and poorly conceived law that loosely used the language of New York Times v. Sullivan. It is also a politician’s dream. It can be used against critics and, whether successful or not, can drain the coffers and time of opponents. Not only was SBA forced to bear such costs but the advertising company that owned the billboard space refused to display SBA’s message after Driehaus’ counsel threatened legal action.

We previously discussed the Court ruling two terms ago that even false statements are protected by the First Amendment. Here is a prior column on the issue. Notably, even Justice Alito in dissent agreed that laws proscribing false statements about “matters of public concern” would create a “potential for abuse of power” “simply too great” for the First Amendment to tolerate. Id. at 2564 (Alito, J., dissenting).

Ohio tried to kill the case by denying the SBA any judicial review in a standing challenge. The District Court agreed and threw the case out of court as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds.

Thomas found a credible threat of enforcement of the Ohio law and sufficient standing. Thomas held:

Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. 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.See Babbitt, supra, at 302, n. 13 (In addition to the threat of criminal sanctions, “the prospect of issuance of an administrative cease-and-desist order or a court-ordered injunction against such prohibited conduct provides substantial additional support for the conclusion that appellees’ challenge . . . is justiciable” (citations omitted)).

It is a great victory for standing and potentially a great ruling for free speech. As for Driehaus, he has added ignobility to his earlier defeat in trying to seek criminal penalties against his critics. Unfortunately, Ohio is not unique in such laws and hopefully this decision will lead to additional challenges.

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