Susan B. Anthony List v. Driehaus,
573 U.S. ___ (2014)

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Justia Opinion Summary

A former congressman filed a complaint with the Ohio Elections Commission alleging that SBA violated an Ohio law that criminalizes some false statements made during a political campaign. SBA had stated that his vote for the Patient Protection and Affordable Care Act was a vote in favor of “taxpayer funded abortion.” After he lost his re-election bid the complaint was dismissed. SBA pursued a separate challenge on First Amendment grounds. COAST also challenged the law, arguing that it had planned to disseminate a similar message but refrained because of the suit against SBA. The district court consolidated the suits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury to establish standing or ripeness. The Sixth Circuit affirmed. A unanimous Supreme Court reversed and remanded, finding that the plaintiffs alleged a sufficiently imminent injury under Article III. An “injury in fact” must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Challenging a law before enforcement requires alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution.” The plaintiffs alleged a credible threat of enforcement. Their intended future conduct is arguably proscribed by the statute. The statute sweeps broadly; the Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those they plan to make in the future. SBA’s insistence that its previous statements were true did not preclude finding probable cause. The threat of future enforcement is substantial. There is a history of past enforcement; a complaint may be filed by “any person,” not just a prosecutor or agency. Commission proceedings impose a burden on electoral speech. The target of a complaint may be forced to divert significant time and resources in the crucial days before an election. Those proceedings are backed by the additional threat of criminal prosecution. The Court found the “prudential factors” of fitness and hardship “easily satisfied.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

SUSAN B. ANTHONY LIST et al. v. DRIEHAUS et al.

certiorari to the united states court of appeals for the sixth circuit

No. 13–193. Argued April 22, 2014—Decided June 16, 2014

Respondent Driehaus, a former Congressman, filed a complaint with the Ohio Elections Commission alleging that petitioner Susan B. Anthony List (SBA) violated an Ohio law that criminalizes certain false statements made during the course of a political campaign. Specifically, Driehaus alleged that SBA violated the law when it stated that his vote for the Patient Protection and Affordable Care Act (ACA) was a vote in favor of “taxpayer funded abortion.” After Driehaus lost his re-election bid, the complaint was dismissed, but SBA continued to pursue a separate suit in Federal District Court challenging the law on First Amendment grounds. Petitioner Coalition Opposed to Additional Spending and Taxes (COAST) also filed a First Amendment challenge to the Ohio law, alleging that it had planned to disseminate materials presenting a similar message but refrained due to the proceedings against SBA. The District Court consolidated the two lawsuits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds.

Held: Petitioners have alleged a sufficiently imminent injury for Article III purposes. Pp. 7–18.

     (a) To establish Article III standing, a plaintiff must show, inter alia, an “injury in fact,” which must be “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U. S. 555 . When challenging a law prior to its enforcement, a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U. S. 289 . Pp. 7–11.

     (b) Petitioners have alleged a credible threat of enforcement of the Ohio law. Pp. 11–17.

          (1) Petitioners have alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest” by pleading specific statements they intend to make in future election cycles. Pp. 11–12.

          (2) Petitioners’ intended future conduct is also “arguably . . . proscribed by [the] statute.” The Ohio false statement statute sweeps broadly, and a panel of the Ohio Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those petitioners plan to make in the future. Golden v. Zwickler, 394 U. S. 103 , is distinguishable; the threat of prosecution under an electoral leafletting ban in that case was wholly conjectural because the plaintiff’s “sole concern” related to a former Congressman who was unlikely to run for office again. Here, by contrast, petitioners’ speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Nor does SBA’s insistence that its previous statements were true render its fears of enforcement misplaced. After all, that insistence did not prevent the Commission from finding probable cause for a violation the first time. Pp. 12–13.

          (3) Finally, the threat of future enforcement is substantial. There is a history of past enforcement against petitioners. Past enforcement against the same conduct is good evidence that the threat of enforcement is not “ ‘chimerical.’ ” Steffel v. Thompson, 415 U. S. 452 . The credibility of that threat is bolstered by the fact that a complaint may be filed with the State Commission by “any person,” Ohio Rev. Code Ann. §3517.153(A), not just a prosecutor or agency.

     The threatened Commission proceedings are of particular concern because of the burden they impose on electoral speech. Moreover, the target of a complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days before an election. But this Court need not decide whether the threat of Commission proceedings standing alone is sufficient; here, those proceedings are backed by the additional threat of criminal prosecution. Pp. 14–17.

     (c) The Sixth Circuit separately considered two other “prudential factors”: “fitness” and “hardship.” This Court need not resolve the continuing vitality of the prudential ripeness doctrine in this case because those factors are easily satisfied here. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___. Pp. 17–18.

525 Fed. Appx. 415, reversed and remanded.

     Thomas, J., delivered the opinion for a unanimous Court.

Primary Holding

Standing and ripeness requirements are met if plaintiffs intend to engage in conduct that affects a constitutional issue but which is forbidden by a law, and there is a credible threat that the law will be enforced.

Facts

During the 2010 election cycle, Susan B. Anthony List (SBA), a "pro-life advocacy organization," publicly criticized various members of Congress who voted for the Patient Protection and Affordable Care Act (ACA), including then-Congressman Steve Driehaus, stating that these Congress members "voted for a health care bill that includes taxpayer-funded abortion.' SBA also sought to display a billboard in Driehaus’s district with the following message: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.' The advertising company that owned the billboard space refused to display that message, however, after Driehaus’ counsel threatened legal action. Driehaus filed a complaint with the Ohio Elections Commission alleging that SBA violated an Ohio law criminalizing certain false statements made during a political campaign. Driehaus subsequently lost his re-election bid, and the complaint was dismissed. SBA pursued a separate challenge on First Amendment grounds, arguing that its speech had been chilled because "it intend[ed] to engage in substantially similar activity in the future."

Attorneys

  • Christopher P. Finney
  • Curt C. Hartman
  • Robert A. Destro
  • Michael A. Carvin
  • Yaakov M. Roth
  • David R. Langdon
  • Joshua B. Bolinger

Issues & Holdings

Issue: Whether the threat of enforcement of Ohio's false statement statute amounts to an Article III injury in fact.
Holding: Yes, there is a credible threat of enforcement that establishes a justiciable issue.

Issue: Whether petitioners' intended speech is 'arguably proscribed' by the law.
Holding: Yes, as long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio's false statement statute.

Issue: Whether the threat of future enforcement of the false statement statute is substantial as opposed to "imaginary or speculative."
Holding: Yes, administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review.


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