Quick Hits from the SBA List Oral Argument

Today the U.S. Supreme Court heard Susan B. Anthony List v. Driehaus, a case challenging Ohio’s false statements law. Here are the questions presented by the case, as stated in the petition to the Court:

I. To challenge a speech-suppressive law, must a party whose speech is arguably proscribed prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold?

II. Did the Sixth Circuit err by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree?

Reading the transcript, the case seemed to go very well for Susan B. Anthony List and the First Amendment. It could be a lopsided or even unanimous opinion, and one we hope will make it easier to challenge political speech restrictions.

Here are a some highlights from the oral argument:

Michael Carvin on behalf of Susan B. Anthony List (on the Catch-22 standard by the Appeals court):

“Before the campaign it will be premature. During the enforcement proceeding, Federal courts have to abstain under Younger. And afterwards, it’ll be deemed moot, and then no possibility of capable of repetition yet evading review. So you have this regime which has existed for decades in Ohio, where they continue to impose very serious burdens on speakers on what we consider a facially unconstitutional law, yet it has consistently evaded judicial review precisely because of the short time frames of the election.”

“…[the Appeals Court] put us in this Catch-22 endless cycle of suppressing speech, deterring speech, chilling speech, but never being able to get to a court to adjudicate our First Amendment [rights]”

“JUSTICE SCALIA:  You’re not asking us to resolve the constitutional question, just the question of whether you can raise the Constitutional question].”

Eric J. Feigin,  Assistant to the Solicitor General, is arguing, and it triggers a response from Roberts:

“CHIEF JUSTICE ROBERTS:  Is that a realistic proposition? I mean, first of all, in the first place, surely you don’t expect them to come in and say, I’m going to say something totally false and I’m afraid I might be prosecuted for that. But then you have to say they have ­­ you would never imagine that somebody else might think in a hotly contested election that their speech is false?”

“CHIEF JUSTICE ROBERTS:  How many proceedings have been brought under this Ohio statute?”

“MR. FEIGIN:  So under the Ohio statute  between 2001 and 2010, according to the statistics in the green brief by the Ohio Attorney General, it’s a little bit over 500. And that’s just for violations of this False­ Statement Law or asserted violations of this False­ Statement Law.”

When Ohio is defending the law:

“JUSTICE SCALIA:  Well, but the criminal prosecution isn’t all that they’re complaining about. They’re complaining about having ­­ having to be dragged through this same ­­ this same proceeding next time in the midst of an election campaign, and however minimal the finding that is ultimately made may be, they are going to be subject, for sure, to that proceeding in the next election campaign. And I don’t care if all the commission says is, you know, there is some reason to believe that they were lying. Even if it’s that minimal, you are forcing them, and it is pretty sure that it’s going to happen because somebody will complain, the candidate they are criticizing, you are forcing them to go through this procedure in the midst of an election campaign, right?”

“JUSTICE KENNEDY:  Well, but this is a point brought up by Justice Scalia’s question as well. Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”

“JUSTICE BREYER:  Why can’t a person say, you know, there are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them. And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm. Right? So why isn’t that end of the matter?”

“MR. MURPHY:  Well, the Court ­­ has repeatedly said that chilling effect by itself is not the harm. The relevant harm in your hypo would be” ­­

“JUSTICE BREYER:  Why shouldn’t it be the harm? That is, whatever ­­ has any case said when somebody says, you want to speak in a campaign, and we have a law here that if you do we will throw you in jail and you really do want to speak and the law really does prevent you from speaking, why shouldn’t that be the end of it?”

“MR. MURPHY:  Well, remember the test has to be a credible threat of prosecution. What the Court”

“JUSTICE BREYER:  Well, I’m saying is there a statute ­­ not a statute. Is there a case which says the little syllogism I just went through is not the law of the United States? Now, there may be. That’s why I asked the question.”

“JUSTICE GINSBURG:  Mr. Murphy, you said there was no credible threat of prosecution, but what about the harm that is occurring? Mr. Carvin said it’s a very short time. They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement. And that just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right? That’s not.”

“JUSTICE KAGAN:  Well, I’m not sure it’s a reputational harm. I mean, why isn’t, as Justice Ginsburg suggested, the relevant harm the probable cause determination itself? There are voters out there and they don’t know that probable cause is such a low bar as you describe it. They think probable cause means you probably lied, and that seems a reasonable thing for them to think and that’s a relevant harm and we should just ­­ you know, we don’t even need the prosecution to serve as the relevant harm. That seems quite enough.”

“CHIEF JUSTICE ROBERTS:  ­­ I’m not going to let you put your sign up on my billboard, I might be liable. So, I mean, they may have a certain fortitude and proceeding based on all the reasons that you’ve given, but they need third parties to help carry out their message and there is no reason to think those third parties have any commitment to their political message at all and the slightest whiff of, oh, this is going to be legal trouble, they say, forget about it.”

“CHIEF JUSTICE ROBERTS:  Well, no, but a defamation action, people sue everybody all the time. No one’s going to take that seriously.  In fact, it’s probably going to redound to the benefit of SBA and COAST to say the congressman is, you know, bringing a defamation action. It highlights it, but it’s another thing to have the State involved making a determination that there’s probable cause that you lied.”

“JUSTICE SCALIA:  The mere fact that a private individual can chill somebody’s speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it. That’s not ­­ the law.”

“JUSTICE KENNEDY:  There’s a curious inversion here. Usually we’re concerned about citizen suits, too many people can challenge ­­ the law. Here we’re concerned that many, many citizens can bring the challenge against the candidate. So it’s somewhat reversed. In other words, you have tens of thousands of private attorney generals waiting to pounce and get these people before the commission and have to follow discovery orders.”

“JUSTICE ALITO …… So you have a system that goes on and on, year after year, where arguably there’s a great chilling of ­­ of core First Amendment speech, and yet you’re saying that basically you can’t get into Federal court.”

Kagan follows up:

“JUSTICE KAGAN:  Well, but why wouldn’t it get into Federal court?  I mean, your own office expresses grave concern about the constitutionality of this statute. So that suggests somebody should be able to get into Federal court to do this. But I don’t see a way where you would allow a pre­-enforcement challenge. One would have to go through the entire process and get to the end of it and get a judgment to enable a challenge under your theory; is that right?”

Carvin reserved some of his time and summed up:

“MR. CARVIN:  A few brief points. I think the key point to take away from the colloquy with Mr. Murphy is that when he was asked, How do you bring a pre­-enforcement challenge, his only solution was to admit you’re lying before you speak. Well, obviously that completely defeats the value of your speech. No speaker is ever going to do it. You’re not going to confess to a crime before you speak.”

“If the Court would just look at them, Browskins and Citizens United, those cases articulate as well as any can, when you are making a facial challenge to a First Amendment, the last thing you want to do is abstain to State court judges because you actually exacerbate the constitutional injury through the delay and the fact that you’ve got to go through declaratory judgments, when our entire point is it’s unconstitutional for us to say, “Mother, may I?” before we speak.”

“So we’re facing a credible threat. We ask the Court to lift this yoke so that we can become full participants in the next election cycle.”