Susan B. Anthony List v. Driehaus Decided

The Supreme Court has handed down its decision in Susan B. Anthony List v. Driehaus, a closely watched campaign speech case out of the Sixth Circuit.  Justice Thomas wrote the opinion for a unanimous Court. Said Justice Thomas in part:

Petitioners in this case seek to challenge an Ohio statute that prohibits certain “false statements” during thecourse of a political campaign. The question in this caseis whether their preenforcement challenge to that law is justiciable—and in particular, whether they have alleged asufficiently imminent injury for the purposes of Article III. We conclude that they have….The Ohio statute at issue 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). As relevant here, the statute makes it 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)….

One recurring issue in our cases is determining whenthe threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, anactual arrest, prosecution, or other enforcement action isnot a prerequisite to challenging the law. See Steffel v. Thompson, 415 U. S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest orprosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); see also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 128–129 (2007) (“[W]here threatened action by governmentis concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat”). Instead, we have permitted preenforcement review under circumstances that render the threatened enforcement threat”).  Specifically, we have held that a plaintiff satisfies the injury-in-fact threat”) 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.” …Several of our cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent withArticle III.

In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him. We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling… .

Two other cases bear mention. In Virginia v. American Booksellers Assn. Inc., 484 U. S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to “‘knowingly display for commercial purpose’” material that is “‘harmful to juveniles’” asdefined by the statute. Id., at 386. At trial, the booksellers introduced 16 books they believed were covered by the statute and testified that costly compliance measures would be necessary to avoid prosecution for displaying such books. Just as in Babbitt and Steffel, we determined that the “pre-enforcement nature” of the suit was not “troubl[ing]” because the plaintiffs had “alleged an actual and well-founded fear that the law will be enforced against them.” 484 U. S., at 393. 

Finally, in Holder v. Humanitarian Law Project, 561
U. S. 1 (2010), we considered a preenforcement challenge to a law that criminalized “‘knowingly provid[ing] material support or resources to a foreign terrorist organization.’” Id., at 8. The plaintiffs claimed that they had provided support to groups designated as terrorist organizations prior to

similar support in the future. The Government had charged 150 persons with violating the law and declined todisavow prosecution if the plaintiffs resumed their support of the designated organizations. We held that the claims were justiciable: The plaintiffs faced a “‘credible threat’” of enforcement and “‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” Id., at 15.
IV

First, petitioners have alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Ibid. Both petitioners have pleaded specific statements they intend to make in future election cycles.SBA has already stated that representatives who voted forthe ACA supported “taxpayer-funded abortion,” and it hasalleged an “inten[t] to engage in substantially similar activity in the future.” App. 49–50, 122. See also Humanitarian Law Project, supra, at 15–16 (observing that plaintiffs had previously provided support to groups designated as terrorist organizations and alleged they “would providesimilar support [to the same terrorist organizations] againif the statute’s allegedly unconstitutional bar were lifted”).COAST has alleged that it previously intended to disseminate materials criticizing a vote for the ACA as a vote “to fund abortions with tax dollars,” and that it “desires to make the same or similar statements about other federal candidates who voted for [the ACA].” App. 146, 149, 162.Because petitioners’ intended future conduct concerns

political speech, it is certainly “affected with a constitutional interest.” Babbitt, supra, at 298; see also Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971) (“[T]he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office”).
B Next, petitioners’ intended future conduct is “arguably. . . proscribed by [the] statute” they wish to challenge. Babbitt, supra, at 298. The Ohio false statement law sweeps broadly, see supra, at 1–2, and n. 1., and covers the subject matter of petitioners’ intended speech. Both SBA and COAST have alleged an intent to “[m]ake” statements “concerning the voting record of a candidate orpublic official,” §3517.21(B)(9), and to “disseminate” statements “concerning a candidate . . . to promote theelection, nomination, or defeat of the candidate,” §3517.21(B)(10). And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported “taxpayer-funded abortion”—the same sort of statementpetitioners plan to disseminate in the future. Under these

“taxpayer-funded abortion”—the same sort of statementpetitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners’ intended speech is “arguably proscribed” by the law. Respondents incorrectly rely on Golden v. Zwickler, 394
U. S. 103 (1969). In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particularCongressman who had since left office. Id., at 104–106, and n. 2. The Court dismissed the plaintiff ’s challenge tothe electoral leafletting ban as nonjusticiable because his“sole concern was literature relating to the Congressmanand his record,” and “it was most unlikely that the Congressman would again be a candidate.” Id., at 109 (emphasis added). Under those circumstances, any threat of