In the space below, I offer analysis of a campaign regulation case in which the U.S. Supreme Court heard oral arguments this week, Susan B. Anthony List v. Driehaus. The case involves a challenge brought by a pro-life organization, the Susan B. Anthony List (SBA List), against an Ohio statute that imposes criminal liability on persons or organizations that make “a false statement concerning a candidate [for any public office] knowing the same to be false or with reckless disregard of whether it is false or not, if the statement is designed to promote the election, nomination or defeat of the candidate.” The lower appellate court in the case, the United States Court of Appeals for the Sixth Circuit, held that SBA List did not present a “ripe” controversy concerning the constitutionality of the statute, and thus dismissed the lawsuit for lack of jurisdiction. The Supreme Court will likely focus its ruling on the “ripeness” question as well, but—as I will explain below—questions of standing and ripeness are often tied up in complicated ways with the substantive question of whether a plaintiff has a winning constitutional claim on the merits.
How the Ohio Law Works and the Lower Court’s Rejection of SBA List’s Challenge
A little background on the way the Ohio statute operates is necessary to understand the issues before the Court. Under the Ohio law, if someone—anyone—complains that somebody has made a false statement within the meaning of the statute during an election campaign, a panel of the Ohio Elections Commission (an independent agency charged with implementing the State’s campaign regulations) must make a prompt, preliminary determination of whether there is “probable cause” (i.e., some reasonable possibility but not necessarily a 50+% likelihood) to think that a statutory violation has occurred. If no probable cause is found, the Commission takes no further action. But if a panel concludes that probable cause exists, the case is referred to the full Commission, which then is charged with determining whether “clear and convincing” evidence supports the conclusion that a violation has in fact occurred. If it so finds, the Commission refers the case to the state prosecutors, who then have ordinary prosecutorial discretion (possibly overseen by the State Attorney General) to initiate a prosecution or not. If a prosecution is brought and a conviction (presumably requiring proof of guilt beyond a reasonable doubt) is obtained, a penalty (in the form of a fine or jail time) is imposed.
In the 2010 election cycle, SBA List sought to put up a billboard criticizing then-Congressman Steven Driehaus, who was running for reelection. The billboard read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Driehaus filed a complaint with the Ohio Commission, and a panel of the Commission found probable cause to suspect a violation of the statute and thus referred the Complaint to the full Commission. SBA List then filed suit in federal court challenging the Ohio scheme. After Driehaus lost the election, he withdrew his Commission complaint, so the full Commission never assessed the billboard message, and nothing involving this incident was ever referred to a prosecutor. But SBA List continued to press its federal lawsuit, asserting that it intended to engage in substantially similar conduct in the future and that Driehaus may run for Congress again. Driehaus then moved to Africa to work for the Peace Corps, and has not indicated any present intention to run for office again anytime soon.
Based on this record, the Sixth Circuit ruled that SBA List no longer has a ripe claim against the Ohio statute, for two reasons. First, there is insufficient reason to think that anyone will complain about SBA List under the statute in the future. As the Sixth Circuit put it, “SBA List does not say that it plans to lie or recklessly disregard the veracity of speech. Instead, it alleges the very opposite, insisting that the statement it made and plans to repeat—that [Obamacare] allows for taxpayer-funded abortions—is facially true.” Because SBA List plans to speak only the truth, reasoned the Sixth Circuit, it hasn’t shown that it is particularly likely to get ensnared by a statute regulating falsity.
Second, even if the Ohio statute is likely to be invoked against SBA List again, no criminal prosecution—let alone conviction—is sufficiently likely to ensue. Given all the steps that must precede conviction, it is simply too speculative to think that SBA List is in any real danger of having criminal sanctions imposed upon it.
What Will the Supreme Court Do?
While it is likely we cannot know the outcome of this case for a few months, a few observations are in order even now. Most important, the Supreme Court will probably reverse the Sixth Circuit. I say this in part because the Sixth Circuit’s reasoning is open to serious question, and more so because the Court decided to grant review in the first place. The Sixth Circuit’s opinion is unpublished, which means it can do no mischief in other lower court cases, yet still the Court granted review. To me that suggests a strong desire (by at least four Justices—the number needed to grant review) to correct error by the Sixth Circuit.
Why do I find the Sixth Circuit’s reasoning troubling? Let us take the Sixth Circuit’s first point, that SBA List is unlikely to be burdened by the Ohio law because SBA List disclaims any intent to lie. As Chief Justice Roberts sarcastically observed at oral argument: “[S]urely 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.” To put the Chief Justice’s point more generally, a person challenging a statute for unconstitutionally restricting his speech should be able to do so provided he professes a specific intent to engage in speech that is reasonably likely to trigger punishment, regardless of whether punishment is actually warranted under (one interpretation of) the terms of the statute.
The second rationale of the Sixth Circuit—that criminal sanction is a remote possibility because of the number of steps involved—is on firmer ground, and is actually supported by the reasoning of recent ripeness cases by the Court such as Clapper v. Amnesty International USA (although I acknowledge that the 5-4 ruling in Clapper itself is in some tension with other cases, where the fact that there are multiple steps in a causal chain leading to enforcement is found not to be an insurmountable barrier to federal judicial review). But in any event, this “remote possibility of actual prosecution” argument it is undercut significantly by SBA List’s assertion in its briefs that a probable cause determination by a panel of the Commission, all by itself, inflicts injury, whether or not any criminal prosecution is later brought. By making the probable cause finding, the government causes SBA List to suffer reputational injury, and harms the campaign that SBA List may be waging in favor of or against particular candidates. Because, SBA List argues, a probable cause determination was found with respect to the Driehaus billboard, it will also likely be found with respect to “substantially similar” speech that SBA List intends to utter. This kind of injury is cognizable and may indeed be ripe (as the Court seemed to suggest in Meese v. Keane), but as I will explain later, it raises its own complexities.
What Should the Court Do?
I suggested above that I expect the Court to reverse the Sixth Circuit. But is that the right result? Perhaps not. Though the Sixth Circuit’s reasoning was flawed, its result may nonetheless have been correct. Even assuming that a probable cause determination by a panel of the Commission can cause injury that may be redressed in a federal lawsuit, there remains the question of precisely what speech SBA List plans to utter that might trigger such a determination. As the lawyer for Ohio pointed out at oral argument, the only forward-looking contention in SBA List’s complaint is its statement that “it plans to engage in substantially similar activity in the future, but they don’t identify any other candidates” whom they intend to criticize. If this is true, the vagueness of this statement should be a problem for SBA List. In past cases, the Supreme Court has said a generally stated intention to engage in some activity, without more details about the when, where, and how, can create ripeness problems. So, when a scientist who wanted to challenge under-enforcement of the Endangered Species Act contended that he desired to study a species that might be threatened by the under-enforcement, without indicating precisely where, when, and how he planned to conduct the study, standing/ripeness was denied (in Lujan v. Defenders of Wildlife). And when a leafletter who was punished for distributing anonymous leaflets criticizing a Congressman sued to enjoin future enforcement of the law because he intended in subsequent elections to distribute in the same place “similar anonymous leaflets” even though the particular Congressman who was the target of the prior leaflet had since left Congress for a judicial post, the Court said (in Golden v. Zwickler) there was not a ripe controversy because the likelihood of a future conflict between the leafletter and the statute was too uncertain.
To me, the facts of these cases—and the plaintiffs’ vague statements of future intentions—sound somewhat like SBA List’s assertions regarding “substantially similar” speech in which it plans to engage. What, precisely, does “substantially similar” mean, especially in a setting where SBA List in 2010 did not criticize all Congresspersons who voted for Obamacare in 2010, but rather (as Ohio’s lawyer pointed out in oral argument) only a small subset of them—Democrats who first opposed but then voted for the healthcare law? Since Mr. Driehaus himself is not running again anytime soon, it remains to be identified against whom SBA List plans to speak out.
I found it interesting that the Justices didn’t seem to focus on these points when the Ohio lawyer mentioned them. The liberal Justices generally don’t agree with high standing and ripeness hurdles, so they can be expected to be open to SBA List’s arguments. But the conservative Justices—who in other cases do set the standing/ripeness bar pretty high—should have been interested in this line of argument advanced by Ohio’s counsel. Maybe when the opinion issues they will embrace this route, or maybe they will find ripeness because they are so troubled by the Ohio law and want to permit the federal courts to adjudicate its merits.
A Few Observations on the Merits
Let us turn, then, to the merits, although any remotely complete discussion of the First Amendment claims here will require one or more additional columns. For starters, it is somewhat troubling to me that a panel of the Commission found probable cause to think a billboard stating that Congressman Driehaus voted for taxpayer-funded abortions was false. Incomplete, no doubt. Misleading, perhaps. But factually false? Even granting that executive regulations under Obamacare (and the Hyde Amendment law that may or may not apply to the Affordable Care Act) limit taxpayer-funded abortions to those involving rape, incest, or life of the mother, it’s hard to say the law (for which Driehaus voted) does not, technically, involve some (albeit very limited) taxpayer-funded abortion procedures. And the concept of criminal falsity, to have any chance of surviving a First Amendment challenge in an election contest, will have to be assessed technically.
I should conclude by linking the ripeness and First Amendment merits questions. It may be that SBA List’s best argument for ripeness focuses on the injury caused not by (somewhat speculative) prosecution, but by the specter of a probable cause determination, as discussed above. But if this is so, then—when the case is remanded to the Sixth Circuit—arguably the only ripe question is whether the probable cause aspect of Ohio’s law (rather than the imposition of criminal sanctions themselves) violates the Constitution. And although an argument on the merits can be made that a state Commission’s power to make a probable cause finding in a campaign-speech setting is itself problematic under the First Amendment, that seems a somewhat tougher argument than one challenging the imposition of criminal liability (because if the government is not imposing fines or jail terms, but only uttering its own view that someone’s speech is or may be false, the government can claim to be more of a speaker itself). In other words, if the relevant injury is not the (real) threat of criminal liability, but the reputational harm caused by a government’s (preliminary) characterization of possible falsehood, then the First Amendment challenge is itself harder to maintain. I will likely explore more of these merits questions in later columns.