The Supreme Court just handed down its ruling in Susan B. Anthony List v. Driehaus. The vote was 9-0. Here is the opinion.
The issues in the case were:
(1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must 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; and
(2) whether the Sixth Circuit erred 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.
The Sixth Circuit rejected the Plaintiff’s claims. The Supreme Court reversed.
Article III Standing (from Justice Thomas’ opinion)
- “An allegation of future injury may suffice if the threatened injury is ‘certainly impending,” or there is a “‘substantial risk’ that the harm will occur.’”
- “[W]e have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that 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.’”
- “[P]etitioners’ intended future conduct is “arguably. . . proscribed by [the] statute” they wish to challenge. . . . The Ohio false statement law sweeps broadly, . . . and covers the subject matter of petitioners’ intended speech.”
- “SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.”
- “[T]he threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not ‘chimerical.’”
- “We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review.”
- “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.”
Ripeness (from Justice Thomas’ opinion)
- “[W]e need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the ‘fitness’ and ‘hardship’ factors are easily satisfied here. First, petitioners’ challenge to the Ohio false statement statute presents an issue that is “purely legal, and will not be clarified by further factual development.” . . .. And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other.”
Counsel
- Michael A. Carvin for Petitioners
- Eric J. Feigin for United States (amicus curiae)
- Eric E. Murphy for Respondents
Amicus Briefs
Among those filing amicus briefs were the following:
- ACLU (Steven R. Shapiro) for Petitioners
- First Amendment Lawyers Association (Jennifer M. Kinsley ) for Petitioners
- American Booksellers Association, et al (Michael Bamberger) for Petitioners
- Cato Institute & P.J. O’Rourke (Ilya Shapiro) for Petitioners
- Republican National Committee (Michael T. Morley) for Petitioners
- Center for Competitive Politics (Allen Dickerson) for Petitioners
- Student Press Law Center (Adam Charnes) for Petitioner
Court Grants Review in Threats Case
The case is Elonis v. U.S.
The issue raised in the case was:
Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.
Counsel
- John P. Elwood for Petitioner
- Donald Verrilli, Jr. for United States