In this commentary, Jeffrey Shulman from Georgetown Law looks at the Susan B. Anthony List case and why the issue of standing is critical in any law that would deter free speech during an election cycle.
If it is true, as Shakespeare’s King Lear learned at great cost, that we must endure our going hence as much as our coming hither, it is equally the case that we must put up with a great deal of unpleasantness in political life. In political speech too, it turns out, sometimes ripeness is all.
Ripeness is a constitutional as well as a philosophical concept, and the meaning and scope of that concept, constitutionally speaking, will be tested by the Supreme Court in Susan B. Anthony List v. Driehaus, which is scheduled for oral argument later this month.
The case presents a challenge to the work of the Ohio Elections Commission (OEC), an independent state agency charged with enforcing the state’s campaign-practices laws. Part of the commission’s mandate is to police false and misleading political statements. This is, as the Sixth Circuit has put it, the commission’s “‘truth-declaring’ function.”
Ohio law prohibits false statements made about political candidates when those statements are made with knowledge or reckless disregard of their falsity. In the lead-up to the 2010 general election, the Susan B. Anthony List (SBA), a pro-life advocacy organization, planned to run advertisements against Representative Steven Driehaus, a Democrat who had voted for the Affordable Care Act (aka Obamacare). One element of SBA’s campaign was to buy billboard space, on which it could spread this message: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”
The planned billboard never appeared. Congressman Driehaus filed a complaint with the OEC, claiming that SBA had violated Ohio’s false-statement statute. He then reached an agreement with the advertising company that owned the billboard: he would not join the advertiser in his OEC complaint provided that the company suspend the posting of billboards for SBA.
By statute, the OEC must determine whether probable cause exists to support a false-statement claim. If a three-member panel finds that probable cause does exist, the matter goes before the full commission. If it finds a violation, the full commission may refer the matter to a prosecutor for possible criminal proceedings. In response to Driehaus’ complaint, a panel of the OEC found probable cause of a violation. Before the full commission reached a decision, SBA filed suit in federal district court against the OEC and Driehaus, seeking injunctive relief from enforcement of the Ohio statute. (The complaint before the OEC was withdrawn by mutual consent.) In return, OEC and Driehaus asserted, among other things, that SBA’s suit was not ripe.
Ripeness is one of a number of doctrines drawn from the Constitution’s Article III provision that federal courts consider only actual cases or controversies. (The Article III limitations, understood as a constitutional limit on judicial power, require courts to reject non-justiciable cases; other court-created doctrines may lead courts to choose to abstain from adjudication for prudential reasons. The gatekeeping doctrine of ripeness has both constitutional and prudential aspects.) The ripeness doctrine, the Supreme Court has said, “is peculiarly a question of timing.” It cautions against premature adjudication of a legal controversy, one that is “anchored in future events that may not occur as anticipated, or at all.”
For obvious reasons, ripeness is of special concern where a complaint is based not on what has happened but on what may happen—and what may happen is of special concern where a complainant challenges a statute before it has been enforced. At first glance, the idea that a litigant may bring such a pre-enforcement challenge may seem odd. Where, after all, is the injury to the plaintiff? But the Supreme Court has long held that “when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not ‘first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.’” One underlying rationale for this doctrine concerns injury that is hard to see: the danger of self-censorship. A speech-chilling statute can effectively inflict this injury even without actual prosecution.
The Court has had the opportunity to decide the validity of pre-enforcement challenges to speech-related statutes on multiple occasions. Complaints have been found to be ripe where a Vietnam war protester was warned to stop handbilling at a shopping center or face the risk of prosecution (Steffel v. Thompson, 1974); where union employees and supporters would have to curtail their consumer appeals in order to avoid possible prosecution under a state unfair labor practice law (Babbitt v. United Farm Workers, 1979); where an attorney and state senator would suffer reputational damage if he had to identify as political propaganda certain films that he wished to show (Meese v. Keene, 1987); where booksellers would face costly measures to comply with a statute prohibiting the display of pornographic materials to minors (Virginia v. American Booksellers Association, 1988). In all of these cases, the Court found that the plaintiffs faced a “threatened or actual injury from the putatively illegal action.”
On the other hand, where a plaintiff could not show a specific threat of injury—say, for example, from the U.S. Army’s political surveillance activity (Laird v. Tatum, 1972)—the Court has stated that more than a “subjective chill” is required to make a case or controversy justiciable. As it has often declared, the Court is not in the business of rendering advisory opinions.
In SBA’s case, the Sixth Circuit held that the OEC’s probable-cause hearing failed to show an imminent threat of prosecution. “A probable-cause determination,” the court said, “is neither a ‘definitive statement of position,’ nor a ‘definitive ruling or regulation, that establishes an imminent enforcement threat.’” For the court, there were just too many links in the chain of events—a complaint, a finding of probable cause, a determination that a violation had occurred, a decision to recommend prosecution—that would have to occur before actual prosecution. As for the rejected billboard, it was considered irrelevant because the commission “had no role in this failed transaction.”
What is more, the Court noted that “SBA List does not say that it plans to lie or recklessly disregard the veracity of its speech. Instead, it alleges the very opposite, insisting that the statement it made and plans to repeat—that the [Affordable Care] Act allows for taxpayer-funded abortions—is factually true.” Since SBA could be liable only for false statements, this makes the risk of prosecution—at least according to the logic of the Sixth Circuit—“exceedingly slim.”
There is a good measure of willful blindness in this reasoning. The circuit court failed to give due consideration to the burden placed on SBA by each link in the pre-prosecution chain. The first several links are hardly speculative. There will an election; it is not unlikely that there will be a pro-Obamacare candidate; SBA will make the same statements; and the OEC has shown that it is ready to find probable cause of a false-statement violation. For SBA, as for any speaker, even this preliminary determination will mean hiring a lawyer and responding to (perhaps extensive) discovery requests. The deterrent effect of the initial probable cause inquiry/finding, that is to say, is concrete and significant. Indeed, the mere threat of subjection to the process can be used to intimidate others from carrying SBA’s message—as was, in fact, the case.
And how absurd would it be to require SBA to announce that it will make a false statement in order to prove that it had not made a false statement? This is a downright silly argument. All that SBA should have to show is that it plans to speak in a way that is likely to be construed as a violation of the state’s false statement act.
In the free speech context, the Supreme Court has long looked at standing requirements with a liberal eye. For good reason, the barrier to pre-enforcement challenges is not a high one. In the political speech context, a generous approach to judicial access is in part the product of a healthy skepticism toward the “truth-declaring function” of the state. At bottom, it is rooted in the Jeffersonian belief that,
“Truth will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them”(my emphasis).
With Susan B. Anthony List v. Driehaus on its docket and with a new election on the horizon, the Court should affirm this legacy of constitutional skepticism. The time, we might say, is ripe.
Jeffrey Shulman teaches at Georgetown Law. His latest book, ” The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child” is from Yale University Press.