Supreme Court

Supreme Court Rules 9-0 for Susan B. Anthony List in Case Arising from Ohio 'False' Speech Law

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Credit: C-Span

The U.S. Supreme Court ruled unanimously today in favor of the conservative anti-abortion group Susan B. Anthony List, allowing the group to proceed with a First Amendment challenge against an Ohio law criminalizing "false" political speech.

The case of Susan B. Anthony List v. Driehaus arose during the 2010 congressional elections when the Susan B. Anthony List (SBA List) announced its intention to oppose the reelection campaign of Rep. Steve Driehaus (D-Ohio) by purchasing billboard and radio ads describing Driehaus' vote for the Patient Protection and Affordable Care Act as tantamount to supporting "tax-payer funded abortion."

In response, Driehaus filed a complaint with the Ohio Elections Commission charging SBA List with seeking to spread political lies about him. Driehaus' lawyer also sent a letter to the billboard company, threatening a similar complaint. The company promptly refused to run the SBA List ads.

In the meantime, SBA List was hauled before the Ohio Elections Commission, which ruled against it on a party-line vote. By this point, with the congressional election impending, SBA List's political speech had been effectively suppressed by the state of Ohio.

So SBA List filed suit in federal court, charging the Ohio speech law with violating its First Amendment rights. In a surprise twist, however, the U.S. Court of Appeals for the 6th Circuit ruled in favor of the state, holding that SBA List did not have standing to file suit because it could not demonstrate "an imminent threat of future prosecution."

Today, by a vote of 9-0, the U.S. Supreme Court overruled that decision and held that Susan B. Anthony List must be allowed its day in federal court. "The threat of future enforcement of the false statement statute is substantial," declared the unanimous majority opinion of Justice Clarence Thomas. What's more, Thomas wrote, "the specter of enforcement is so substantial that the owner of the billboard refused to display SBA's message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from 'imaginary or speculative.'"

The decision in Susan B. Anthony List v. Driehaus is available here.

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  1. SBA List did not have standing to file suit because it could not demonstrate “an imminent threat of future prosecution.”

    Sounds like the courts should adopt a clear doctrine that prohibits the government from doing anything that might tend to suppress speech. Perhaps they could call it “chilling” free speech or something.

    1. It’s like that’s not insanely well-established law. How can you possibly not find standing in that kind of case?

      1. As far as I can tell from the outside, standing seems like one of the dumber concepts in constitutional law. It’s almost as dumb as a picture with no alt-text.

        1. Alt text:

          What’s this on my Coke can?

          1. noyce!

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        2. I tend to agree. It’s a legitimate issue in other kinds of cases, but it makes no sense when it’s THE PEOPLE vs. THE GOVERNMENT.

          1. You lack standing! You lack standing! The whole thread lacks standing!

          2. Yeah, I never got that. If it’s a law, it applies to everyone. Everyone has fucking standing to sue.

        3. Standing is derived from the “case and controversy” clause. It does makes sense to have SOME gatekeeping to the courts otherwise they’d be flooded.

          But standing has been and will continue to be used to beat back legitimate citizen complaints against how government functions. For example, unless you can find someone who was demonstrably injured by the NSA’s illegal actions, the lawsuit will be thrown out. It’s especially maddening when the NSA is likely sitting on the evidence of an actual injury but the plaintiff can’t get past the motion to dismiss to even try to discover it.

          1. Would I have standing if I suffered actual injury to my toe kicking the POS Clapper in the nuts? Lies in, lies out The Clapper. He’s fallen and he can’t get up!

  2. That standing existed should have been known to a “D” 1L student in his first Con Law class. Glad it was 9-0.

    1. Well, mister Drone Memo is now one heart attack and appointment away from sitting on that bench.

      In the long run, the Government will win.

    2. Courts pretend not to notice lots of things that would be obvious to the dimmest 1L when those things contradict the desired result.

      1. This!
        Also, they like refusing to look at decisions from prior to about 1900.

        1. What, that old century?! It’s like, over 100 years old, or something…

          1. Yeah, it’s like pre-Wickard or something. How can we be expected to find in favor of increasing government power if we are forced to follow precedent from way back when the Constitution meant what the Constitution said?

            /The Nazgul

  3. Hey! They got one right!

    Whatever – we’re still dooooooooooooomed.

    Blind skwerlz, nutz, etc.

  4. Heh, heh, Ohio overreached itself by saying the SBA List shouldn’t even have its day in court…now the state suffers a humiliating, unanimous loss.

    Now they’ll have to explain to a lower court how come they have a statute making it a crime to criticize politicians, but not ordinary citizens.

    1. if criticizing politicians is wrong, I don’t wanna be right.

  5. And does the state of Ohio (i.e. the taxpayers) have to reimburse SBA for all its legal costs fighting its denial of standing? I would bet not.

  6. Lessee… companies, acting as persons, can spend unlimited amounts of money, and now, they can lie all they want as well with impunity?

    1. Let’s see…a state can pass a law providing special procedures and penalties to penalize you if you criticize a politician, but not if you criticize a regular citizen?

    2. Persons, acting as persons can say anything they want. Because we have this guide called…

      You know what? Never mind.

    3. Got any more of Harry Reid’s talking points on your desktop.

      BTW, you left out a reference to the Koch Bros.

    4. As far as I know, the laws against slander and libel are still enforceable.

      1. Politicians are *special* and need *special* laws.

    5. Hmm, let’s see…companies are made up of…uh…people?…acting as persons?

    6. companies, acting as persons, can spend unlimited amounts of money, and now, they can lie all they want as well with impunity?

      Yup.

      Just like politicians.

    7. Wayne….You can’t be serious. Are you?

      Is that the way you read this?

      If 50% of people see things this way, we are doomed.

    8. Lessee…people, acting as people, can make unlimited amounts of speech, and now, they can say things I disagree with without breaking the law?

      It’s like these people think speech is some sort of right or something.

  7. In all seriousness, I wouldn’t have been surprised if the SEIU/AFL-CIO etc didn’t file a friend of the court brief on behalf of the anti-abortion group. Can you imagine how fucked unions would be if such a law were to stand?

    1. Only in Blue States.

  8. 9-0. Corrupt leftist establishment shown for what they are.

    Just a little surprised this happened in Ohio. May their bad reputation cause them to rethink their adherence to the Constitution.

  9. I gotta say, I’m loving how consistent the court’s been lately in 1a cases.

    1. As long as top liberal lawyers from Ivy League law schools have Holmes and Brandeis in their jurisprudential spank bank, they will be obliged to follow the free-speech tradition represented by those justices.

      1. How did free speech and free markets ever get divided as an issue? Who was the dickwad that fucked that up for us? It -had- to be pre-wickard.

        1. Holmes and Brandeis are they top suspects.

          Holmes was a Civil War veteran – his bloody war experiences killed off his idealism, and Nietzsche gave him a philosophic framework. Holmes decided that no cause was inherently more just than another, but you still fought for your particular cause and let the strongest one win out. He was of course a leading legal positivist – the law is a series of predictions of what the government will do to you if you take various actions.

          This naturally led him to be cynical about appeals to human rights, economic and otherwise. Then in the wake of World War One, some of his liberal friends got hassled for their dissenting views, so he became convinced of the need for free expression, see

          http://www.amazon.com/Great-Di…..at+dissent

          – but even his free expression opinions were phrased in Nietzschean terms. Political debate, he thought, was just another forum for carrying out the amoral struggle for power, and even if free speech meant Commies would take over then so be it.

          1. Brandeis’ story is a bit better from a prog standpoint. He was an idealist who thought he should oppose both big government *and* big business. This meant leaving room for governments to “experiment” with the economy. But Brandeis was unpopular in many quarters, which probably led him to his affinity for free speech.

            1. Nice comments Notorious…thank you.

        2. How did free speech and free markets ever get divided as an issue? Who was the dickwad that fucked that up for us? It -had- to be pre-wickard.

          This is an excellent book on that very topic.

  10. How anyone could report on this and not also link the awesome PJ O’Rourke amicus brief is just criminal.

    1. That is indeed pure awesome.

  11. On the other hand, if this law is upheld (this decision just says that the case must be heard) lying politicians in Ohio could be punished. That would be interesting.

  12. There’s a way to do laws like this right. Instead of criminalizing false statements in cx with elections, you have the statements submitted to the same board for vetting, and they rule them true or false. You’re still allowed to make the statements even if they’re false, and don’t have to submit them at all, but I think it’d serve the purpose of good elections just to have statements certifiable as true by a neutral and official board.

    1. Yeah, right. Who is going to sit on those boards? The NYT and NPR? Fox? The same politicians you are talking about?

      1. Well, what the heck, you gonna complain that there were people selected to sit on the very case being discussed here? You might as well say nobody should ever get to decide anything, because there’s no way to select who decides. How do questions get decided, then? By a machine?

        It seems absurd to complain about the process used to select people to decide matters of elections, when the people running for office will decide matters if they are elected. Since chain is only as strong as its weakest link, why should the process of determining how a politician is elected be any less democratic than the process of electing them?

        Have you ever sat on a body that elected a temporary chairman & sec’y to hold a vote to elect a permanent chair & sec’y? Like that.

        1. Or…I don’t know….just rely on the constitution. You know, which allows people freedom of speech, above and beyond pretty much everything else.

          1. It allows all sorts of things, but doesn’t get them done by itself! You have freedom of communication, but that alone doesn’t get you any communication, let alone help you distinguish true from false communication.

            What’s wrong with someone’s judging whether a statement is true or false? You’d still be allowed to make it.

            1. “What’s wrong with someone’s judging whether a statement is true or false? You’d still be allowed to make it.”

              Yeah! Like a sort of Ministry of Truth. That’s an awesome idea.

    2. There’s a way to do laws like this right.

      No, there isn’t.

      1. Why not?

        Should nothing ever get decided officially? If anything is ever decided officially, can you think of a reason statements made concerning gov’t elections should not be similarly decided?

        You have a dispute, you get someone impartial to decide it. Why should disputes in the course of elections be any different from all the other things that get decided that way? The candidates can put up the money, if that’s your objection. Someone spends money on putting their names on the ballot, after all.

        1. Do you not realize that 1. the boards would become politicized almost instantly, and 2. free speech would become something that would take ten years in court and $100s of $1000s of dollars to defend on every statement you ever make about the government in power.

          1. So what if the boards, against all precautions, became politicized instantly? How could they ever be more political than the offices the candidates are running for? So if you don’t begrudge the candidates’ running for those offices, why would you begrudge the formation of such an elections-assisting body as this?

            And freedom of speech would not be at issue, because you could still make the statements, whether the board certified them as true or not. It’s just that the board’s decision on that point would be made public.

            1. Newspapers decide whether or not statements are true all the time. Do you really believe they’re neutral? What the fuck is wrong with you that you need someone to tell you whether or not something is true? You don’t even trust your own research?

              1. No, I just don’t have time for it. Practically nobody has time to go check out all the primary sources. Same reason we have reporters at all: We don’t have time to travel into every nook & cranny of the world and see what’s going on 1st hand.

                It would be foolish of anyone to make pronouncements on the truth of things they don’t have the facts about. Like anything else, division of labor: Employ specialists to devote their time & expertise to such things.

        2. “If anything is ever decided officially, can you think of a reason statements made concerning government elections should not be similarly decided?”

          Yeah, the Constitution which allows free speech. It doesn’t say we’ll let the government decide what we can say about the government.

          You must be joking, right?

          1. I’m not joking. Just read carefully what I’m writing, and not what you imagine I wrote. It’s not about what you’d be allowed to say, but whether what you say would be officially stamped T or F by a body which was not owned by any of the campaigns.

            1. So you’re saying you’re not qualified to vote on those issues, so you want those nice government people who know everything to tell you how you should vote on those issues.

              That’s stupid.

        3. ?You have a dispute, you get someone impartial to decide it.?

          The fly in your ointment. How do you arrive at impartiality. We’re talking about partisan politics, partisans would by default sit on your “impartial” board.

          So, do your do it like Congressional committees, where the majority party has at least a one vote edge? If that were the case, the board would routinely come down against the minority party petitioners and for the majority party petitioners on a party-line vote.

          If you construct the board with equal party membership, nothing would ever get decided. You would have constant ties. And who breaks the tie?

          FTA: ?In the meantime, SBA List was hauled before the Ohio Elections Commission, which ruled against it on a party-line vote. By this point, with the congressional election impending, SBA List’s political speech had been effectively suppressed by the state of Ohio.?

          1. Well, how do you arrive at anything impartially? If you just threw up your hands and said forget it, there’d be no courts, judges, juries, arbiters, etc. The fact that there’s never any perfect dispute resolution doesn’t mean there’s no dispute resolution at all!

            You can look at the election itself as a form of dispute resolution too, where the voters are the jury. So why shouldn’t the voters have the assistance of arbiters who themselves would resolve matters of fact that candidates wanted put before them? The arbiters could be funded by filing fees the candidates would enter to contest the election in the 1st place. By not being paid for by any one campaign, but all of them together, they would give the best conceivable institutional guarantee of both interest and impartiality. (It’s hard to get both at the same time!) So they would be at the service of all the campaigns, and any one campaign could submit statements made by or on behalf of their own or opposing candidates.

            1. And who said the board would have to inquire at all as to its members’ party membership? They could be chosen by sortition, civil service, or other non-partisan means. They could even be staffed by persons not even eligible to vote in elections, such as foreigners or felons, so there’d be no question about their partisanship, if it were that big a problem.

              If it became apparent that, despite such precautions, the board was leaning partisan, people would simply stop paying att’n to their determinations.

            2. And if the problem is bias, then you ought not have elections at all, because OMG, voters have prejudices!

              Why do gov’t bodies (legislatures, juries, panels) deliberate at all? They could save a lot of time if everybody just voted their prejudices. Same with committees within political parties. Yet they do deliberate, so someone must be amenable to persuasion, because they’re not about to waste time they could spend more profitably.

              1. And if the problem is bias, then you ought not have elections at all

                You mean when two wolves and a sheep vote on what is for dinner?

  13. One for the good guys!

    1. But? I really worry? Stay up for long sleepless nights? Worrying my pretty head off? SOME un-GAWDly day, some GAWD-forsaken unbelieving heathen will blatantly LIE and say that The Sacred Government Almighty does NOT love us, and NO ONE will be Libertarianly FREE to SUE their lying ASSES off!!!

  14. Short of fomenting violent revolution (and there’s a case to be made against that) or yelling “fire” in a crowded theater, any attempt by the government to interfere with free speech is immoral.

  15. Invest in butt-lube futures. Freedom will be a thing of the past in 30 years and the average citizen will not even KNOW it ever really existed. . . it will be like Unicorns or Gaia.

  16. So was the “lie” that he didn’t actually vote for the ACA, or the belief that the ACA would mandate coverage for abortions after implementation in 4 years?

    My memory is the ACA backers refused to have a prohibition and to get the final vote, President Obama agreed he would issue an executive order blocking the use of federal money for abortions.

  17. “describing Driehaus’ vote for the Patient Protection and Affordable Care Act as tantamount to supporting “tax-payer funded abortion.””

    How is that false anyhow? Doesn’t it allow taxpayer dollars to be used for that purpose?

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