A Welcome Decision in SBA List v. Driehaus

By Allen Dickerson and Zac Morgan

It may not be this Term’s flashiest political speech decision, but today’s unanimous Supreme Court decision in Susan B. Anthony List v. Driehaus is certainly a welcome ruling. While the case did not directly decide the constitutionality of Ohio’s “truth in politics” statute, it paves the way for a swift, efficient resolution of this, and future, First Amendment cases.

Ohio’s truth in politics law is probably unconstitutional. “Any person” may file a complaint claiming that any given political statement is a lie. A state agency, the Ohio Elections Commission, composed of partisan officials, determines whether to find “probable cause” that the statement is indeed untrue. Then, the complainant gets to conduct an invasive investigation—depositions, electronic discovery, interrogatories. Suddenly, a member of Congress, for example, backed by the enforcement powers of the state, has a free pass to tear apart his political foes. If, after an investigation, the full Commission finds a violation, it refers the case to a prosecutor for trial. This is not exactly a statute that hews closely to the constitutional command that governments “make no law…abridging the freedom of speech.”

In this case, Susan B. Anthony (SBA) List is a pro-life organization. After Congressman Steven Driehaus voted in favor of the Patient Protection and Affordable Care Act, SBA List announced it would run an advertising campaign informing voters that Driehaus voted to publicly fund abortions. The veracity of this statement—like many assertions about the administrative state—is a complex matter of some dispute, but suffice it to say that some consider it objectively true.

Rather than accepting that tough ads are part of politics or addressing SBA List’s view of how the Affordable Care Act works, Mr. Driehaus sought to silence SBA List. He threatened legal action against a private billboard owner who had been willing to rent space for SBA List’s message, and he filed a complaint under Ohio’s “truth in politics” law. Another, unrelated, advocacy group declined to run similar ads against Mr. Driehaus for fear of being hauled before the Ohio Elections Commission.

As for discovery: Congressman Driehaus demanded depositions of three SBA employees, employees of outside groups, and demanded to view “SBA’s communications with allied organizations, political party committees, and Members of Congress and their staffs.” Slip. Op. at 4. SBA List responded by filing a case in federal court asserting the unconstitutionality of Ohio’s law. After the election, which he still managed to lose, Mr. Driehaus withdrew his complaint and moved to Africa to work for the Peace Corps.

And this is where things get (for civil procedure aficionados, at least) interesting. Even though a state agency had found SBA List to likely be untruthful, and even though SBA List wanted to run ads about other Ohio elected officials in favor of “taxpayer-funded abortion,” the Sixth Circuit Court of Appeals ruled that SBA List couldn’t even challenge the law, because Driehaus had withdrawn his complaint. To sue, and ensure that it would not be hauled before the Commission in the future, the Sixth Circuit ruled that SBA List would have to wait for another opportunity to go through the entire process again (and, having dealt with discovery and legal fees, hope that this next complaint, or those to come thereafter, was not also withdrawn).

SBA List, properly outraged, appealed to the Supreme Court, which is how we got this morning’s unanimous Supreme Court opinion.

Under longstanding judicial precedent, plaintiffs can sue before they violate a law if they “allege[] a credible threat of enforcement.” Slip. Op. at 9. This is particularly true in First Amendment cases—forcing a plaintiff to speak and accept sanction under an unconstitutional law is an onerous burden. Most people will simply decline to speak, which is precisely the opposite of the First Amendment’s purpose. See Whitney v. California, 274 U.S. 357, 377 (Brandeis, J., concurring) (“[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”).

It is worth noting that the Court’s opinion today was unanimous. The nine justices—whom, if the McCutcheon decision taught us anything, have strikingly different views of the First Amendment—all want to ensure that states do not limit fundamental rights and then functionally shut the door on judicial review of the offending laws. As Chief Justice Roberts wrote in his opinion in FEC v. Wisconsin Right to Life, procedural roadblocks themselves “constitute[] a severe burden on political speech.” 551 U.S. 447, 468 n. 5 (2007).

The result is particularly welcome in this case, where the law can simply become a partisan political tool. When Congressman Driehaus filed his complaint, he was invoking his rights as an Ohioan—and “‘the Commission has no system for weeding out frivolous complaints.’” Slip. Op. at 14 (quoting amicus brief of Mike DeWine, Attorney General of Ohio at 6). “Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents.” Id., citing to DeWine Br. at 8. Given such potential gamesmanship, the unanimous Court decided that SBA List needed its day in court now, not later.

We at CCP will watch the rest of SBA List’s case with great interest, and hope that this litigation will (finally) conclude with a victory for the First Amendment. It is already a victory for the rule of law.

The Center for Competitive Politics is now the Institute for Free Speech.