Freedom of Speech and Association

SBA List v. Driehaus (2014)


  • May 17 2018

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Issue
Whether states can proscribe political advertisements from non-profit political advocacy groups if they determine that such advertisements are false.

Facts
In the 2010 congressional race, Susan B. Anthony List SBA List, a pro-life, non-profit political advocacy group, purchased pro-life billboard advertisement space criticizing U.S. Representative Steve Driehaus of Ohio, who had voted in favor of Obamacare. The group argued that Obamacare provided public funds for abortion, a position similarly held by hundreds of congressmen and others. Opponents, however, including Driehaus, argued that Obamacare did not fund abortions.

In response to SBA List’s efforts to criticize him politically, Driehaus threatened legal action against the billboard company, which then canceled the SBA advertisement, and he filed a complaint with the Ohio Election Commission OEC, arguing that the claims in the tentative advertisement were false and in violation of two of Ohio’s “false statement” laws and a disclaimer statute. After an OEC panel approved a full-commission hearing, SBA List filed a lawsuit in federal court seeking an injunction against the OEC.

During the election, another group—the Coalition Opposed to Additional Spending and Taxes COAST—had refrained from disseminating e-mails very similar to the SBA advertisement. The e-mails were critical of the OEC commission as well. COAST charged that the SBA hearings and false statement laws “chilled” its free speech rights, and it sued in the same district court. The court combined COAST’s and SBA’s cases. COAST claimed it forwent sending the political e-mails out of fear of OEC review. It also claimed to be refraining from sending out other e-mails critical of other candidates in local elections, again out of fear of being brought before the commission.

The the district court quoted the plaintiffs’ issue: “[We are not] arguing for a right to lie. We’re arguing that we have a right not to have the truth of our political statements be judged by the Government.”

The Court Below
The United States District Court for the Southern District of Ohio examined the SBA and COAST complaints against the false statement laws. It found that neither COAST nor SBA had suffered “injury-in-fact,” and that therefore the parties lacked standing and had asserted no claims that were ripe for adjudication. It did not address the substantive issues and instead dismissed the complaints. See the opinion here:

SBA List v. Driehaus, 805 F. Supp. 2d 412 S.D. Ohio, 2011

SBA List appealed to the U.S. Court of Appeals for the Sixth Circuit, which affirmed the lower court’s decision to dismiss SBA and COAST’s suits. See the opinion here:

SBA List and COAST v. Driehaus, 525 Fed.Appx. 415, Nos. 11-3894/3925 6th Cir., 2013

SBA List then petitioned the Supreme Court for review, which overturned the lower court decisions and sent the case back down to the lower courts so that SBA List could pursue its suit against the Ohio false statement laws. See the opinion here:

SBA List v. Driehaus, 134 S.Ct. 2334   2014

The district court then re-heard the case on the merits, striking down as unconstitutional Ohio’s false-statement laws. See the opinion here:

SBA List v. Ohio Elections Commission, 45 F.Supp.3d 765 S.D. Ohio, 2014

The Sixth Circuit then affirmed the lower court ruling. See the opinion here:

SBA List v. Driehaus, 814 F.3d 466 6th Cir., 2016

Questions before the Supreme Court

  1. To challenge a speech-suppressive law, must a party whose speech is arguably proscribed 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?
  2. Did the Sixth Circuit err 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?

CCJ filed an amicus curiae brief in support of SBA List.

Summary:
Representative Driehaus’s threat of legal action against the billboard company under Ohio’s “false statements” statute acted as a restraint on SBA List’s political speech. The Court has long recognized that such “prior restraint” on speech is “the most serious and least tolerable infringement on First Amendment rights.” This law is particularly troubling because it prevents people from criticizing the official actions of elected representatives, contrary to one of the original purposes of the First Amendment. As James Madison noted during the House debate over the proposed Bill of Rights, for example, “[t]he right of freedom of speech is secured; … the people may therefore publicly address their representatives, may privately advise them, or declare their sentiment by petition to the whole body; in all these ways they may communicate their will.”

The very existence of false statement laws chills constitutionally protected speech. Even without Driehaus’s complaint against SBA List, the law is a deterrent to critics who may fear prosecution. Moreover, even if SBA List’s speech were false—and arguably it was true—the First Amendment protects it unless there are compelling circumstances that might outweigh such speech protections. Such circumstances are absent in this case, which is based simply on a group exercising its right to criticize the voting record of a public official. Allowing an agency of government to determine the truth or falsity of such advertisements is wholly at odds with our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Ohio’s so-called “false statement” laws cannot be reconciled with the First Amendment’s protection of core political speech, and such state laws are unconstitutional via the 14th Amendment, which prohibits such state action. The 6th Circuit decision should be reversed and the statute should be declared unconstitutional.

Final Outcome
The Supreme Court unanimously agreed with CCJ and reversed the lower court judgments and remanded back to the lower courts to allow SBA List and COAST to pursue the substantive issue of protecting the right of free speech in political advertising. After the Supreme Court ruling, SBA challenged the constitutionality of the false statement laws and won in both the district and circuit courts. The lower courts ruled the false statement laws are unconstitutional in violation of the First and 14th Amendments.