False Statements About Politics, Free Speech, and SCOTUS

   Next week SCOTUS will hear argument in Susan B. Anthony List v. Driehaus.  Ohio, along with a number of other states, makes it a crime to in any way "disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or  not, if the statement is designed to promote the election, nomination, or defeat of the candidate."  SBA planned to erect billboards claiming that incumbent Rep. Driehaus had voted for taxpayer-funded abortions.  Driehaus said it was false; SBA said it was true because Driehaus had voted for the Affordable Care Act.  The ACA permits funding of abortions by a labyrinthine method that enabled Driehaus to claim that he hadn't voted for taxpayer-funded abortions, but which SBA said was "a mere accounting gimmick," given the fungibility of money.  Driehaus complained to the Ohio Elections Commission, which has jurisdiction to enforce the Ohio law, and the OEC found probable cause that SBA had violated the law.  Meanwhile, the billboard never went up because the billboard owner refused to post it after being threatened with suit by Driehaus's lawyer.  After Driehaus lost the election, he withdrew his complaint. But while the complaint was pending, SBA filed suit in federal court, challenging the validity of the Ohio law.  The district court invoked Younger abstention and stayed the case.  After Driehaus withdrew his complaint the stay was lifted, SBA amended its complaint to state its intent to make similar such allegations in the future, Driehaus counterclaimed for defamation, and the the court dismissed SBA's suit because its injury was "far too attenuated." SBA's speech wasn't chilled because future prosecution was speculative.  The Sixth Circuit upheld the dismissal of SBA's suit as well as the district court's denial of Driehaus's summary judgment motion, reasoning that an imminent threat of future prosecution can't be based on past prosecution and the chilled speech that results.  

    In the background is United States v. Alvarez.  There, the Court struck down the Stolen Valor Act, which made it a crime to lie about receipt of military medals.  The question of whether states can criminalize false statements of fact about political candidates made to influence electoral outcomes would thus seem to be present for decision, but SBA v. Driehaus will probably be decided on narrower, but still significant, grounds.  The Sixth Circuit's rationale is not only at odds with other circuits but rejects the logic of permitting facial challenges in free speech cases.  Facial challenges to overbroad laws that prohibit both protected and unprotected speech are welcomed because law-abiding citizens will be deterred from speaking, even if their speech is constitutionally protected. Such also laws invite selective prosecution.  But once a speaker has been prosecuted for violation of the law, even if the prosecution is dropped, that speaker has a justified fear of future prosecutions if he speaks up again.  The chill is evident, particularly with respect to political speech and speakers who repeatedly exercise their right to comment on candidates in the course of an election campaign.  It's true that the validity of the law could be tested in state courts (hence Younger abstention) but not if the prosecution is dropped.  The situation is not unlike the mootness doctrine of "capable of repetition but evading review." If the Court agrees the case goes back for development of the merits of the claim.  In another post I'll address the merits and the connection between striking down laws like Ohio's and the proliferation of campaign cash resulting from Citizens United and McCutcheon.

 

 

 

Comments

[Concerned Citizen]

Thanks much Prof. Massey for a concise and informative description and setting out the issues clearly. I'm very interested but it's not my area, and don't get to follow as closely as I'd like if I had more time. So I appreciate your having taking the time!