Today’s Supreme Court false election statements case is unlikely to produce any ruling about false election statements

April 22, 2014

Jonathan Adler mentions this near the end of his post, but I think it’s worth noting again: While the plaintiffs in Susan B. Anthony List v. Driehaus are saying that Ohio’s ban on knowingly or recklessly making false statements in election campaigns violates the First Amendment, that’s not the issue the court is confronting now.

The lower court just threw out the case, on the grounds that the plaintiffs couldn’t seek a declaration that the statute is unconstitutional — such a declaration requires a showing of a credible threat of government action, and, the Sixth Circuit said, no such showing was made. The plaintiffs are arguing (plausibly, I think), that such a threat was eminently present here. If plaintiffs win at the Supreme Court, the case will go back down to the Sixth Circuit for a determination whether the statute is indeed constitutional. If plaintiffs lose, this case will be over, and the challenge to the statute will have to wait (for instance, until an appeal from an actual enforcement action).

In theory, if the Supreme Court says that plaintiffs are entitled to their day in court, it could actually decide the First Amendment issue as well. But this has always seemed unlikely, and the oral argument makes that even clearer: The Justices focused on the procedural issue, and asked virtually nothing about the underlying First Amendment question. That suggests that, however the decision in this case will go, the First Amendment issue won’t be resolved this time (though there is a split on the question among lower courts, so it seems likely that the Supreme Court will have to consider it at some point).

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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