Anti-abortion group may proceed with its challenge to Ohio’s ban on knowing/reckless false statements in election campaigns

Ohio bans knowingly or recklessly false statements in election campaigns. It’s not clear whether such a ban is constitutional — even before Alvarez, the case that struck down the Stolen Valor Act and expressly held that even many knowing lies are constitutionally protected, lower courts disagreed on the constitutionality of such laws. One objection to the laws is that they may deter even true statements (or expressions of opinion) and that even unfounded preelection proceedings under such laws, brought on an expedited basis before administrative agencies, may end up harming accused candidates based on what they’ve said. Indeed, in this case, there’s some controversy about whether the past statements by the Susan B. Anthony List, criticizing then-Congressman Steve Driehaus, were false:

On March 23, 2010, President Obama signed into law … the Affordable Care Act. SBA List, a nonprofit organization that advances pro-life causes, opposes the legislation because it believes that its provisions permit taxpayer-funded abortion. In the lead-up to the 2010 general election, SBA List wanted to put up a billboard in then-Congressman Driehaus’s district criticizing his vote in favor of the Act. The planned billboard read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus’s counsel threatened legal action against it.

The Susan B. Anthony List argued that its allegations were correct because the Act would have funded certain kinds of abortions, and Driehaus voted for the Act; Driehaus argued that the Act actually wouldn’t permit such abortions — for a sample of the debate, see the transcript of the hearing in front of an Ohio Elections Commission “probable cause panel”. The commission’s panel voted 2-1 to find probable cause that the statements were indeed knowingly or recklessly false and to proceed with the case.

But in today’s Susan B. Anthony List v. Driehaus, the Court did not decide whether such laws were constitutional, or whether SBA List’s statements were knowingly or recklessly false. Rather, it considered whether the List could proceed with its challenge to the law, given that the proceedings against it had been stopped. (Driehaus lost the election and then withdrew the complaint.) The Sixth Circuit had held that the case wasn’t “ripe” for decision, given the absence of any imminent threat of future proceedings (and the lack of any legal judgment against the List in the past proceedings). As the Supreme Court described it,

[T]he Sixth Circuit concluded that SBA’s prior injuries — the probable-cause determination and the billboard rejection — “do not help it show an imminent threat of future prosecution,” particularly where “the Commission never found that SBA … violated Ohio’s false-statement law.” The court further reasoned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that “it plans to lie or recklessly disregard the veracity of its speech” in the future, but rather maintains that the statements it intends to make are factually true…. The Sixth Circuit therefore determined that SBA’s suit was not ripe for review, and that its analysis as to SBA compelled the same conclusion with respect to COAST [another group that intended to engage in speech much like the SBA's].

The Court disagreed, arguing that SBA and COAST had alleged a sufficiently “credible threat of enforcement” to justify a challenge even in the absence of a pending enforcement proceeding:

Here, SBA and COAST contend that the threat of enforcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have alleged a credible threat of enforcement….

First, petitioners have alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported “taxpayer-funded abortion,” and it has alleged an “inten[t] to engage in substantially similar activity in the future.” COAST has alleged that it previously intended to disseminate materials criticizing a vote for the ACA as a vote “to fund abortions with tax dollars,” and that it “desires to make the same or similar statements about other federal candidates who voted for [the ACA].” Because petitioners’ intended future conduct concerns political speech, it is certainly “affected with a constitutional interest.” …

Next, petitioners’ intended future conduct is “arguably … proscribed by [the] statute” they wish to challenge…. Both SBA and COAST have alleged an intent to “[m]ake” statements “concerning the voting record of a candidate or public official,” and to “disseminate” statements “concerning a candidate … to promote the election, nomination, or defeat of the candidate.” And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported “taxpayer-funded abortion” — the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners’ intended speech is “arguably proscribed” by the law….

[P]etitioners’ speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Because petitioners’ alleged future speech is not directed exclusively at Driehaus, it does not matter whether he “may run for office again.” As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio’s false statement statute.

Respondents, echoing the Sixth Circuit, contend that SBA’s fears of enforcement are misplaced because SBA has not said it “‘plans to lie or recklessly disregard the veracity of its speech.’” … [But] SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law….

Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not “‘chimerical.’” Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA’s speech violated the false statement statute. Indeed future complainants may well “invoke the prior probable-cause finding to prove that SBA knowingly lied.”

The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows “any person” with knowledge of the purported violation to file a complaint. 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.

Finally, Commission proceedings are not a rare occurrence. Petitioners inform us that the Commission “‘handles about 20 to 80 false statement complaints per year,’” and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. In fact, 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.”

We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review. The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant … to gain a campaign advantage without ever having to prove the falsity of a statement.” DeWine Brief 7. “[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.” Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, “such a determination itself may be viewed [by the electorate] as a sanction by the State.”

Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case….

[Likewise,] COAST has alleged an intent to engage in the same speech that was the subject of a prior enforcement proceeding. Also …, COAST has been the subject of Commission proceedings in the past…. In sum, we find that both SBA and COAST have alleged a credible threat of enforcement….

So this is an important procedural decision, applicable to a wide range of speech restrictions — not just bans on knowingly or recklessly false statements in election campaigns — and of course to a wide range of viewpoints, not just anti-abortion speech. But it doesn’t signal whether the Ohio law is constitutional, something that lower courts will have to consider now that the case is being sent back down to them.

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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