June 16, 2014

Supreme Court Decides Susan B. Anthony List v. Driehaus

On June 16, 2014, the United States Supreme Court decided Susan B. Anthony List v. Driehaus, No. 13-193, holding that a credible threat of enforcement of a law is sufficient to establish an Article III injury in fact.

During the 2010 elections, Susan B. Anthony List (SBA) criticized members of Congress who voted for the Affordable Care Act, including Steve Driehaus of Ohio. SBA issued a press release stating that Driehaus had "voted FOR taxpayer-funded abortion." Driehaus complained to the Ohio Election Commission on the basis of Ohio Revised Code § 3517.21(B)(9) and (10), which bar knowingly making a false statement about a candidate's voting record and knowingly or recklessly disseminating a false statement about a candidate, if designed to affect the election. The Commission instituted administrative proceedings. Another group, Coalition Opposed to Additional Spending and Taxes (COAST), intended to disseminate similar statements but refrained after the administrative proceedings against SBA began.

SBA and COAST each sued alleging that §§ 3517.21(B)(9) and (10) are unconstitutional. The district court consolidated the suits and dismissed both, concluding that neither SBA nor COAST had a sufficiently concrete injury to establish standing. The Sixth Circuit affirmed, holding that the case was not ripe for review.

The Supreme Court reversed, holding that SBA and COAST established a threat of enforcement of §§ 3517.21(B)(9) and (10) that is sufficient to establish an injury in fact for Article III standing purposes. The Court first reasoned that SBA and COAST alleged an intention to engage in conduct that is arguably affected with a constitutional interest because their future conduct concerns political speech. Second, SBAs and COASTs future conduct is "arguably proscribed" by the law, in particular because the Commission already found probable cause to believe SBA violated the statute in 2010 with similar statements. Finally, the threat of future enforcement of the statute is substantial because (1) there is a history of past enforcement; (2) the Commission found probable cause that SBA violated the statute; (3) anyone may file a complaint with the Commission; and (4) the Commission regularly hears false-statement complaints.

Justice Thomas delivered the opinion of the unanimous Court.

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