During the 2010 federal election, the Susan B. Anthony List (SBAL), an advocacy organization “dedicated to electing candidates and pursuing policies that will reduce and ultimately end abortion” published ads in the district of former Rep. Steven Driehaus which read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The ad reflected SBAL’s interpretation of the impact that the Affordable Care Act would have on the funding of abortion procedures. 

Driehaus filed a complaint with the Ohio Elections Commission, claiming a violation of a state law that makes it illegal to knowingly and intentionally make false or misleading statements about a candidate for elected office. While the case was dropped, the Commission did find that there was probably cause to believe that SBAL violated the law.

SBAL then sued in federal court, claiming that the Ohio law was an unconstitutional restriction of its First Amendment rights. Both the district court and U.S. Court of Appeals for the Sixth Circuit dismissed the lawsuit. The courts’ reasoning was that SBAL hadn’t suffered any harm that would give it standing to challenge the law because the Commission hadn’t actually found that SBAL violated it or levied a fine. In order to challenge a law preemptively, the courts held, a litigant has to show that he intends not to comply with the law and thus face an “imminent” prosecution—which SBAL had not shown to the courts’ satisfaction. 

SBAL has asked the Supreme Court to decide the following question: “To challenge a speech-suppressive law, must a party whose speech is arguably proscribed prove that authorities would certainly and successfully prosecute him?” 

Joining the Institute for Justice, Cato has filed an amicus brief urging the Court to take the case because the Sixth Circuit’s holding “slammed shut the courthouse door on plaintiffs looking to challenge a criminal law that is specifically intended to suppress certain types of speech.” The brief makes three key points: (1) the standard set by the Sixth Circuit is much more restrictive than that used by the majority of circuit and state courts, and is inconsistent with the Supreme Court’s First Amendment jurisprudence; (2) requiring SBAL to say that it wishes to violate the law in future would require it to destroy its credibility by saying (correctly or incorrectly) that its statements about Driehaus or other candidates were false; and (3) the Sixth Circuit erred by taking an overly formalistic and idealized view of the law, and shouldn’t have ignored evidence about the way that the law is actually implemented. 

Because anyone, whatever his status, can initiate an Ohio Elections Commission investigation, there is a very real risk that SBAL’s enemies will file complaints in an attempt to stifle the organization’s free expression. Indeed, the record shows that statutes of this kind “are frequently used as weapons in campaign arsenals to silence or distract political opponents in the midst of heated elections.” 

The Court will decide whether to take Susan B. Anthony List v. Driehaus later this year. 

This blogpost was co-authored by Cato legal associate Gabriel Latner.