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41 Preview U.S. Sup. Ct. Cas. 301 (2013-2014)
What Is the Standard for a Pre-Enforcement Challenge to a Speech-Restrictive Law (13-193)

handle is hein.journals/prvw41 and id is 323 raw text is: 

What Is the Standard for a Pre-enforcement Challenge to a Speech-Restrictive Law?

A pro-life group criticized an Ohio-based congressman running for reelection for his support of the
Affordable Care Act and its funding for abortions. The congressman complained to the Ohio Election
Commission, which found probable cause to believe that the group violated a state law forbidding false
statements about candidates. However, the group was never prosecuted and the congressman lost
reelection and moved to another country. The group had filed a First Amendment lawsuit, contending that
it faced a credible threat of prosecution because it planned to make similar statements in the future about
other candidates. The Sixth Circuit determined the case was not justiciable, arguably erecting too high a
standard for pre-enforcement constitutional challenges. In this case, the U.S. Supreme Court presumably
will clarify the proper standard.

                              Susan B. Anthony List v. Driehaus
                                       Docket No. 13-193

                                Argument Date: April 22, 2014
                                    From: The Sixth Circuit

                                       by David L. Hudson Jr.
                                 Vanderbilt Law School, Nashville, TN

To challenge a speech-suppressive law, must a party whose speech
is arguably proscribed prove that authorities would certainly and
successfully prosecute him or her, as the Sixth Circuit holds, or
should the court presume that a credible threat of prosecution
exists absent desuetude or a firm commitment by prosecutors not to
enforce the law, as seven other circuits hold?

Did the Sixth Circuit err by holding, in direct conflict with the
Eighth Circuit, that state laws proscribing false political speech
are not subject to pre-enforcement First Amendment review so long
as the speaker maintains that his or her speech is true, even if
others who enforce the law manifestly disagree?

Petitioner Susan B. Anthony List (SBA List), a pro-life group,
sought to run advertisements against then-Congressman Steven
Driehaus, criticizing his support for the Affordable Health Care Act
as support for taxpayer-funded abortions. SBA List ran radio ads
stating that Driehaus had voted for taxpayer funding of abortion
when he cast his vote for the health care reform bill. SBA List also
ran billboards criticizing Driehaus. The congressman responded
by filing a complaint with the Ohio Elections Commission. His
complaint alleged that SBA List's speech violated Ohio Revised Code
§ 3517.21(B)(10), which forbids one to [p] ost, publish, circulate,
distribute, or otherwise disseminate a false statement concerning
a candidate, either knowing the same to be false or with reckless
disregard of whether it was false or not, if the statement is designed
to promote the election, nomination, or defeat of the candidate.

On October 14,2010, a three-member panel voted 2-1 to find
probable cause and referred Driehaus's complaint to the full
commission. On October 18, 2010, SBA List filed a case in federal
district court, challenging the constitutionality of the Ohio law
criminalizing false statements against candidates.

Driehaus withdrew his commission complaint after he lost his
reelection bid. SBA List amended its complaint to allege that the
commission's proceedings following Driehaus's complaint chilled its
free-speech and free-association rights.

Another group, petitioner Coalition Opposed to Additional Spending
and Taxes (COAST), agreed with SBA List about Driehaus and
wanted to post an ad with the following text: Despite denials,
Driehaus did vote to fund abortions with tax dollars. COAST filed a
lawsuit against the Ohio Elections Commission on October 27, 2010,
contending that it was chilled from engaging in political speech
for fear of being prosecuted under the false statements in a
campaign law.

A federal district court consolidated the two lawsuits and later
granted the defendants' motion to dismiss based on standing,
ripeness, and mootness grounds. Both groups appealed to the Sixth
U.S. Circuit Court of Appeals.

On May 13, 2013, the Sixth Circuit affirmed the lower court in Susan
B. Anthony List v. Driehaus, 525 Fed.Appx. 415. The Sixth Circuit
ruled that Susan B. Anthony List lacked standing and its lawsuit
was not ripe because it could not show an imminent threat of future
prosecution. The Sixth Circuit reasoned that the probable-cause

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