The Supreme Court today is slated to hear oral arguments in what has been billed a key free speech case by the publishing community. In the case, Susan B. Anthony List v. Driehaus, a coalition of publishers, booksellers, and libraries filed a friend-of-the-court brief urging the Court to “reaffirm the principle that persons who have a well-founded fear of prosecution under a law that infringes First Amendment rights should have standing to bring a pre-enforcement challenge to the law, and need not face a choice between engaging in self-censorship and risking criminal prosecution.”
The original case centers on an Ohio law that prohibits individuals or groups from knowingly making false statements in political campaigns. It was filed last summer after the Susan B. Anthony List attempted to launch a campaign against former Congressman Steve Driehaus that claimed Driehaus supported taxpayer-funded abortions because of his support for the Affordable Care Act. The ads never happened, however, because the company which owned the billboard space backed down after a lawyer for the congressman threatened to sue, claiming the message misrepresented the facts. The Susan B. Anthony List (SBAL) filed a pre-enforcement challenge, but a U.S. District Court in Ohio dismissed it, holding that the group lacked standing because it couldn’t demonstrate that “prosecution was likely or imminent.” The United States Court of Appeals for the Sixth Circuit affirmed the decision, and it is now before the Supreme Court.
In its amicus brief, a coalition of publishers, booksellers and libraries argue that SBAL should have the right to file a pre-enforcement challenge, calling it “a critical tool for protecting free speech" because the passage of "an unconstitutional law can have a chilling effect, making people afraid to exercise their rights.” While noting that its support for SBAL’s right to file a challenge does "not hinge directly on the merits of the case," the brief cites 23 such pre-enforcement challenges over the last 35 years that could have been dismissed under the Sixth Circuit’s definition of standing, but in which the statutes at issue were either “enjoined or narrowed” to comply with the First Amendment.
“This case threatens the ability of any group, association or individual to challenge a law that violates free speech rights,” said Media Coalition Executive Director David Horowitz. “If booksellers, publishers and librarians can only vindicate their First Amendment rights through a criminal trial, this will cause a profound chilling effect on free speech.”
The brief was filed on behalf of the American Booksellers Association; American Booksellers Foundation for Free Expression; American Library Association; Association of American Publishers, Inc.; Comic Book Legal Defense Fund; Freedom to Read Foundation; Great Lakes Independent Booksellers Association; Mountain & Plains Independent Booksellers Association; Pacific Northwest Booksellers Association; Southern Independent Booksellers Alliance; Annie Bloom’s Books, Changing Hands Bookstore, Inc.; Harvard Book Store, Inc.; Paulina Springs Books; Powell’s Bookstore, Inc.; Schuler Books, Inc.; Tattered Cover, Inc.; The King’s English, Inc.; Weller Book Works; Village Books; and Dark Horse Comics.