The Supreme Court today delivered what the Media Coalition (including publishers, booksellers, and librarians) is hailing as a key free speech decision, holding in a unanimous 9-0 ruling, that “a credible threat of enforcement” is sufficient to establish standing in cases with First Amendment implications.
The ruling stems from the case of Susan B. Anthony List v. Driehaus, and involved 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 (SBAL) 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 that owned the billboard space backed down after a lawyer for the congressman threatened to sue, claiming the message misrepresented the facts.
SBAL later filed a “pre-enforcement” challenge, arguing that its free speech rights were being impeded by the threat of litigation made against the billboard space provider. But the case was dismissed by a district court, which held that the group lacked standing to file a challenge because it couldn’t demonstrate that “prosecution was likely or imminent.” An appeals court later affirmed that decision, setting up today’s striking reversal by the Supreme Court.
“This decision affirms the principle that a person, organization or business should not have to risk prosecution to challenge the constitutionality of a law,” said David Horowitz, executive director of Media Coalition, which submitted a brief in the case. “We are gratified that the Court today recognized the immense harm that can occur when individuals are required to put their liberty at risk in order to vindicate their free speech rights.”
In its amicus brief, Media Coalition lawyers argued that pre-enforcement challenges are “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." Michael Bamberger, the lead counsel on the amicus brief, said, "I cannot overstate the importance of this decision in protecting First Amendment rights. An affirmance of the Sixth Circuit decision could have resulted in unconstitutional laws going unchallenged causing a substantial chilling effect on free speech."