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FIRE’s review of the year’s big stories here on The Torch wouldn’t be complete without a look at Susan B. Anthony List v. Driehaus, one of the spring’s Supreme Court cases to watch for First Amendment advocates. This post from Susan Kruth, originally published on June 17, explains the details of the case and why this decision is critically important for free expression.

In Unanimous Ruling, Supreme Court Protects Ability to Challenge Restrictions on Speech

Back in March, FIREfiled an amicus curiae brief (PDF) with the Supreme Court of the United States in the case of after the United States Court of Appeals for the Sixth Circuit’s ruling in the case threatened to create a significant hurdle for those wishing to challenge restrictions on speech in court. FIREis happy to report that yesterday, the Supreme Court unanimously (PDF) and remanded the case for further proceedings. The Court’s ruling reaffirmed that the threat of punishment may allow for a First Amendment challenge to a law, even if that law has not yet been enforced against the speaker.

First, some background on the case.

During the 2010 election cycle, Susan B. Anthony List (SBA List), a pro-life nonprofit organization, planned on purchasing billboards criticizing U.S. Representative Steve Driehaus’ vote on the Affordable Care Act. A billboard company refused to sell SBA List the space after Driehaus threatened to sue, but even without the billboards in place, Driehaus filed a complaint about SBA List with the Ohio Elections Commission under the state’s in electoral campaigns. On October 14, 2010, 10 days after Driehaus filed his complaint, a panel of Ohio Elections Commission members found “probable cause” to refer Driehaus’ complaint to the full Commission for a hearing. SBA List filed suit in federal district court, arguing that the false statements law violated the First Amendment.

Driehaus withdrew his complaint after losing the election. Still, SBA List continued with its suit, claiming that the law left them vulnerable to punishment for future, similar speech they had planned. But despite the fact that SBA List had already faced an investigation and proceedings before the Commission, the district court dismissed SBA List’s suit on the grounds that SBA List couldn’t show “an imminent threat of future prosecution” (emphasis in original). (Under Article III of the Constitution, federal courts have the power to decide cases only if they involve “actual or imminent” harm to a party, not merely a “hypothetical” injury.)

Troublingly, the Sixth Circuit affirmed this decision, putting it at odds with long-standing jurisprudence. Accompanied by a hefty paragraph of citations to appellate court decisions across the country, FIREexplained in our amicus brief to the Supreme Court:

The vast majority of courts and commentators have recognized that the threat of chilled speech justifies a unique approach to ripeness in the First Amendment Context. Federal appellate courts outside the Sixth Circuit agree that the ripeness analysis is applied “most permissively” in this context. … Given the potential for “chilling” effects on speech, the majority of circuits have concluded that, in the First Amendment context, the existence of a statute that arguably restricts a plaintiff’s speech is sufficient to give rise to a credible threat of prosecution—even absent any specific enforcement threats by the government.

The facts of the case demonstrate the danger in the Sixth Circuit’s holding. Despite SBA List escaping criminal prosecution this time, a second organization—Coalition Opposed to Additional Spending and Taxes (COAST)—decided not to engage in similar speech in order to avoid SBA List’s fate. That’s the chilling effect at work, a phenomenon FIREsees time and again at colleges and universities, where students and faculty choose to self-censor rather than risk punishment under vague or overbroad speech codes. And just as self-censorship of political speech hampers the democratic process, self-censorship in higher education interferes with the purpose of a university—allowing students and professors to share and hear a variety of ideas.

To require that a speaker be arrested, prosecuted, or subject to an investigation or disciplinary action before challenging a speech restriction would create a difficult dilemma for potential speakers—they can either refrain from exercising their First Amendment right to free speech or they can risk serious consequences.

The Supreme Court recognized the danger in this result, and noted early in its analysis that:

When an individual is subject to ... a threat [of enforcement of a law], an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”) … .

In SBA List’s case, the organization “alleged a credible threat of enforcement” because it had already engaged in speech that a panel of Commission members had decided might violate the false statements law, and the organization alleged plans to continue engaging in similar speech in the future. Because SBA List’s focus is on pro-life issues broadly and not just Driehaus’ vote specifically, the resolution of the dispute with Driehaus did not extinguish the possibility of a similar case in the future. And as the Court recognized in its ruling, even though SBA List expressed no intention to knowingly or recklessly lie, the risk of prosecution is evident from the facts:

SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.

These principles may be critical in cases involving students subject to overbroad speech codes. For example, imagine a student group had previously been disallowed from speaking outside of a campus “free speech zone.” Should that group have to continue speaking outside of the free speech zone until its members are brought before a disciplinary committee, before they challenge the speech code?

Such a requirement would lead to many students simply abandoning efforts to express themselves in most areas of the campus, instead of taking the necessary steps to challenge the institution’s rule. As ������ýapp�ٷ�’s brief noted:

[W]hile challenges to these codes and the chilling environments they create frequently are successful, the ability to continue to challenge such policies necessarily is contingent upon the availability of pre-enforcement review. In direct conflict with decades of this Court’s precedents, as well as the decisions of its sister circuits, the Sixth Circuit’s decision inevitably will restrict the ability to pursue pre-enforcement challenges and thus will jeopardize essential free speech rights of university students and professors.

After all, it is of paramount importance that people be able to freely exercise their First Amendment rights without fear of reprisal; otherwise the right is meaningless. Requiring a speaker to make himself or herself vulnerable to serious punishment in order to challenge a rule or a law, therefore, is inconsistent with longstanding jurisprudence and free speech principles.

While the holding of SBA List v. Driehaus does not explicitly govern cases involving institutions of higher education, an opposite holding by the Court could have had dire implications for those cases. The Court’s decision instead leaves students substantially in the same place they were in before, with some good language to bolster their cases should they file suit against their schools to challenge speech codes.

FIRE would again like to thank Jeffrey A. Rosen of Kirkland & Ellis LLP, our counsel of record, and his colleagues John K. Crisham, Jennifer M. Bandy, and Michael A. Fragoso for their generous donation of time and expertise in authoring ������ýapp�ٷ�’s amicus brief (PDF).

For more on the case, check out ������ýapp�ٷ�’s past coverage, the on the outcome, and the (PDF) from yesterday.