果冻传媒app官方

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A Closer Look at 果冻传媒app官方鈥檚 鈥楽usan B. Anthony List鈥 Brief

As announced earlier this week, FIREfiled an amicus curiae (鈥渇riend of the court鈥) brief (PDF) with the Supreme Court of the United States on Monday in the case of . Because the case is an important one for 果冻传媒app官方鈥檚 work challenging speech codes in court, it鈥檚 worth taking a closer look at the stakes and our arguments.

So what鈥檚 Susan B. Anthony List v. Driehaus about, and what鈥檚 果冻传媒app官方鈥檚 concern with it?

The case involves a First Amendment challenge to an in electoral campaigns. The challenge to the law鈥檚 constitutionality was brought in October 2010 by the Susan B. Anthony List (SBA List), a pro-life nonprofit organization that had planned to purchase billboards criticizing U.S. Representative Steve Driehaus鈥 vote on the Affordable Care Act. The billboards never actually materialized because the billboard company refused to sell the space to SBA List after Driehaus threatened to sue. Nevertheless, Driehaus filed a complaint about SBA List with the Ohio Elections Commission under the state鈥檚 鈥渇alse statements鈥 law.

A panel of Ohio Elections Commission members found 鈥減robable cause鈥 to refer Driehaus鈥 complaint to the full Commission for a hearing in two weeks鈥 time, per the law鈥檚 procedures. In response, SBA List filed suit in federal district court, challenging the law鈥檚 constitutionality and seeking an injunction against its enforcement. The district court declined to grant SBA List the injunctive relief it sought, but the parties agreed to delay the Ohio Elections Commission hearing until after the election, which Driehaus lost. Having failed to win reelection, Driehaus withdrew his complaint with the Ohio Elections Commission鈥攂ut SBA List, understandably aggrieved by the proceedings, amended its complaint shortly thereafter, pointing out that they remained subject to a similar speech-chilling hassle as long as the 鈥渇alse statements鈥 law remained on the books.

The district court dismissed SBA List鈥檚 suit (which had at this point been joined by another advocacy organization, also concerned about the law鈥檚 impact on its campaign-related speech), holding that SBA List鈥檚 complaint wasn鈥檛 鈥渞ipe鈥 for adjudication and that SBA List didn鈥檛 have standing to bring its challenge to the law鈥檚 constitutionality.

SBA List appealed to the United States Court of Appeals for the Sixth Circuit鈥攁nd this is where things get interesting for 果冻传媒app官方鈥檚 purposes.

On appeal, the Sixth Circuit upheld the lower court鈥檚 ruling and confirmed its rationale for dismissing the case, finding that SBA List lacked standing to sue. That鈥檚 right: Despite the fact that SBA List had been hauled before the Ohio Elections Commission because of Ohio鈥檚 law, where a panel of Commission members had found 鈥減robable cause鈥 to proceed to a full hearing, the Sixth Circuit nevertheless held that SBA List couldn鈥檛 bring suit because, in the Sixth Circuit鈥檚 estimation, the group was unable to demonstrate 鈥渁n imminent threat of future prosecution鈥 (emphasis in original). Concluding that 鈥淸n]o sword of Damocles dangles over SBA List to justify its fears,鈥 the Sixth Circuit labeled SBA List鈥檚 concern about being called to account for its speech again in the future to be mere 鈥渃onjecture鈥濃攁gain, ignoring the fact that the law under which SBA List was hauled in front of a government agency was still on the books, available to anybody who might disagree with SBA List鈥檚 speech.

The Sixth Circuit鈥檚 decision is deeply worrying to FIREbecause it raises the bar for plaintiffs seeking to challenge laws or regulations on First Amendment grounds. Courts have traditionally recognized a lower degree of harm sufficient for suit in First Amendment cases, relaxing standing requirements to allow plaintiffs to vindicate their expressive rights (as well as those of similarly situated citizens not before the court) without first risking punishment. So by upholding the dismissal of SBA List鈥檚 complaint on standing grounds, the Sixth Circuit broke sharply with other appellate courts with regard to the type of harm a First Amendment plaintiff challenging a law鈥攐r, say, a college speech code鈥攏eeds to demonstrate. As our brief to the Supreme Court explains:

The Sixth Circuit鈥檚 approach is both an outlier and mistaken. This Court and the lower courts have made clear that plaintiffs are not required to risk punishment鈥攚hether by conceding their speech is 鈥渇alse,鈥 鈥渉arassing,鈥 鈥渉ateful,鈥 or otherwise proscribed鈥攊n order to assert a claim. See Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (explaining that, if otherwise, 鈥渇ree expression鈥攐f transcendent value to all society, and not merely to those exercising their rights鈥攎ight be the loser鈥); see also Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (鈥淚n an effort to avoid the chilling effect of sweeping restrictions, the Supreme Court has endorsed what might be called a 鈥榟old your tongue and challenge now鈥 approach rather than requiring litigants to speak first and take their chances with the consequences.鈥).

If the Sixth Circuit鈥檚 high bar to standing is upheld by the Supreme Court, then college students and faculty whose speech is chilled by overly broad and vague speech codes will be denied the opportunity to seek judicial relief. In our brief, we argue:

[T]he Sixth Circuit鈥檚 rule requiring plaintiffs to allege an intention to violate the provision of law at issue not only is wrong as a doctrinal matter, it is particularly pernicious in the educational setting.  At a school with an overbroad speech or harassment code, virtually no one actually intends to harass or be 鈥渉ateful鈥 in her speech, and that is not what the pre-enforcement review is about.  The concern, instead, is that protected speech on important but sensitive issues will be deemed 鈥渉arassing鈥 or 鈥渉ateful鈥 under an impossibly vague harassment or speech code.  See DeJohn, 537 F.3d at 317 (鈥淔urther, the policy鈥檚 use of 鈥榟ostile,鈥 鈥榦ffensive,鈥 and 鈥榞ender-motivated鈥 is, on its face, sufficiently broad and subjective that they 鈥榗ould conceivably be applied to cover any speech鈥 of a 鈥檊ender-motivated鈥 nature 鈥榯he content of which offends someone.鈥欌) (quoting Saxe v. State College Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001) (Alito, J.)).  This is to say that the student at a school with a speech code does not intend to violate the code but has no way of actually knowing whether or not she will be prosecuted; the student, understandably, will self-censor as a matter of prudence to avoid punishment.

[...]

The point of all this is that if a university scholar were required to admit to violating a speech code in order to challenge its constitutionality, then for all practical purposes that scholar would never be able to bring a facial overbreadth challenge with respect to that code鈥攖hus eradicating access to the core means by which academic freedom is protected.  Indeed, without the availability of pre-enforcement facial challenges, few, if any, students or faculty would ever admit to violating a campus speech or harassment code, rendering such codes immune from challenge and perpetually chilling protected student speech.  And yet this is precisely what the Sixth Circuit鈥檚 decision here will encourage鈥攃ertainly in the university context.  At bottom, it is hard to postulate a state of affairs more offensive to the continued vigor of First Amendment freedoms on our college campuses, and FIREthus respectfully submits that the Court should reverse the appellate court鈥檚 decision and make clear that there is no room in our country鈥檚 classrooms for this sort of 鈥減all of orthodoxy鈥 to be cast down from above by university administrators.  Keyishian, 385 U.S. at 603.

Check out our full brief (PDF) for our entire argument. As noted on Tuesday, FIREis deeply grateful to Jeffrey A. Rosen of Kirkland & Ellis LLP, our counsel of record, and his team: John K. Crisham, Jennifer M. Bandy, and Michael A. Fragoso. Their generous assistance, offered pro bono, allowed FIREto provide the Court with our unique perspective on the case and the importance of the interests at stake.

For more on the threat to free speech presented by the Sixth Circuit鈥檚 decision, check out the brief filed by our colleagues in the First Amendment Lawyers Association. And for a lighter touch, be sure to read the (PDF) authored by the Cato Institute鈥檚 Ilya Shapiro and preeminent satirist P.J. O鈥橰ourke鈥攁n instant classic, dubbed the 鈥溾 by Above The Law.

Of course, we鈥檒l have more on the case when the Court issues its decision some months from now. Stay tuned.

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