Susan B. Anthony List v. Driehaus, 14–4008.

• Decision Date: 24 February 2016
• Docket Number: No. 14–4008.,14–4008.
• Citation: 814 F.3d 466
• Parties: SUSAN B. ANTHONY LIST; Coalition Opposed to Additional Spending & Taxes, Plaintiffs–Appellees, v. Steven DRIEHAUS, Defendants, Ohio Elections Commission ; John R. Mroczkowski; Bryan Felmet; Charles E. Calvert; Jayme P. Smoot; Harvey H. Shapiro; Degee Wilhelm; Larry L. Wolpert; Philip Richter, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

814 F.3d 466

SUSAN B. ANTHONY LIST; Coalition Opposed to Additional Spending & Taxes, Plaintiffs–Appellees,

v. Steven DRIEHAUS, Defendants,Ohio Elections Commission ; John R. Mroczkowski; Bryan Felmet; Charles E. Calvert; Jayme P. Smoot; Harvey H. Shapiro; Degee Wilhelm; Larry L. Wolpert; Philip Richter, Defendants–Appellants.

No. 14–4008.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 10, 2015.

Decided and Filed: Feb. 24, 2016.

ARGUED:Tiffany L. Carwile, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Yaakov M. Roth, Jones Day, Washington, D.C., for Appellee Susan B. Anthony List. ON BRIEF:Tiffany L. Carwile, Bridget C. Coontz, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Yaakov M. Roth, Michael A. Carvin, Jones Day, Washington, D.C., David R. Langdon, Langdon Law LLC, West Chester, Ohio, for Appellee Susan B. Anthony List. Curt C. Hartman, The Law Firm Of Curt C. Hartman, Cincinnati, Ohio, Christopher P. Finney, Finney Law Firm LLC, Cincinnati, Ohio, for Appellee Coalition Opposed to Additional Spending. Deborah J. Dewart, Swansboro, North Carolina, Maurice A. Thompson, 1851 Center for Constitutional Law, Columbus, Ohio, David J. Carey, Thompson Hine LLP, Columbus, Ohio, John K. Bush, Bingham Greenebaum Doll LLP, Louisville, Kentucky, John C. Eastman, Center For Constitutional Jurisprudence, Orange, California, Allen Dickerson, Center For Competitive Politics, Alexandria, Virginia, for Amici Curiae.

Before: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.^*

OPINION

COLE, Chief Judge.

Susan B. Anthony List ("SBA List") and the Coalition Opposed to Additional Spending and Taxes ("COAST") sued the Ohio Elections Commission ("Commission") and various state officials, alleging that Ohio's political false-statements laws, Ohio Rev.Code § 3517.21(B)(9)–(10), violate the First and Fourteenth Amendments. The district court agreed and entered summary judgment and a permanent injunction in favor of SBA List and COAST. Susan B. Anthony List v. Ohio Elections Comm'n, 45 F.Supp.3d 765, 781 (S.D.Ohio 2014). Because the laws are content-based restrictions that burden core protected political speech and are not narrowly tailored to achieve the state's interest in promoting fair elections, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Ohio's Political False–Statements Laws

Ohio's political false-statements laws prohibit persons from disseminating false information about a political candidate in campaign materials during the campaign season "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." Ohio Rev.Code § 3517.21(B)(10). The statutes specifically prohibit false statements about a candidate's voting record, but are not limited to that. See Ohio Rev.Code § 3517.21(B)(9)–(10). "Campaign materials" are broadly defined as, but not limited to, "sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, [or] press release." Ohio Rev.Code § 3517.21(B).

Any person, including the Secretary of State or a Board of Elections official, may file a complaint with the Commission alleging a violation of the political false-statements laws. Ohio Rev.Code §§ 3517.21(C), 3517.153. For a complaint filed shortly before an election, there is a three-step process to be convicted of the crime of making a political false statement. First, a panel of the Commission conducts a preliminary probable cause hearing based on the complaint and issues a public finding. Ohio Rev.Code §§ 3517.154, 3517.156. If the panel finds probable cause, the complaint proceeds to an adjudicatory hearing before the full Commission. Ohio Rev.Code § 3517.156(C)(2) (referencing the hearing procedures outlined by § 3517.155 ). If, after the adjudicatory hearing, the Commission finds by clear and convincing evidence that a party violated the political false-statements laws, it may refer the case to a prosecutor. Ohio Rev.Code §§ 3517.21(C), 3517.155(A)(1)(c), 3517.155(D). If convicted in subsequent state court proceedings, first-time violators may be sentenced up to six months in prison or fined up to $5,000. Ohio Rev.Code § 3517.992(V). For complaints filed after an election, more than sixty days before a primary election, or more than ninety days before a general election, there is no probable cause hearing and the complaint proceeds directly to an adjudicatory hearing. Ohio Rev.Code § 3517.155.

B. Litigation

In 2010, then-Congressman Steven Driehaus filed a complaint with the Commission alleging that SBA List violated Ohio's political false-statements laws by issuing a press release accusing him of voting for "taxpayer-funded abortion" by voting for the Affordable Care Act. Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2339, 189 L.Ed.2d 246 (2014). A panel of the Commission issued a probable cause finding that SBA List violated the law. Id. SBA List responded by filing suit against Driehaus and various state officials in the Southern District of Ohio. That case was consolidated with a similar case that COAST filed, adding the Commission as a defendant, based on its desire to make similar accusations against Driehaus in a mass email. Both parties sought declaratory and injunctive relief, alleging the political false-statements laws violate the First and Fourteenth Amendments to the United States Constitution. Id. at 2339–40. The Supreme Court held this case was ripe for review as a facial challenge, despite the dismissal of the administrative proceedings. Id. at 2347.¹ On remand, the district court granted SBA List's and COAST's motions for summary judgment, holding that Ohio's political false-statements laws were content-based restrictions that fail strict scrutiny review.

Ohio Elections Comm'n, 45 F.Supp.3d at 775–79. Accordingly, the district court "str[uck] down the laws as unconstitutional and permanently enjoin[ed] the Ohio Elections Commission and its members from enforcing Ohio's political false-statements laws." Id. at 770. The Commission appeals.

II. STANDARD OF REVIEW

We review de novo a district court's decision to grant summary judgment. E.g., Bible Believers v. Wayne Cnty., 805 F.3d 228, 242 (6th Cir.2015). Summary judgment is only appropriate if the record, when viewed in the light most favorable to the nonmoving party, reveals no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(a).

III. ANALYSIS

A. Whether We Are Bound By Sixth Circuit Precedent

As an initial matter, the Commission argues we are bound by our decision in Pestrak v. Ohio Elections Commission, 926 F.2d 573 (6th Cir.1991), which held that Ohio's political false-statements laws were constitutional on their face and, for the most part, in their enforcement. "A published prior panel decision ‘remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.’ " Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir.2009) (quoting Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985) ); see also 6th Cir. R. 32.1(b). Despite the Commission's arguments, we conclude we are no longer bound by Pestrak due to intervening Supreme Court decisions.

First, while the 1986 version of the statute construed by Pestrak had identical prohibitions, it had different enforcement procedures that alleviate some of the problems with the current statute. Compare Ohio Rev.Code § 3599.091 (1986), with Ohio Rev.Code §§ 3517.156, 3517.21 (1995). Under the former statute, the Commission did not issue probable cause findings, but waited until its investigation was complete before making any ruling on a complaint. See Ohio Rev.Code § 3599.091(C) (1986). Further, while the former statute provided the Commission with subpoena power, the accused party may not have been compelled to defend itself until there was a finding that it had in fact violated the political false-statements laws. See Ohio Rev.Code § 3599.091(D) (1986).

Second, several post-Pestrak Supreme Court rulings call our decision into question. See Reed v. Town of Gilbert, ––– U.S. ––––, 135 S.Ct. 2218, 2230, 192 L.Ed.2d 236 (2015) ; McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 351–53, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) ; City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) ; R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). But the Supreme Court's decision in United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), most clearly abrogates Pestrak 's reasoning. In Alvarez, the Supreme Court struck down the Stolen Valor Act, a law that prohibited persons from falsely claiming they won the Congressional Medal of Honor, regardless of if the false statement was made knowingly.

Alvarez abrogates Pestrak's holding that knowing false speech merits no constitutional protection. In Pestrak, we determined that, on their face, Ohio's political false-statements laws were constitutional because "false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth." Pestrak, 926 F.2d at 577. However, in Alvarez the Supreme Court unanimously rejected the "categorical rule ... that false statements receive no First Amendment protection." Alvarez, 132 S.Ct. at 2545 (plurality opinion); see id. at 2254–55 (Breyer, J., concurring in the judgment); id. at 2563 (Alito, J., dissenting). In particular, Alvarez distinguished the cases on which Pestrak relied, noting that these cases did not depend on the falsity of the statements, but on the fact that they were defamatory, fraudulent, or caused some other "legally...