Susan B. Anthony List v. Driehaus

Decision Date16 June 2014
Docket NumberNo. 13–193.,13–193.
Citation189 L.Ed.2d 246,573 U.S. 149,134 S.Ct. 2334
Parties SUSAN B. ANTHONY LIST, et al., Petitioners v. Steven DRIEHAUS et al.
CourtU.S. Supreme Court

Michael A. Carvin, Washington, DC, for Petitioners.

Eric J. Feigin, for the United States as amicus curiae, by special leave of the Court, supporting partial reversal.

Eric E. Murphy, State Solicitor, for Respondents.

Christopher P. Finney, The Finney Law Firm, Cincinnati, OH, Curt C. Hartman, The Law Firm of Curt C. Hartman, Amelia, OH, Robert A. Destro, Arlington, VA, Michael A. Carvin, Counsel of Record, Yaakov M. Roth, Jones Day, Washington, DC, David R. Langdon, Joshua B. Bolinger, Langdon Law LLC, West Chester, OH, for Petitioners.

Michael DeWine, Attorney General of Ohio, Eric E. Murphy, State Solicitor, Counsel of Record, Samuel C. Peterson, Peter K. Glenn–Applegate, Deputy Solicitors, Columbus, OH, for State Respondents Kimberly Allison, Degee Wilhelm, Helen Balcolm, Terrance Conroy, Lynn Grimshaw, Jayme Smoot, William Vasil, Philip Richter, Ohio Elections Commission, and Jon Husted.

Justice THOMAS delivered the opinion of the Court.

Petitioners in this case seek to challenge an Ohio statute that prohibits certain "false statements" during the course of a political campaign. The question in this case is whether their preenforcement challenge to that law is justiciable—and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have.


The Ohio statute at issue prohibits certain "false statement[s]" "during the course of any campaign for nomination or election to public office or office of a political party." Ohio Rev.Code Ann. § 3517.21(B) (Lexis 2013). As relevant here, the statute makes it a crime for any person to "[m]ake a false statement concerning the voting record of a candidate or public official," § 3517.21(B)(9), or to "[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not," § 3517.21(B)(10).1

"[A]ny person" acting on personal knowledge may file a complaint with the Ohio Elections Commission (or Commission) alleging a violation of the false statement statute. § 3517.153(A) (Lexis Supp. 2014). If filed within 60 days of a primary election or 90 days of a general election, the complaint is referred to a panel of at least three Commission members. §§ 3517.156(A), (B)(1) (Lexis 2013). The panel must then hold an expedited hearing, generally within two business days, § 3517.156(B)(1), to determine whether there is probable cause to believe the alleged violation occurred, § 3517.156(C). Upon a finding of probable cause, the full Commission must, within 10 days, hold a hearing on the complaint. § 3517.156(C)(2); see also Ohio Admin. Code § 3517–1–10(E) (2008).

The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev.Code Ann. § 3517.153(B) (Lexis Supp. 2014). At the full hearing, the parties may make opening and closing statements and present evidence. Ohio Admin. Code §§ 3517–1–11(B)(2)(c), (d), (g). If the Commission determines by "clear and convincing evidence" that a party has violated the false statement law, the Commission "shall" refer the matter to the relevant county prosecutor. Ohio Rev.Code Ann. §§ 3517.155(D)(1)-(2) (Lexis Supp. 2014). Alternatively, the Commission's regulations state that it may simply issue a reprimand. See Ohio Admin. Code § 3517–1–14(D). Violation of the false statement statute is a first-degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev.Code Ann. §§ 3599.40 (Lexis 2013), 3517.992(V) (Lexis Supp. 2014). A second conviction under the false statement statute is a fourth-degree felony that carries a mandatory penalty of disfranchisement. § 3599.39.


Petitioner Susan B. Anthony List (SBA) is a "pro-life advocacy organization." 525 Fed.Appx. 415, 416 (C.A.6 2013). During the 2010 election cycle, SBA publicly criticized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to "educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion." App. 49–50. The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus' district condemning that vote. The planned billboard would have read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Id., at 37. The advertising company that owned the billboard space refused to display that message, however, after Driehaus' counsel threatened legal action.

On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated §§ 3517.21(B)(9) and (10) by falsely stating that he had voted for "taxpayer-funded abortion."2 Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA's communications with allied organizations, political party committees, and Members of Congress and their staffs.

On October 18, 2010—after the panel's probable-cause determination, but before the scheduled Commission hearing—SBA filed suit in Federal District Court, seeking declaratory and injunctive relief on the ground that §§ 3517.21(B)(9) and (10) violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), pending completion of the Commission proceedings. The Sixth Circuit denied SBA's motion for an injunction pending appeal. Driehaus aND sba eventually agreed to postpone the fuLl commission hearing until after the election.

When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA's consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As relevant here, the amended complaint alleged that Ohio Rev.Code Ann. §§ 3517.21(B)(9) and (10) are unconstitutional both facially and as applied. Specifically, the complaint alleged that SBA's speech about Driehaus had been chilled; that SBA "intends to engage in substantially similar activity in the future"; and that it "face [d] the prospect of its speech and associational rights again being chilled and burdened," because "[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself." App. 121–122.

The District Court consolidated SBA's suit with a separate suit brought by petitioner Coalition Opposed to Additional Spending and Taxes (COAST), an advocacy organization that also alleged that the same Ohio false statement provisions are unconstitutional both facially and as applied.3 According to its amended complaint, COAST intended to disseminate a mass e-mail and other materials criticizing Driehaus' vote for the ACA as a vote "to fund abortions with tax dollars," but refrained from doing so because of the Commission proceedings against SBA. Id., at 146, 148, 162. COAST further alleged that it "desires to make the same or similar statements about other federal candidates who voted for" the ACA, but that fear "of finding itself subject to the same fate" as SBA has deterred it from doing so. Id., at 149, 157.4

The District Court dismissed both suits as non-justiciable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds. 525 Fed.Appx. 415. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied.

Regarding the first factor, the Sixth Circuit concluded that SBA's prior injuries—the probable-cause determination and the billboard rejection—"do not help it show an imminent threat of future prosecution," particularly where "the Commission never found that SBA ... violated Ohio's false-statement law." Id., at 420. The court further reasoned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2–year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that "it plans to lie or recklessly disregard the veracity of its speech" in the future, but rather maintains that the statements it intends to make are factually true. Id., at 422.

As for the remaining factors, the court concluded that the factual record was insufficiently developed with respect to the content of SBA's future speech, and that withholding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit therefore determined that SBA's suit was not ripe for review, and that its analysis as to SBA compelled the same conclusion with respect to COAST.

We granted certiorari, 571 U.S. ––––, ––– S.Ct. ––––, –––...

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