Argument preview: Attack ads and the First Amendment

At 10 a.m. next Tuesday, the Supreme Court continues its current fascination with free speech and the First Amendment, exploring at a one-hour hearing when an advocacy group can challenge a restriction on election campaign rhetoric.  Arguing for two advocacy groups in Susan B. Anthony List v. Driehaus will be Michael A. Carvin of the Washington, D.C., office of Jones Day, with twenty minutes of time.  If the Court, as expected, permits the federal government to join in the argument, its views will be represented by Eric J. Feigin, an Assistant to the U.S. Solicitor General, with ten minutes.  Ohio’s lawyer at the lectern, with thirty minutes, will be Ohio Solicitor Eric E. Murphy of Columbus.

Background

The attack ad, often used to shame a candidate in an effort to persuade voters, is as common in today’s political campaigns as buttons, town hall meetings, and endorsements.  But it is not routine for the government to try to police those ads.  The state of Ohio and some fifteen others try to do so, however, and that has helped produce the latest First Amendment case for a Supreme Court that currently has a keen interest in that amendment, especially in campaign settings.

In all of the history of the First Amendment, the Court has never ruled that false statements are totally without protection under the Constitution.  It made the point again (although in a somewhat uncertain ruling that lacked a clear majority) in the decision two years ago in United States v. Alvarez, which took most of the punch out of a federal law making it a federal crime to falsely claim that one had received a military medal.  That, too, involved political speech.

But if a group or an individual wants to challenge a law that outlaws speech, how and when is it allowed to go to court to claim the protection of the First Amendment?  That is the issue the Court faces next week, in the first case to reach it in which opposition to the new federal health care law became a campaign issue.

When the House of Representatives in 2010 gave its final approval to the Affordable Care Act (now known widely in politics as “Obamacare”), one of the Democrats voting for it was Rep. Steven Driehaus, representing an Ohio district that included Cincinnati and its suburbs.  Later that year, he campaigned for reelection, but was defeated.

An advocacy group that is opposed to abortions, the Susan B. Anthony List, made an arrangement to put up a billboard in Driehaus’s district that would proclaim: “Shame on Steve Driehaus!  Driehaus voted FOR taxpayer-funded abortion.”  It also aired radio broadcasts with the same message.  The billboard never went up, because the company owning the space backed down when a lawyer for the congressman threatened to sue, claiming the message misrepresented his vote.

Driehaus soon pursued a complaint with the Ohio Elections Commission, which has the power to recommend prosecution for violations of a state truth-in-politics law.  That law has two key provisions: it prohibits anyone from trying to influence voters by intentionally making a false statement about a candidate’s voting record, and it prohibits the distribution of any false statement about a candidate if the source knew it was false or didn’t care whether it was true or false.

The state commission, in a preliminary vote, sided with Driehaus, but before any prosecution by state officials went forward, Driehaus was defeated for reelection, and his complaint was dismissed by the commission at his request.

Susan B. Anthony List then sued in federal court, seeking to strike down the law under the First Amendment.  It sued Driehaus and the state commission, along with its members.  That case was joined with one filed by an anti-tax group, the Coalition Opposed to Additional Spending and Taxes, which had wanted to send out emails and other materials also attacking Driehaus for allegedly voting for tax-supported abortion.  That group said it had held off sending out its messages because it knew of the commission action on Driehaus’s complaint, and was deterred from speaking out.

A federal judge dismissed the lawsuits without ruling on their First Amendment claim.  The judge found that the lawsuits could not go forward procedurally, because they were filed too soon, lacked proof of any legal injury, or would have no legal effect since there had been no prosecution under the state law.

The U.S. Court of Appeals for the Sixth Circuit refused to revive the lawsuits.  It said the state commission’s action did not reach a final ruling that the state law had been violated, that there was no immediate prospect of actual enforcement of the law, that the chance of prosecution was diminished because there was no admission that the statement about Driehaus was false, and that it was only speculation that there would be a future complaint of a violation of the law by one of these groups.

In essence, the appeals court ruling went far toward ruling out pre-enforcement challenges of a political speech restriction, when enforcement was not looming imminently.

Both organizations took the case on to the Supreme Court in August of last year.

Petition for certiorari

The two groups opened their petition to the Court in a tone of disbelief: “Believe it or not, it is a criminal offense in Ohio to make a knowingly or recklessly ‘false’ statement about a political candidate or ballot initiative.”  They asked the Court to rule on two issues, both focused on the scope of the right to sue, rather than on the constitutionality of the Ohio law.

First, the petition asked whether prosecution under a speech-restricting law had to be certain and successful before it could be challenged in court under the First Amendment, and, on that point, it noted that the federal appeals courts are divided.  Second, it asked whether a pre-enforcement challenge of a ban on false political statements was barred if the speaker insists that the message was true — another issue, it said, that has split lower courts.

The groups argued that the Sixth Circuit “has created a paradigmatic Catch-22, whereby a speech-restrictive law cannot be challenged before, during, or after prosecution — only once the speaker has been successfully convicted.”  The result, they contended, can only be self-censorship by political speakers, “degrading political debate.”

Ohio chose not to respond to the appeal, but the Court last September asked for a response.  The state then urged the Court to bypass the case.  Among other points, it argued that only county prosecutors in Ohio could actually enforce the state law, that none of them had been sued, that the Sixth Circuit had already ruled that the state commission had no power to “enjoin speech,” and that, if the commission ever did take final action against these groups, that would not amount to a prosecution anyway.

Moreover, the state’s lawyers argued, the Sixth Circuit in this case had used the same standard “as everyone else” had — that is, that a lawsuit had to claim a “credible threat of prosecution.”

The Court granted review on January 10, apparently accepting both issues for review.

Briefs on the merits

The challengers’ merits brief opened with the same “believe it or not” rhetorical thrust, expanded to note that violations of the state law at issue could lead to “fines or even imprisonment.”  The aim of the statement, at the merits stage as well as the petition stage, was to encourage the Court from the outset to see the Ohio law as an outlier, with no place in American politics.

It went on to make a judicial policy argument that did focus on the issue before the Court — that is, the right to bring a challenge to such a law.  The brief contended that the Sixth Circuit’s decision, “as a practical matter, insulates this patently unconstitutional regime from any federal judicial review.”

Some of the most energetic argument in the body of this brief, however, put its focus on the Ohio law.  It relied heavily upon the Supreme Court’s ruling in United States v. Alvarez, in which, it noted, even the dissenting Justices had agreed that “allowing the government to serve as arbiter of political ‘truth’ cannot be squared with basic free-speech principles.”

Ohio and the other states with such truth-in-politics laws, the document contended, are attempting with such laws to “do exactly what Alvarez warned against, inserting state bureaucrats and judges into political debates and charging them with separating truth from oft-alleged campaign ‘lies.’  Such statutes are almost certainly unconstitutional, yet they play a troubling, harassing role in every political campaign in those states.”

When the groups’ brief moved on to the right-to-sue issue, it pressed the argument that it should be sufficient to get into court if “there exists a ‘credible threat’ that one’s speech will be penalized” under a law such as Ohio’s.  That standard can be met, it contended, “based on just the existence of the law and the party’s intention to take action that may be perceived as violating it.”

In the face of such a “credible threat,” the brief said, a lawsuit should be barred only if there is “an express commitment by prosecutors not to enforce the law.”  Otherwise, a “fear of prosecution” should be enough.

Going over the facts in the proceeding that Driehaus pursued before the state commission, the groups’ brief said there was more than enough basis for their fear of prosecution if they went ahead with the messages they had wanted to put out during the congressional campaign.

It then sought to dismiss all of the Sixth Circuit’s rationales for blocking the two lawsuits from going forward, and put some special emphasis on the argument that it should make no difference to the right to sue that a group actually believed that its campaign message was true — bearing on the second issue the Court is reviewing.

Its ultimate point, though, was a return to the perceived constitutional vice of the truth-in-politics law itself.  The groups’ brief contended that, by keeping them out of court, the Sixth Circuit had “secured perpetuation of a blatantly unlawful regime under which bureaucrats are the supreme fact-checkers for every political campaign — a regime that has, predictably, been routinely abused.”

Under that law, it argued, the only thing that a political opponent need do — because the Ohio law allows anyone to go to the state commission with a falsity complaint — is to file such a complaint, shutting down rivals’ messages while the campaign is underway, and then dropping the issue after the election is over.

The federal government has entered the case as an amicus supporting the challengers, but it urged the Court to craft a careful decision that would allow the two advocacy groups to go forward with only a claim that the truth-in-politics law’s regulation of speech was invalid as written — that is, they should be allowed to press a “facial challenge” to the law’s restrictions.

That part of the case should go ahead, the government brief argued, because the government endorsed the idea that it would be sufficient to make a claim of a “credible threat of prosecution,” and because the government agreed that the state commission’s preliminary finding that Susan B. Anthony List had intentionally misinformed voters did make an actual prosecution under the law more likely and thus would impede the ability to speak out during the campaign season.

Beyond that direct attack on the text of the two laws, the government brief argued, the two groups had not offered a sufficient basis for them to go ahead with any challenge to the procedures the state commission might use, or to a separate state law that requires them to disclose who paid for their political messages, and they should not be allowed to continue their lawsuit against any state official other than the election commission and not against the Ohio secretary of state, nor against former Representative Driehaus, since he may never run for office again.

It was clear from the federal government’s brief that the Justice Department was most concerned about the effect of the truth-in-politics laws as written, and wanted the case to home in on that alone.

State officials, in two briefs at the merits stage, presented the Court with divided approaches.  The merits brief that appears to reflect primarily the views of the state election commission sought to head off entirely the two groups’ lawsuits, based on the argument that those lawsuits are primarily aimed at future regulation of their speech, and such claims are premature at this point.

Much of that brief tracks the Sixth Circuit’s conclusions to justify its decision to bar the challengers’ lawsuit from proceeding to a ruling on the validity of the state law.

The state’s attorney general, Michael DeWine, signed both that brief and a separate one, for himself, that is said to be “in support of neither party.”  DeWine’s brief told the Court that he signed on to the other brief for the state, under his obligation to defend state laws that are attacked.

But his own brief voiced a concern that the Ohio truth-in-politics law may well be unconstitutional, and it argued that, in an appropriate case, the federal courts should actually judge its constitutionality — a process that the DeWine filing clearly implied should lead to a decision to strike down the law.

Aside from his duty as the state’s top legal officer to defend state laws, the attorney general’s brief said, the holder of that office also has “a special duty . . . to acknowledge when the government’s side might be wrong.”

On the issues that the Court has agreed to review, focusing on the right to sue, the DeWine separate brief said that his concern about the validity of the law should inform the Court’s decision about whether to allow the challengers’ lawsuit to move ahead.

Thus, the federal government’s amicus brief, in its more modest approach, and the DeWine separate brief, in his bold challenge to the validity of his own state’s law, provide significant support for the challenging advocacy groups’ effort to scuttle the state law.

If that were not sufficient support, however, the groups also have drawn nineteen other amicus briefs, ranging widely from the political right to the political left, and including news and book publishers and a wide array of other free-expression organizations and politically active groups (including the Republican National Committee).

And, notably, there is not a single amicus brief on Ohio’s side.   At the oral argument, the imbalance in the filings may add to the challenge facing the state’s solicitor, Eric E. Murphy, who will be making his first appearance before the Justices.

Analysis

One of the main tasks facing the Justices as they take up this case will be to discipline themselves to keep their attention focused on the questions they have actually agreed to decide:  that is, how and when may a court case go forward against a law that aims at limiting expression protected by the First Amendment.

That is a constitutional issue, to be sure, based on how the Justices interpret — in the political rhetoric context — the Article III limitations on the power of federal courts.  But so much of what has been said in the briefing in this case is about the merits of the Ohio truth-in-politics law that this constitutional question may thrust itself front and center.

Will the Court, if it shares the concern expressed here about supposed bureaucratic meddling in the heat of an election campaign, be driven to assure the continuation of a lawsuit designed to stop that meddling?  In other words, what role — if any — does the potential invalidity of a law play in deciding whether Article III allows it to be challenged in federal court?  Should the courthouse door stand more widely open for a challenge that, at the very outset, seems more meritorious in the end?

This is a Court with a committed majority in favor of enlarging First Amendment rights in general, and in political expression in particular.  But it is also a Court that has shown a decided tendency to scale back on access to the federal courts, by taking a fairly stringent view of what Article III demands.  If there is a tension there, how will this Court deal with it?