Susan B Anthony List / Steve Driehaus to U.S. Supreme Court

   Cincinnati.com yesterday morning had an article asking “…What could bring together the American Civil Liberties Union, the Cincinnati anti-tax group COAST and one-time National Lampoon editor P.J. O'Rourke?

  “How about a four-year-old Cincinnati political brawl turned Supreme Court case that touches on everything from abortion to Obamacare to the First Amendment?

  “At its heart, the case is a constitutional challenge to an Ohio law that bars lying about candidates during an election, (but) in arguments set for next month, the Supreme Court will consider a narrower question, where the legal tussle has already generated some surprising twists and turns... how many Pinocchios does the Ohio law allow?”

  ScotusBlog’s Marty Lederman’s contribution is maybe a bit less colorful. He asks “When the constitutionality of a statute is challenged in court, and the attorney general – the state’s chief litigating officer – agrees that the statute is unconstitutional, what should (or can, or must) he do?

  "In the usual case, the attorney general defers to the presumed view of the legislature and the chief executive who signed the legislation, and defends the law without mentioning any constitutional doubts.  When the chief executive himself weighs in, however, and agrees that the law is unconstitutional, the practice is typically different.  Sometimes the executive stops enforcing the statute, especially in cases where a constitutional defense is untenable.  Increasingly, however, the federal executive branch does what President Obama and Attorney General Holder decided to do in 2011 regarding Section 3 of the Defense of Marriage Act – namely, to cease defending, or even to argue against, the constitutionality of the law, but to continue to enforce it and take the necessary steps, including appeal, to ensure that the Supreme Court has the final word on the constitutional question.  In the wake of the Court’s landmark decision in United States v. Windsor last Term, several state attorneys general have adopted such an “enforce-and-appeal-but-don’t-defend” posture in litigation challenging the constitutionality of state laws limiting marriage to opposite-sex couples.

  “Other strategies are less common... There is at least one case in which the acting U.S. solicitor general (John Roberts) attacked the constitutionality of federal statutes before the Supreme Court even though the President had recently signed the laws and had not publicly questioned their constitutionality….

  “Even less well known is yet another strategy, which was first employed by then-Solicitor General Robert Bork in Buckley v. Valeo in 1975.  Bork and Attorney General Edward Levi filed two briefs in Buckley, on opposite sides of the First Amendment questions raised in that case.  As far as I know, no one has emulated the Bork dual briefing in the four decades since Buckley . . . until now, in a remarkable recent filing by Ohio Attorney General Michael DeWine in Susan B. Anthony List v. Driehaus…..  (See ScotusBlog docket)

  “In Buckley, SG Bork and AG Levi filed an eighty-five-page brief in the Supreme Court on behalf of the Attorney General and the Federal Election Commission as parties.  That brief advanced a robust defense of the contribution, expenditure, and disclosure limitations of the Federal Election Campaign Act of 1974.

  “The Solicitor General’s own views about the constitutionality of the statute, however, were very different.  Frank Easterbrook, then an Assistant to the SG, would later recount that Bork considered FECA ‘unconstitutional root and branch,’ and referred to it as the ‘fecal matter.’  Both Bork and Attorney General Levi then appeared on a second brief, styled as a brief on behalf of the United States as amicus curiae, which included a ninety-five-page discussion of the First Amendment issues.  The brief’s stated purpose was to “attempt to assist [the Court] in analysis without pointing the way to particular conclusions”; but in fact the brief pressed a much more skeptical view of the constitutionality of FECA’s contribution and expenditure provisions.”
 
  Cincinnati.com’s article notes even further that the case's origins lie with a nonexistent billboard… “during the 2010 First  District U.S. House race between then-Democratic Rep. Steven Driehaus and his GOP challenger, Steve Chabot of Westwood. An anti-abortion group called the Susan B. Anthony List wanted to launch a billboard campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health-reform law. Driehaus sought a ruling from the Ohio Elections Commission to block the ads, saying they violated a provision in Ohio election law that bars knowingly or recklessly making false statements about a candidate. The billboards never went up after Driehaus' lawyer threatened legal action.”

  In any event, we're now looking at the Supreme Court listening to arguments on the whole thing next month. The ABA even has a preview posted.

  The SUSAN B. ANTHONY LIST and COALITION OPPOSED TO ADDITIONAL SPENDING AND TAXES in bringing the case to the Court present two issues: (1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree…..

 With respect to the second, maintaining “this Court held that even false statements are protected by the First Amendment. United States v. Alvarez, 132 S. Ct. 2537, 2547 (2012). Even the dissenters agreed that laws proscribing false statements about “matters of public concern” would create a “potential for abuse of power” “simply too great” for the First Amendment to tolerate. Id. at 2564 (Alito, J., dissenting).

  “…Yet nearly one-third of the states still have statutes prohibiting “false” statements made during political campaigns—often, as in Ohio, with criminal sanctions attached. These laws 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.

  “… The contrary opinion below is, however, in line with the Sixth Circuit’s uniquely restrictive approach to justiciability in pre-enforcement First Amendment cases.

  “In addition to departing from its sister Circuits on the more general “credible threat of prosecution” standard, the decision below squarely contradicts the Eighth Circuit’s resolution of a virtually identical challenge to a virtually identical law in 2011. Reversing a district court, the Eighth Circuit allowed a speaker to challenge Minnesota’s false-statement  law: The statute was not in 'disuse' and the state had not promised not to enforce it, and that was—per the usual presumption adopted by the Eighth and most Circuits—sufficient for standing and ripeness. Moreover, despite maintaining the truth of its statements, the plaintiff had a reasonable fear of prosecution, according to the Eighth Circuit, given that past complaints had been filed against it. The decision below, by contrast, held exactly the opposite on indistinguishable facts…. “

  “In 281 Care Committee v. Arneson, 638 F.3d 621 (8th  Cir.  2011),  the  Eighth  Circuit  addressed  a challenge  to Minnesota’s  false-statement  law,  which  (like  Ohio’s)  forbids  dissemination  of  knowingly  or recklessly false statements in campaigns.  Under the Minnesota  law,  like  the  Ohio  law,  any  person  may file  a  complaint  alleging  violation  of  the  provision; county   attorneys   may   choose   to   bring   criminal charges  after  administrative  proceedings  end….”

Sixth Circuit holding in Susan B. Anthony List, et al v. Driehaus, Nos. 11-3894/3925, May 13, 2013
Eighth Circuit in 281 Care Committee v. Arneson, No. 10-1558, April 28, 2011