throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2013
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`
`
` SUSAN B. ANTHONY LIST ET AL. v. DRIEHAUS ET AL.
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SIXTH CIRCUIT
` No. 13–193. Argued April 22, 2014—Decided June 16, 2014
`
`Respondent Driehaus, a former Congressman, filed a complaint with
`
`the Ohio Elections Commission alleging that petitioner Susan B. An-
`
` thony List (SBA) violated an Ohio law that criminalizes certain false
`statements made during the course of a political campaign. Specifi-
`cally, Driehaus alleged that SBA violated the law when it stated that
`his vote for the Patient Protection and Affordable Care Act (ACA)
`was a vote in favor of “taxpayer funded abortion.” After Driehaus
`
` lost his re-election bid, the complaint was dismissed, but SBA contin-
` ued to pursue a separate suit in Federal District Court challenging
`
`the law on First Amendment grounds. Petitioner Coalition Opposed
`
`to Additional Spending and Taxes (COAST) also filed a First
`Amendment challenge to the Ohio law, alleging that it had planned
`to disseminate materials presenting a similar message but refrained
`due to the proceedings against SBA. The District Court consolidated
`the two lawsuits and dismissed them as nonjusticiable, concluding
`that neither suit presented a sufficiently concrete injury for purposes
`of standing or ripeness. The Sixth Circuit affirmed on ripeness
`grounds.
`Held: Petitioners have alleged a sufficiently imminent injury for Article
`
`III purposes. Pp. 7–18.
`(a) To establish Article III standing, a plaintiff must show, inter
`
`alia, an “injury in fact,” which must be “concrete and particularized”
`
`and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v.
`
`
`Defenders of Wildlife, 504 U. S. 555, 560. When challenging a law
`prior to its enforcement, a plaintiff satisfies the injury-in-fact re-
`quirement where he alleges “an intention to engage in a course of
`
`conduct arguably affected with a constitutional interest, but pro-
`
`
`scribed by a statute, and there exists a credible threat of prosecution
`
`
`
`
`
`
`
`

`
`2
`
`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`
`Syllabus
`thereunder.” Babbitt v. Farm Workers, 442 U. S. 289, 298. Pp. 7–11.
`
`(b) Petitioners have alleged a credible threat of enforcement of the
`Ohio law. Pp. 11–17.
`
`
`
`(1) Petitioners have alleged “an intention to engage in a course of
`conduct arguably affected with a constitutional interest” by pleading
`
` specific statements they intend to make in future election cycles.
`
`Pp. 11–12.
`
`
`(2) Petitioners’ intended future conduct is also “arguably . . . pro-
`scribed by [the] statute.” The Ohio false statement statute sweeps
`broadly, and a panel of the Ohio Elections Commission already found
`
`probable cause to believe that SBA violated the law when it made
`
`
`
`statements similar to those petitioners plan to make in the future.
`Golden v. Zwickler, 394 U. S. 103, is distinguishable; the threat of
`
`prosecution under an electoral leafletting ban in that case was wholly
`conjectural because the plaintiff’s “sole concern” related to a former
`
`Congressman who was unlikely to run for office again. Here, by con-
`trast, petitioners’ speech focuses on the broader issue of support for
`the ACA, not on the voting record of a single candidate. Nor does
`SBA’s insistence that its previous statements were true render its
`fears of enforcement misplaced. After all, that insistence did not pre-
`vent the Commission from finding probable cause for a violation the
`first time. Pp. 12–13.
`
`
`
`(3) Finally, the threat of future enforcement is substantial.
`There is a history of past enforcement against petitioners. Past en-
`
`forcement against the same conduct is good evidence that the threat
`
`of enforcement is not “ ‘chimerical.’ ” Steffel v. Thompson, 415 U. S.
`
`
`
`
`452, 459. The credibility of that threat is bolstered by the fact that a
`complaint may be filed with the State Commission by “any person,”
`
`
`Ohio Rev. Code Ann. §3517.153(A), not just a prosecutor or agency.
`
`The threatened Commission proceedings are of particular concern
`
`because of the burden they impose on electoral speech. Moreover, the
`
`target of a complaint may be forced to divert significant time and re-
`sources to hire legal counsel and respond to discovery requests in the
`crucial days before an election. But this Court need not decide
`whether the threat of Commission proceedings standing alone is suf-
`ficient; here, those proceedings are backed by the additional threat of
`
`
`criminal prosecution. Pp. 14–17.
`
`(c) The Sixth Circuit separately considered two other “prudential
`factors”: “fitness” and “hardship.” This Court need not resolve the
`
`continuing vitality of the prudential ripeness doctrine in this case be-
`
`cause those factors are easily satisfied here. See Lexmark Int’l, Inc.
`
`v. Static Control Components, Inc., 572 U. S. ___. Pp. 17–18.
`525 Fed. Appx. 415, reversed and remanded.
`THOMAS, J., delivered the opinion for a unanimous Court.
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13–193
`_________________
` SUSAN B. ANTHONY LIST, ET AL., PETITIONERS v.
`
`
`STEVEN DRIEHAUS ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE SIXTH CIRCUIT
`
`[June 16, 2014]
`
`JUSTICE THOMAS delivered the opinion of the Court.
`Petitioners in this case seek to challenge an Ohio stat-
`
`ute 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.
`
`
`
`
`
`
`
`I
`The Ohio statute at issue prohibits certain “false state-
`
`ment[s]” “during the course of any campaign for nomina-
`tion or election to public office or office of a political party.”
`Ohio Rev. Code Ann. §3517.21(B) (Lexis 2013). As rele-
`vant 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
`
`
`
`
`
`

`
`2
`
`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`Opinion of the Court
` 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 Com-
`mission) 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 Commis-
`sion 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 proba-
`ble 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 state-
`ments 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
`
`——————
`1Section 3517.21(B) provides in relevant part:
`
`“No person, during the course of any campaign for nomination or
`
`election to public office or office of a political party, by means of cam-
`paign materials, including sample ballots, an advertisement on radio or
`television or in a newspaper or periodical, a public speech, press re-
`lease, or otherwise, shall knowingly and with intent to affect the
`
`outcome of such campaign do any of the following:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`.
` .
` .
` .
` .
`“(9) Make a false statement concerning the voting record of a candi-
`date or public official;
`“(10) Post, 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, if the
`statement is designed to promote the election, nomination, or defeat of
`the candidate.”
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`3
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`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). Alterna-
`tively, 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 state-
`ment statute is a fourth-degree felony that carries a man-
`datory penalty of disfranchisement. §3599.39.
`
`
`II
`
`Petitioner Susan B. Anthony List (SBA) is a “pro-life
`advocacy organization.” 525 Fed. Appx. 415, 416 (CA6
`2013). During the 2010 election cycle, SBA publicly criti-
`cized 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 re-
`fused 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
`
`
`
`
`
`

`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`Opinion of the Court
` 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, seek-
`
`ing 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 (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
`——————
` 2The dispute about the falsity of SBA’s speech concerns two different
`
`provisions of the ACA: (1) the subsidy to assist lower income individ-
`uals in paying insurance premiums, and (2) the direct appropriation of
`federal money for certain health programs such as community health
`centers. See Brief for Petitioners 4–5.
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`
`
`
`

`
`5
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`relevant here, the amended complaint alleged that Ohio
`Rev. Code Ann. §§3517.21(B)(9) and (10) are unconstitu-
`tional both facially and as applied. Specifically, the com-
`plaint 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 sepa-
`rate suit brought by petitioner Coalition Opposed to Ad-
`ditional Spending and Taxes (COAST), an advocacy orga-
`nization 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
`
`——————
`3Petitioners also challenged a related “disclaimer provision,” App.
`126–127, 156–157, under Ohio Rev. Code Ann. §3517.20, and COAST
`
`
`
` raised pre-emption and due process claims. Reply Brief 21, n. 7.
` Petitioners do not pursue their “disclaimer,” pre-emption, or due
`
`process claims before us. Ibid. We also need not address SBA’s sepa-
`
` rate challenge to the Commission’s investigatory procedures; petition-
`ers have conceded that the procedures claim stands or falls with the
`substantive prohibition on false statements. Ibid.; see Tr. of Oral Arg.
`19. Finally, the parties agree that petitioners’ as-applied claims “are
`better read as facial objections to Ohio’s law.” Reply Brief 19. Accord-
`
`ingly, we do not separately address the as-applied claims.
`4SBA named Driehaus, the Commission’s members and its staff at-
`
`
`
`
`
`
`
`
`
`

`
`6
`
`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`Opinion of the Court
`The District Court dismissed both suits as non-
`
`justiciable, concluding that neither suit presented a suffi-
`ciently concrete injury for purposes of standing or ripe-
`ness. 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 determina-
`tion 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 rea-
`
`soned 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 in-
`tends to make are factually true. Id., at 422.
`
`As for the remaining factors, the court concluded that
`the factual record was insufficiently developed with re-
`spect to the content of SBA’s future speech, and that with-
`holding 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
`——————
`torney (in their official capacities), and the Ohio Secretary of State (in
`her official capacity) as defendants. COAST named the Commission,
`the Commission’s members and its staff attorney (in their official
`capacities), and the Ohio Secretary of State (in her official capacity) as
`defendants. All named defendants are respondents here.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`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. ___ (2014), and now
`reverse.
`
`7
`
`
`III
`
`A
`
`
`Article III of the Constitution limits the jurisdiction of
`
`federal courts to “Cases” and “Controversies.” U. S.
`Const., Art. III, §2. The doctrine of standing gives mean-
`ing to these constitutional limits by “identify[ing] those
`disputes which are appropriately resolved through the
`
`
`judicial process.”5 Lujan v. Defenders of Wildlife, 504 U. S.
`555, 560 (1992). “The law of Article III standing, which is
`built on separation-of-powers principles, serves to prevent
`the judicial process from being used to usurp the powers of
`the political branches.” Clapper v. Amnesty Int’l USA, 568
`U. S. ___, ___, (2013) (slip op., at 9). To establish Article
`III standing, a plaintiff must show (1) an “injury in fact,”
`(2) a sufficient “causal connection between the injury
`and the conduct complained of,” and (3) a “likel[ihood]”
`that the injury “will be redressed by a favorable decision.”
`
`Lujan, supra, at 560–561 (internal quotation marks
`omitted).
`
`This case concerns the injury-in-fact requirement, which
`helps to ensure that the plaintiff has a “personal stake in
`
`
`the outcome of the controversy.” Warth v. Seldin, 422
`——————
`
`5The doctrines of standing and ripeness “originate” from the same
`
` Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332,
`
`335 (2006). As the parties acknowledge, the Article III standing and
`ripeness issues in this case “boil down to the same question.” Med-
`
`
` Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief
`for Petitioners 28; Brief for Respondents 22. Consistent with our
`practice in cases like Virginia v. American Booksellers Assn., Inc., 484
`U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299,
`
` n. 11 (1979), we use the term “standing” in this opinion.
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`8
`
`
`
`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`Opinion of the Court
`
`U. S. 490, 498 (1975) (internal quotation marks omitted).
`
` An injury sufficient to satisfy Article III must be “concrete
`and particularized” and “actual or imminent, not ‘conjec-
`tural’ or ‘hypothetical.’ ” Lujan, supra, at 560 (some inter-
`nal question marks omitted). An allegation of future
`injury may suffice if the threatened injury is “certainly
`impending,” or there is a “‘substantial risk’ that the harm
`
`will occur.” Clapper, 568 U. S., at ___, ___, n. 5 (slip op., at
`
`10, 15, n. 5) (emphasis deleted and internal quotation
`marks omitted).
`“‘The party invoking federal jurisdiction bears the
`
`burden of establishing’ standing.” Id., at ___ (slip op., at
`12). “[E]ach element must be supported in the same way
`as any other matter on which the plaintiff bears the bur-
`den of proof, i.e., with the manner and degree of evidence
`required at the successive stages of the litigation.” Lujan,
`supra, at 561.
`
`
`
`
`
`
`
`B
`
`One recurring issue in our cases is determining when
`the threatened enforcement of a law creates an Article III
`injury. When an individual is subject to such a threat, an
`actual arrest, prosecution, or other enforcement action is
`not a prerequisite to challenging the law. See Steffel v.
`
`Thompson, 415 U. S. 452, 459 (1974) (“[I]t is not necessary
`
`that petitioner first expose himself to actual arrest or
`prosecution to be entitled to challenge a statute that he
`claims deters the exercise of his constitutional rights”); see
`also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118,
`
`128–129 (2007) (“[W]here threatened action by government
`is concerned, we do not require a plaintiff to expose him-
`self to liability before bringing suit to challenge the basis
`for the threat”).
`Instead, we have permitted pre-
`enforcement review under circumstances that render the
`threatened enforcement sufficiently imminent. Specifically,
`
`we have held that a plaintiff satisfies the injury-in-fact
`
`
`
`
`
`

`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`requirement where he alleges “an intention to engage in a
`
`course of conduct arguably affected with a constitutional
`interest, but proscribed by a statute, and there exists a
`
`credible threat of prosecution thereunder.” Babbitt v.
`Farm Workers, 442 U. S. 289, 298 (1979). Several of our
`cases illustrate the circumstances under which plaintiffs
`may bring a preenforcement challenge consistent with
`Article III.
`
` In Steffel, for example, police officers threatened to
`arrest petitioner and his companion for distributing hand-
`bills protesting the Vietnam War. Petitioner left to avoid
`arrest; his companion remained and was arrested and
`charged with criminal trespass. Petitioner sought a de-
`claratory judgment that the trespass statute was uncon-
`stitutional as applied to him.
`
`We determined that petitioner had alleged a credible
`
`threat of enforcement: He had been warned to stop hand-
`billing and threatened with prosecution if he disobeyed; he
`
`stated his desire to continue handbilling (an activity he
`
`claimed was constitutionally protected); and his compan-
`ion’s prosecution showed that his “concern with arrest”
`was not “‘chimerical.’” 415 U. S., at 459. Under those
`circumstances, we said, “it is not necessary that petitioner
`first expose himself to actual arrest or prosecution to be
`entitled to challenge a statute that he claims deters the
`exercise of his constitutional rights.” Ibid.
`In Babbitt, we considered a preenforcement challenge to
`
`a statute that made it an unfair labor practice to encour-
`age consumers to boycott an “agricultural product . . . by
`the use of dishonest, untruthful and deceptive publicity.’”
`442 U. S., at 301. The plaintiffs contended that the law
`“unconstitutionally penalize[d] inaccuracies inadvertently
`uttered in the course of consumer appeals.” Ibid.
`Building on Steffel, we explained that a plaintiff could
`
`
`bring a preenforcement suit when he “has alleged an
`intention to engage in a course of conduct arguably af-
`
`
`
`
`
`
`
`
`
`9
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
` 10
`
`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`Opinion of the Court
`fected with a constitutional interest, but proscribed by a
`statute, and there exists a credible threat of prosecution
`thereunder.” Babbit, supra, at 298. We found those cir-
`cumstances present in Babbitt. In that case, the law “on
`
`its face proscribe[d] dishonest, untruthful, and deceptive
`publicity.” 442 U. S., at 302. The plaintiffs had “actively
`engaged in consumer publicity campaigns in the past” and
`alleged “an intention to continue” those campaigns in the
`future. Id., at 301. And although they did not “plan to
`propagate untruths,” they argued that “‘erroneous state-
`ment is inevitable in free debate.’” Ibid. We concluded
`that the plaintiffs’ fear of prosecution was not “imaginary
`or wholly speculative,” and that their challenge to the
`
`consumer publicity provision presented an Article III case
`or controversy. Id., at 302.
`
`Two other cases bear mention. In Virginia v. American
`
`
`
`
`Booksellers Assn. Inc., 484 U. S. 383 (1988), we held that
`booksellers could seek preenforcement review of a law
`making it a crime to “‘knowingly display for commercial
`purpose’” material that is “‘harmful to juveniles’” as
`defined by the statute.
`Id., at 386. At trial, the
`booksellers introduced 16 books they believed were cov-
`ered by the statute and testified that costly compliance
`measures would be necessary to avoid prosecution for
`
`displaying such books. Just as in Babbitt and Steffel, we
`determined that the “pre-enforcement nature” of the suit
`was not “troubl[ing]” because the plaintiffs had “alleged an
`actual and well-founded fear that the law will be enforced
`against them.” 484 U. S., at 393.
`
` Finally, in Holder v. Humanitarian Law Project, 561
`U. S. 1 (2010), we considered a preenforcement challenge
`
`to a law that criminalized “‘knowingly provid[ing] mate-
`rial support or resources to a foreign terrorist organiza-
`tion.’” Id., at 8. The plaintiffs claimed that they had
`provided support to groups designated as terrorist organi-
`zations prior to the law’s enactment and would provide
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`similar support in the future. The Government had
`charged 150 persons with violating the law and declined to
`disavow prosecution if the plaintiffs resumed their support
`of the designated organizations. We held that the claims
`were justiciable: The plaintiffs faced a “‘credible threat’”
`of enforcement and “‘should not be required to await and
`undergo a criminal prosecution as the sole means of seek-
`
`ing relief.’” Id., at 15.
`
`
`
`
`
`IV
`
`
`Here, SBA and COAST contend that the threat of en-
`forcement of the false statement statute amounts to an
`Article III injury in fact. We agree: Petitioners have al-
`leged a credible threat of enforcement. See Babbitt, 442
`U. S., at 298.
`
`
`
`A
`
`First, petitioners have alleged “an intention to engage in
`a course of conduct arguably affected with a constitutional
`interest.”
`Ibid. Both petitioners have pleaded specific
`
`statements they intend to make in future election cycles.
`SBA has already stated that representatives who voted for
`the ACA supported “taxpayer-funded abortion,” and it has
`alleged an “inten[t] to engage in substantially similar
`activity in the future.” App. 49–50, 122. See also Human-
`itarian Law Project, supra, at 15–16 (observing that plain-
`tiffs had previously provided support to groups designated
`as terrorist organizations and alleged they “would provide
`similar support [to the same terrorist organizations] again
`if the statute’s allegedly unconstitutional bar were lifted”).
`COAST has alleged that it previously intended to dissemi-
`
`nate materials criticizing a vote for the ACA as a vote “to
`fund abortions with tax dollars,” and that it “desires to
`make the same or similar statements about other federal
`
`candidates who voted for [the ACA].” App. 146, 149, 162.
`Because petitioners’ intended future conduct concerns
`
`
`
`
`
`
`
`
`
`
`
`
`
` 11
`
`
`
`
`
`
`
`
`
`
`
`

`
`
` 12
`
`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`Opinion of the Court
`political speech, it is certainly “affected with a constitu-
`tional interest.” Babbitt, supra, at 298; see also Monitor
`Patriot Co. v. Roy, 401 U. S. 265, 272 (1971) (“[T]he consti-
`tutional guarantee has its fullest and most urgent applica-
`tion precisely to the conduct of campaigns for political
`office”).
`
`B
`Next, petitioners’ intended future conduct is “argua-
`
`bly. . . proscribed by [the] statute” they wish to challenge.
`
`Babbitt, supra, at 298. The Ohio false statement law
`sweeps broadly, see supra, at 1–2, and n. 1., and covers
`the subject matter of petitioners’ intended speech. Both
`SBA and COAST have alleged an intent to “[m]ake”
`statements “concerning the voting record of a candidate or
`public official,” §3517.21(B)(9), and to “disseminate”
`statements “concerning a candidate . . . to promote the
`
`the candidate,”
`election, nomination, or defeat of
`§3517.21(B)(10). And, a Commission panel here already
`found probable cause to believe that SBA violated the
`statute when it stated that Driehaus had supported
`“taxpayer-funded abortion”—the same sort of statement
`
`petitioners plan to disseminate in the future. Under these
`circumstances, we have no difficulty concluding that peti-
`tioners’ intended speech is “arguably proscribed” by the
`law.
`Respondents incorrectly rely on Golden v. Zwickler, 394
`
`U. S. 103 (1969). In that case, the plaintiff had previously
`distributed anonymous leaflets criticizing a particular
`
`Congressman who had since left office. Id., at 104–106,
`and n. 2. The Court dismissed the plaintiff ’s challenge to
`the electoral leafletting ban as nonjusticiable because his
`“sole concern was literature relating to the Congressman
`and his record,” and “it was most unlikely that the Con-
`gressman would again be a candidate.” Id., at 109 (em-
`phasis added). Under those circumstances, any threat of
`
`
`
`

`
`
`
` 13
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
` future prosecution was “wholly conjectural.” Ibid.
`
`
`Here, by contrast, petitioners’ speech focuses on the
`broader issue of support for the ACA, not on the voting
`record of a single candidate. See Reply Brief 4–5 (identify-
`ing other elected officials who plan to seek reelection as
`
`
`potential objects of SBA’s criticisms). Because petitioners’
`alleged future speech is not directed exclusively at
`Driehaus, it does not matter whether he “may run for
`office again.” Brief for Respondents 33 (internal quotation
`marks omitted). As long as petitioners continue to engage
`in comparable electoral speech regarding support for the
`ACA, that speech will remain arguably proscribed by
`Ohio’s false statement statute.
`Respondents, echoing the Sixth Circuit, contend that
`
`
`SBA’s fears of enforcement are misplaced because SBA
`
`has not said it “‘plans to lie or recklessly disregard the
`
`veracity of its speech.’” Id., at 15 (quoting 525 Fed. Appx.,
`at 422). The Sixth Circuit reasoned that because SBA
`“can only be liable for making a statement ‘knowing’ it is
`false,” SBA’s insistence that its speech is factually true
`“makes the possibility of prosecution for uttering such
`statements exceedingly slim.” Id., at 422.
`
`
`The Sixth Circuit misses the point. SBA’s insistence
`that the allegations in its press release were true did not
`
`prevent the Commission panel from finding probable
`cause to believe that SBA had violated the law the first
`
`time around. And, there is every reason to think that
`similar speech in the future will result in similar proceed-
`ings, notwithstanding SBA’s belief in the truth of its alle-
`
`gations. Nothing in this Court’s decisions requires a
`plaintiff who wishes to challenge the constitutionality of a
`law to confess that he will in fact violate that law. See,
`
`e.g., Babbitt, 442 U. S., at 301 (case was justiciable even
`
`though plaintiffs disavowed any intent to “propagate
`
`untruths”).
`
`
`
`
`
`
`
`
`
`

`
`
` 14
`
`
`SUSAN B. ANTHONY LIST v. DRIEHAUS
`
`
`Opinion of the Court
`
`C
`
`
`Finally, the threat of future enforcement of the false
`statement statute is substantial. Most obviously, there is
`a history of past enforcement here: SBA was the subject of
`a complaint in a recent election cycle. We have observed
`that pas

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket