[EL] Susan B. Anthony case transcript

Rick Hasen rhasen at law.uci.edu
Tue Apr 22 12:32:15 PDT 2014 

Mark.  I agree.  Here is what I just posted:


    Thoughts on Today's SCOTUS False Speech Case
    <http://electionlawblog.org/?p=60735>

Posted on April 22, 2014 12:31 pm 
<http://electionlawblog.org/?p=60735>by Rick Hasen 
<http://electionlawblog.org/?author=3>

I have now had the chance to review the transcript 
<http://www.scotusblog.com/case-files/cases/susan-b-anthony-list-v-driehaus/>in 
today's /Susan B. Anthony/ case. I'm going to stick with my pre-argument 
prediction <http://electionlawblog.org/?p=60708>: This is likely to be a 
unanimous decision against the state of Ohio.  There may be a few 
Justices (Scalia, Alito, Thomas) who will want to reach the merits of 
the constitutionality of the false speech scheme. I imagine the other 
Justices won't go that far because it is not necessary to reach that 
question right now.  But a majority opinion could well cast doubt on the 
constitutionality of a false speech law, at least one that has the 
government itself engage in a "ministry of truth" function. (My analysis 
of that inA Constitutional Right to Lie in Campaigns and Elections? 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>)

Interesting too was the contrast with defamation laws, which could well 
remain constitutional.  Consider what the Chief Justice and Justice 
Scalia said:

    CHIEF JUSTICE ROBERTS: Well, no, but a defamation action, people sue
    everybody all the time. No one's going to take that seriously. In
    fact, it's probably going to redound to the benefit of SBA and COAST
    to say the congressman is, you know, bringing a defamation action.
    It highlights it, but it's another thing to have the State involved
    making a determination that there's probable cause that you lied.

    JUSTICE SCALIA: The mere fact that a private individual can chill
    somebody's speech does not say, well, since a private individual can
    do it, you know, the ministry of truth can do it. That's not that's
    not the law.

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Posted in campaigns <http://electionlawblog.org/?cat=59>, Supreme Court 
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On 4/22/14, 12:11 PM, Scarberry, Mark wrote:
>
> Wow! The Justices' questions appear to show overwhelming (and I think 
> unanimous as far as the Justices who participated) support for 
> petitioners.  I could be wrong, but I don't think a single Justice 
> asked a question that indicated serious sympathy for the Ohio 
> commission's position. You aren't supposed to draw conclusions from 
> oral arguments, but is this case the exception to that rule?
>
> Mark
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
> *From:*law-election-bounces at department-lists.uci.edu 
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of 
> *Rick Hasen
> *Sent:* Tuesday, April 22, 2014 10:54 AM
> *To:* law-election at uci.edu
> *Subject:* [EL] Susan B. Anthony case transcript
>
>
>     Transcript in Susan B. Anthony Case
>     <http://electionlawblog.org/?p=60733>
>
> Posted on April 22, 2014 10:53 am 
> <http://electionlawblog.org/?p=60733>by Rick Hasen 
> <http://electionlawblog.org/?author=3>
>
> Read it here. 
> <http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-193_n6o1.pdf>
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60733&title=Transcript%20in%20Susan%20B.%20Anthony%20Case&description=>
>
> Posted inUncategorized <http://electionlawblog.org/?cat=1>
>
>
>
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu  <mailto:rhasen at law.uci.edu>
> hhttp://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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