[EL] Susan B. Anthony case transcript

Tue Apr 22 12:51:55 PDT 2014

For those of you who don't want to read the whole thing, here are some highlights, which I'll post on our blog shortly.

Carvin (on the Catch-22 standard by the Appeals court):
15 Before the campaign it will be premature.  During the
16 enforcement proceeding, Federal courts have to abstain
17 under Younger.  And afterwards, it'll be deemed moot,
18 and then no  no possibility of capable of repetition
19 yet evading review.  So you have this  this regime
20 which has existed for decades in Ohio, where they
21 continue to impose very serious burdens on speakers on
22 what we consider a facially unconstitutional law, yet it
23 has consistently evaded judicial review precisely
24 because of the short time frames of the election

[the Appeals Court] put us in this Catch 22 endless cycle of
18 suppressing speech, deterring speech, chilling speech,
19 but never being able to get to a court to adjudicate our
20 First Amendment [rights]

Here the Solicitor General is arguing and it triggers a response from Roberts:

13  CHIEF JUSTICE ROBERTS:  Is that a realistic
14 proposition?  I mean, first of all, in the first place,
15 surely you don't expect them to come in and say, I'm
16 going to say something totally false and I'm afraid I
17 might be prosecuted for that.  But then you have to say
18 they have  you would never imagine that somebody else
19 might think in a hotly contested election that their
20 speech is false?

4  CHIEF JUSTICE ROBERTS:  How many proceedings
5 have been brought under this Ohio statute?
6  MR. FEIGIN:  So under the Ohio statute
7 between 2001 and 2010, according to the statistics in
8 the green brief by the Ohio Attorney General, it's a
9 little bit over 500.  And that's just for violations of
10 this FalseStatement Law or asserted violations of this
11 FalseStatement Law.

When Ohio is defending the law:

11  JUSTICE SCALIA:  Well, but the criminal
12 prosecution isn't all that they're complaining about.
13 They're complaining about having  having to be dragged
14 through this same  this same proceeding next time in
15 the midst of an election campaign, and however minimal
16 the finding that is ultimately made may be, they are
17 going to be subject, for sure, to that proceeding in the
18 next election campaign.
19  And I don't care if all the commission says
20 is, you know, there is some reason to believe that they
21 were lying.  Even if it's that minimal, you are forcing
22 them, and it is pretty sure that it's going to happen
23 because somebody will complain, the candidate they are
24 criticizing, you are forcing them to go through this
25 procedure in the midst of an election campaign, right?

15  JUSTICE KENNEDY:  Well, but this is a point
16 brought up by Justice Scalia's question as well.  Don't
17 you think there's a serious First Amendment concern with
18 a state law that requires you to come before a
19 commission to justify what you are going to say and
20 which gives the commission discovery power to find out
21 who's involved in your association, what research you've
22 made, et cetera?

4  JUSTICE BREYER:  Why can't a person say, you
5 know, there are things I want to say politically, and
6 the Constitution says that the State does not have the
7 right to abridge my speech, and I intend to say them.
8 And if I say them, there's a serious risk that I will be
9 had up before a commission and could be fined.  What's
10 the harm?  I can't speak.  That's the harm.  Right?  So
11 why isn't that end of the matter?
12  MR. MURPHY:  Well, the Court  the Court 
13 the Court  has repeatedly said that chilling effect by
14 itself is not the harm.  The relevant harm in your hypo
15 would be 
16  JUSTICE BREYER:  Why shouldn't it be the
17 harm?  That is, whatever  has any case said when
18 somebody says, you want to speak in a campaign, and we
19 have a law here that if you do we will throw you in jail
20 and you really do want to speak and the law really does
21 prevent you from speaking, why shouldn't that be the end
22 of it?
23  MR. MURPHY:  Well, remember the test has to
24 be a credible threat of prosecution.  What the Court 
25  JUSTICE BREYER:  Well, I'm saying is there a
1 statute  not a statute.  Is there a case which says
2 the little syllogism I just went through is not the law
3 of the United States?  Now, there may be.  That's why I
4 asked the question.

14  JUSTICE GINSBURG:  Mr. Murphy, you said
15 there was no credible threat of prosecution, but what
16 about the harm that is occurring?  Mr. Carvin said it's
17 a very short time.  They're brought before the
18 commission, they have to answer this charge that they
19 lied, that they made a false statement.  And that just
20 that alone is going to diminish the effect of their
21 speech because they have been labeled false speakers,
22 and it costs money to defend before the commission,
23 right?  That's not 

 JUSTICE KAGAN:  Well, I'm not sure it's a
7 reputational harm.  I mean, why isn't, as Justice
8 Ginsburg suggested, the relevant harm the probable cause
9 determination itself?  There are voters out there and
10 they don't know that probable cause is such a low bar as
11 you describe it.  They think probable cause means you
12 probably lied, and that seems a reasonable thing for
13 them to think and that's a relevant harm and we
14 should just  you know, we don't even need the
15 prosecution to serve as the relevant harm.  That seems
16 quite enough.

12  CHIEF JUSTICE ROBERTS:   I'm not going to
13 let you put your sign up on my billboard, I might be
14 liable.  So, I mean, they may have a certain fortitude
15 and proceeding based on all the reasons that you've
16 given, but they need third parties to help carry out
17 their message and there is no reason to think those
18 third parties have any commitment to their political
19 message at all and the slightest whiff of, oh, this is
20 going to be legal trouble, they say, forget about it.

6  CHIEF JUSTICE ROBERTS:  Well, no, but a
7 defamation action, people sue everybody all the time.
8 No one's going to take that seriously.  In fact, it's
9 probably going to redound to the benefit of SBA and
10 COAST to say the congressman is, you know, bringing a
11 defamation action.  It highlights it, but it's another
12 thing to have the State involved making a determination
13 that there's probable cause that you lied.
14  JUSTICE SCALIA:  The mere fact that a
15 private individual can chill somebody's speech does not
16 say, well, since a private individual can do it, you
17 know, the ministry of truth can do it.  That's not 
18 that's not the law.

2  JUSTICE KENNEDY:  There's a curious
3 inversion here.  Usually we're concerned about citizen
4 suits, too many people can challenge  challenge the
5 law.  Here we're concerned that many, many citizens can
6 bring the challenge against the candidate.  So it's
7 somewhat reversed.  In other words, you have tens of
8 thousands of private attorney generals waiting to pounce
9 and get these people before the commission and have to
10 follow discovery orders.

JUSTICE ALITO
8 ...... So you have a system that
9 goes on and on, year after year, where arguably there's
10 a great chilling of  of core First Amendment speech,
11 and yet you're saying that basically you can't get into
12 Federal court.

Kagan follows up:

18  JUSTICE KAGAN:  Well, but why wouldn't it
19 get into Federal court?  I mean, your own office
20 expresses grave concern about the constitutionality of
21 this statute.  So that suggests somebody should be able
22 to get into Federal court to do this.  But I don't see a
23 way where you would allow a preenforcement challenge.
24 One would have to go through the entire process and get
25 to the end of it and get a judgment to enable a
1 challenge under your theory; is that right?

 JUSTICE SOTOMAYOR:  But how are you going to
7 prove  how are you ever going to prove that one false
8 statement cost somebody an election?

Carvin reserved some of his time and summed up.

14  MR. CARVIN:  A few brief points.  I think
15 the key point to take away from the colloquy with
16 Mr. Murphy is that when he was asked, How do you bring a
17 preenforcement challenge, his only solution was to
18 admit you're lying before you speak.  Well, obviously
19 that completely defeats the value of your speech.  No
20 speaker is ever going to do it.  You're not going to
21 confess to a crime before you speak.

12  If the Court would just look at them,
13 Browskins and Citizens United, those cases articulate as
14 well as any can, when you are making a facial challenge
15 to a First Amendment, the last thing you want to do is
16 abstain to State court judges because you actually
17 exacerbate the constitutional injury through the delay
18 and the fact that you've got to go through declaratory
19 judgments, when our entire point is it's
20 unconstitutional for us to say, "Mother, may I?" before
21 we speak.

12  So we're facing a credible threat.  We ask
13 the Court to lift this yoke so that we can become full
14 participants in the next election cycle.

David
_________________________________________________
David Keating | President | Center for Competitive Politics
124 S. West Street, Suite 201 | Alexandria, VA 22314
703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax
www.campaignfreedom.org

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 3:32 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Susan B. Anthony case transcript

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 in A 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.

[cid:image001.png at 01CF5E42.A4116690]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60735&title=Thoughts%20on%20Today%E2%80%99s%20SCOTUS%20False%20Speech%20Case&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>

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> [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<mailto: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>
[cid:image001.png at 01CF5E42.A4116690]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60733&title=Transcript%20in%20Susan%20B.%20Anthony%20Case&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

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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<mailto:rhasen at law.uci.edu>

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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<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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