[EL] Susan B. Anthony case

[Rick Hasen]

  Analysis: #SCOTUS Unanimously Reverses in Susan B. Anthony Case

Posted on June 16, 2014 7:09 am <http://electionlawblog.org/?p=62377>by 
Rick Hasen <http://electionlawblog.org/?author=3>

As I had predicted <http://t.co/rH7Cer0sNP>, the Supreme Court has 
unanimously reversed the Sixth Circuit in the Susan B. Anthony case 
<http://www.supremecourt.gov/opinions/13pdf/13-193_omq2.pdf> involving 
false campaign speech.

I have now had a chance to read the short (18 page) unanimous opinion by 
Justice Thomas. As I expected in a post entitled "No, the Supreme Court 
Probably Won't Address the Right to Lie in Campaigns Tomorrow," 
<http://electionlawblog.org/?p=60708> the Court did not reach the merits 
of the constitutionality of Ohio's law, which imposes some penalties on 
false campaign speech. the Court held only that Susan B. Anthony's case 
against constitutionality can go forward, even though the complaint 
against it had been dropped. (Actually, the Court didn't even decide 
that the case necessarily goes forward; the Court ordered the case back 
to the lower courts where further questions about whether the lower 
courts can hear the case may be considered).

This is the right result here: as I've written, getting a probable cause 
determination against someone at the Ohio Elections Commission is a real 
injury which has serious political consequences.

As for the larger significance of the case: the case may well make it 
marginally easier for plaintiffs to bring suit against claims that 
federal courts don't have jurisdiction to hear a case (see Josh 
Blackman's post here 
<http://joshblackman.com/blog/2014/06/16/ripeness-and-standing-boil-down-to-the-same-question/>on 
the conflation of standing and ripeness). Maybe it took a case against a 
conservative group to get the conservative Justices on board with this 
correct result to make it easier to sue.

As far as the underlying constitutionality of false campaign speech 
laws, /Susan B. Anthony/ says little. The closest Justice Thomas for the 
Court comes to the merits is this statement on the nature of the group's 
injury:

    The burdens that Commission proceedings can impose on electoral
    speech are of particular concern here. As the Ohio Attorney General
    himself notes, the "practical effect" of the Ohio false statement
    scheme is "to permit a private complainant . . . to gain a campaign
    advantage without ever having to prove the falsity of a statement."
    DeWine Brief 7. "[C]omplainants may time their submissions to
    achieve maximum disruption of their political opponents while
    calculating that an ultimate decision on the merits will be deferred
    until after the relevant election." Id., at 14--15. Moreover, the
    target of a false statement complaint may be forced to divert
    significant time and resources to hire legal counsel and respond to
    discovery requests in the crucial days leading up to an election.And
    where, as here, a Commission panel issues a preelection
    probable-cause finding, "such a determination itself may be viewed
    [by the electorate] as a sanction by the State." Id., at 13.
    Although the threat of Commission proceedings is a substantial one,
    we need not decide whether that threat standing alone gives rise to
    an Article III injury. The burdensome Commission proceedings here
    are backed by the additional threat of criminal prosecution. We
    conclude that the combination of those two threats suffices to
    create an Article III injury under the circumstances of this case.

In my article, A Constitutional Right to Lie in Campaigns and Elections? 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>, I have 
suggested that laws like Ohio's establishing "truth commissions" (which 
Justice Scalia at oral argument sarcastically referred to as "ministries 
of truth") with criminal penalties for lying in campaigns could well be 
unconstitutional under the Supreme Court's recent /U.S. v. Alvarez/ case 
<http://www.law.cornell.edu/supremecourt/text/11-210> and other 
precedent.  Today's /Susan B. Anth//ony/ case does not do much on the 
merits of the question, but it marginally reenforces the idea that the 
Supreme Court could eventually strike laws like this down.

Stay tuned over the next few years.

[This post has been updated.]

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On 6/16/14, 7:10 AM, Rick Hasen wrote:
>
>
>     Breaking News: #SCOTUS Unanimously Reverses in Susan B. Anthony
>     Case <http://electionlawblog.org/?p=62377>
>
> Posted on June 16, 2014 7:09 am 
> <http://electionlawblog.org/?p=62377>by Rick Hasen 
> <http://electionlawblog.org/?author=3>
>
> As I had predicted <http://t.co/rH7Cer0sNP>, the Supreme Court has 
> unanimously reversed the Sixth Circuit in the Susan B. Anthony case 
> <http://www.supremecourt.gov/opinions/13pdf/13-193_omq2.pdf> involving 
> false campaign speech.
>
> [This post will be updated with analysis after I read the opinion.]
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62377&title=Breaking%20News%3A%20%23SCOTUS%20Unanimously%20Reverses%20in%20Susan%20B.%20Anthony%20Case&description=>
> Posted in campaigns <http://electionlawblog.org/?cat=59>, Supreme 
> Court <http://electionlawblog.org/?cat=29>
>
> -- 
> 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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-- 
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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