Best test for campaign speech is ballot box

Ohio has a statute (as do other states) that provides both administrative and criminal remedies against persons knowingly making false statements to influence an election. Claims are filed with the state Elections Commission, which must investigate and adjudicate. During the 2010 election season, Ohio Rep. Steven Driehaus, running for reelection, filed a claim against a pro-life advocacy group, the Susan B. Anthony List (SBAL), asserting that it had sponsored advertisements opposing his candidacy containing false statements.

The Ohio law has generated a great deal of criticism and controversy, with opponents asserting that it violates First Amendment freedom of speech. Although Driehaus lost his election and withdrew his complaint, SBAL filed its own lawsuit, claiming that the law is unconstitutional, and could be applied against it in the future.

Dismissed below, the case was argued earlier this year in the U.S. Supreme Court. There was widespread hope that the court would take advantage of the occasion to strike a blow for free speech, and find that the law violated of the First Amendment's guarantee.

But the 6th U.S. Circuit Court of Appeals decision from which the appeal to the Supreme Court was taken was not on the merits of the case, but a holding that SBAL lacked standing to challenge the law in federal court. Since there was no complaint pending at the time, the court found the claim not to be ripe for adjudication.

Article III of the U.S. Constitution limits the jurisdiction of the federal courts to "cases and controversies." This has been interpreted to require that to bring a complaint in federal court, a plaintiff must meet the requirements of standing, summed up as a three-part test: injury-in-fact, causation and redressability. In addition, the case must not be moot, nor may the claim be unripe. (There are other limitations, not germane here, including the "political question" doctrine, and the recently added additional test of "plausibility.")

The 6th Circuit ruled that the case failed the test of ripeness, since no charge is currently being made against SBAL at the present time. That holding rejected the counterargument that a party has in fact suffered an injury if required to labor under the threat that an invalid or unconstitutional law may be asserted against it. SBAL argued that it intended to make the same or similar claims in the future, and should not have to operate under the threat of action under an unconstitutional law.The Supreme Court has, over the years, adopted a number of tests in deciding whether the prospect of prosecution is, in any given case, sufficient to meet injury-in-fact or ripeness standards. Although the doctrine has not been consistent, cases have held that a "substantial risk" of prosecution is sufficient to justify pre-prosecution review.

Writing for the unanimous court, Justice Clarence Thomas noted that there were two threats constituting cause for concern under the law: administrative action and criminal prosecution. He concluded that "the combination of these two threats suffices to create an Article III injury under the circumstances of this case." Finding a "credible threat of enforcement," the 6th Circuit's holding that the case is unripe was reversed. The claim can now go to trial in district court. Susan B. Anthony List v. Driehaus, 2014 DJDAR 7563 (June 16, 2014).

Standing can, of course, be regarded as a neutral doctrine, applying to all plaintiffs, regardless of the nature of their claim. In fact, it has in many cases been used by the government to avoid a court test of a government action or program, simply by keeping plaintiffs out of court. Last year's decision in Clapper v. Amnesty International denied standing to journalists, lawyers and others who claimed that the global wiretapping of the National Security Administration violated the Constitution. (Dissenting minorities in standings cases often accuse the majority of being motivated to dismiss on the basis of lack of sympathy with the plaintiff's position.)

Although the standing holding brought the case to the Supreme Court, the argument there included recognition of the constitutional issues raised by the Ohio law, with references to its chilling effect on speech. Among the questions from the court, Justice Anthony Kennedy asked counsel defending the law, "Don't you think there's a serious First Amendment concern with a state law the requires you to come before a commission to justify what you are going to say and which gives the commission discovery powers to find out who's involved in your association, what research you've done, etc.?" Both the justices and counsel referred to the notorious "ministry of truth" in George Orwell's "1984."

The ruling in Driehaus will now allow a test of the constitutionality of the Ohio law. Although the court did not rule on the substantive constitutionality issue, it did refer to the fact that petitioner's intended speech is on political subjects, and therefore involves a constitutional interest. The opinion recites that the law "sweeps broadly." And the opinion notes that the law in question has been invoked on many occasions, and that claims can be brought by any person, are easy to file, and are expensive and time-consuming to defend. The facts suggest that filing claims of false statements is a technique used to hinder an opponent's campaign, rather than to correct a factual error.

Thomas' opinion further notes that the burdens imposed on electoral speech, if commission proceedings are brought, are of special concern because a political opponent has the power to tie up the opposition "without even having to prove the falsity of a statement."

These are just criticisms, relevant to the ripeness decision but equally applicable to the decision on the merits of the claim of unconstitutionality when the substantive challenge is heard.

Hopefully the resolution of the First Amendment issue will be that in a republic, the best test of campaign speech is at the ballot box. State involvement in determining whether a statement is true of false interferes with the give-and-take of a campaign, in which the voters are the best, and should be the only judges, of what has been said during the campaign.