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

As I had predicted, the Supreme Court has unanimously reversed the Sixth Circuit in the Susan B. Anthony case 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,” 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 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?, 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 and other precedent.  Today’s Susan B. Anthony 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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