SUSAN B. ANTHONY LIST v. DRIEHAUS
Prior to the 2010 general election, Susan B. Anthony List (SBA List), a nonprofit, pro-life organization, announced that it intended to put up a billboard in the district of then-Congressman Steven Driehaus. The planned billboard would have asserted that Driehaus’s vote in favor of the Affordable Care Act amounted to a vote in favor of taxpayer-funded abortion. Citing threats of legal action by Driehaus’s counsel, the company that owned the billboard space refused to put up the ad. Driehaus filed a complaint with the Ohio Elections Commission alleging that SBA List violated Ohio’s campaign laws by making false statements about his voting record. SBA List filed an action in federal district court arguing that the Ohio statutes infringed upon its rights to free speech and association under the First Amendment. Driehaus withdrew his complaint upon losing his bid for re-election and subsequently moved to Swaziland for an assignment with the Peace Corps. The district court dismissed the suit by SBA List for lack of standing and ripeness. The U.S. Court of Appeals for the Sixth Circuit affirmed.
(1) Did the U.S. Court of Appeals for the Sixth Circuit err in holding that the advertising company’s rejection of the proposed billboard and the Commission’s actions against SBA List do not demonstrate an imminent threat of future prosecution sufficient to establish ripeness under Article III?
(2) Did the U.S. Court of Appeals for the Sixth Circuit err in holding that state laws prohibiting false political speech are not subject to pre-enforcement First Amendment review as long as the speaker maintains that the statements are factually true?
Legal provision: Article III, Constitution (justiciability)
Yes. Justice Clarence Thomas wrote the opinion for the unanimous Court. The Court held that pre-enforcement challenges are justiciable when circumstances indicate that threatened enforcement of the statute is sufficiently imminent. If the threatened enforcement is sufficiently imminent, the petitioners have alleged sufficient injury for Article III standing and justiciability. In this case, the petitioners’ political speech focused on the issue of support for the Affordable Care Act, not simply on Driehaus, and thus was likely to continue despite Driehaus’ departure. The Court determined that there was a threat of future enforcement even though petitioners maintained their statements were true. Moreover, because the respondents did not disavow enforcement if petitioners carried out their speech in the future, the Court held that the prospect of enforcement was not “imaginary or speculative” and that petitioners had shown sufficient injury for pre-enforcement review. The Court also held that the petitioners’ suit was prudentially ripe because their challenge was purely legal, the issue would not be clarified by future factual development, and denying prompt judicial review would force them to choose between refraining from political speech or risking burdensome Commission proceedings and criminal prosecution.
ORAL ARGUMENT OF MICHAEL A. CARVIN ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 13-193, Susan B. Anthony List v. Steven Driehaus.
Michael A. Carvin: Mr. Chief Justice, and may it please the Court:
Under this Court's great forward precedent, this case presents a clearly right and justiciable controversy.
All agree that the test is whether or not there's a credible threat of enforcement.
Here we know THAT there's a credible threat of enforcement because the Commission's Probable Cause panel in 2010 said that the speech at issue probably violated Ohio's false statement law.
Since an enforcement agency has already told us that this statement probably violates their law, we obviously face a clear and very credible threat of enforcement if we repeat those statements as we alleged we would do.
Justice Ruth Bader Ginsburg: Are you making that argument on behalf of the other organization?
Susan B. Anthony List, you have accurately described what occurred.
But the other organization has never been charged before the Ohio Election Commission.
Is there any reason to believe anybody's going to lodge a complaint against it?
Michael A. Carvin: Well, Your Honor, when they filed their complaint, they alleged that they had not spoken those words because Susan B. Anthony had already been drawn into the Commission's procedures and the Commission had already found probable cause.
Justice Sonia Sotomayor: How is that any different from -- how is that any different from the people in Younger, who the Court dismissed as having no standing because they hadn't been prosecuted despite the same identical claim?
They were chilled, they might intend to do something similar, et cetera.
Michael A. Carvin: --Well, as Justice Brennan put it in Younger, the -- the speech that the other three speakers were going to engage in was not even of the same genre as that of the person who would be -- was being prosecuted, which is why the Court, quite correctly said, that their chilling effect was based on an imaginatory or speculative fear of enforcement.
Whereas here, COAST was going to say precisely the same words that SBA had already been found to have probably violated the False-Statement Law.
So it's hard to imagine or--
Justice Ruth Bader Ginsburg: I thought that the Court in Younger said with respect to those other three, that they had never been threatened with prosecution.
I don't recall it making a distinction on the basis of what they wanted to talk about.
Michael A. Carvin: --Well, two of the people were labor picketers that had never been threatened and one was somebody who was simply teaching Marx in a classroom environment.
They were quite distinct from the speaker who had been prosecuted under the incitement to violence law.
And, again, Justice Brennan looked at their statements, compared them to the statements of the person who had been prosecuted and said they're not even of the same genre.
So we're not arguing that somebody could come in here and argue that anything that's controversial creates a credible threat of enforcement, but we've got a very specific concrete example.
Speaker A says X, that's found to have a probable cause.
Speaker B quite reasonably thinks if they've just dragged Speaker A in front of this Commission and the Commission has found probable cause, there's no reason in the world to think that we won't be brought in.
Justice Ruth Bader Ginsburg: But the one question is who is the "they"?
Now, it might be that Susan B. Anthony List is considered a group with real clout.
So a candidate might be really concerned about Susan B. Anthony's speech.
But the other organization maybe is not as well funded and the candidate says, well, a lot of things are said in political campaigns.
I'll let this one go.
This one doesn't hurt me as much.
Michael A. Carvin: Two points, Justice Ginsburg.
First, Driehaus had shown a very -- he was in the middle of a very tough reelection campaign and he had shown he was going to take all the steps he could to squelch this notion that he supported taxpayer abortions.
He had already spent all the money in terms of SBA list.
So it literally -- all he'd have to do is Xerox it to -- to come after COAST.
But I think the key point here is we don't have to negative every conceivable hypothetical on why Driehaus might not do this, and the Commission might not do that.
There's a presumption that if you have violated the laws as the Probable Cause Panel said we probably had, that the agency is going to enforce the law.
If you require us to negative every hypothetical, then the only way to test that hypothesis is to engage in the speech and--
Justice Sonia Sotomayor: How do you square this with Clapper?
Michael A. Carvin: --I apologize.
Justice Sonia Sotomayor: Why isn't this as speculative as Clapper?
You have to assume first that there's a candidate who is going to react by initiating an action, you have to assume further that a panel is going to render the same decision, and you have to assume even further that a Federal prosecutor -- that the prosecutor is going to agree and actually bring the case.
Michael A. Carvin: Well, those are the steps that are required to put my clients in jail.
But we suffer Article III injury well before any prosecutor prosecutes us.
Once a complaint is filed, then we are subjected to very serious costs and risks of litigation in front of the Commission, and in the middle of an election campaign during the crucial weeks when we're trying to get our speech out.
Justice Anthony Kennedy: And I take it that's -- that's enforced by subpoenas.
If the speaker doesn't want to appear before the Commission, he can be served with a subpoena, which is judicially enforceable.
Michael A. Carvin: There's -- there's two things, Justice Kennedy.
At the initial stage, if we don't respond to the complaint, the Commission's regulations make it clear that they may well view that as a default judgment and -- and enter a judgment against us right away.
Once the probable cause determination comes down, you have all of these kinds of subpoenas and very intrusive discovery of the sort you had in our case where they ask for our communications with everybody on the right wing of the political aisle, where we have to reveal our internal communications as well as those of others.
Justice Anthony Kennedy: Now, the State can characterize its own position, but do you understand the State to say that well, the existence of the Commission means that frivolous claims can be washed out, that they can actually get some protection by an advance ruling.
Is that the State's position?
Michael A. Carvin: No.
Neither the Commission has argued that, and the Attorney General's amicus on our side makes it quite clear that there is no provision for doing it.
If you read their rules, they have to go to a probable cause hearing in three days.
There's literally no opportunity to wipe out so-called frivolous claims.
Justice Anthony Kennedy: But I mean, I thought -- I thought their position was that this would -- would sharpen the controversy and make it more concrete or something like that.
Michael A. Carvin: That's precisely right.
They're arguing -- the whole point of this statute is some kind of truth-telling function, so they want us to--
Justice Ruth Bader Ginsburg: There is a provision for an advisory opinion, and that's a question that you are arguing strenuously that this statute violates the Constitution.
You could have asked the Commission for an advisory opinion saying that the statute can't be enforced, but you didn't do that.
Michael A. Carvin: --No, we didn't because we think that's unconstitutional.
Our constitutional claim here is the ministry of truth has no ability to judge our political speech as falsity.
So obviously, we wouldn't have subjected ourselves voluntarily to the ministry of truth before we decided to challenge their constitutional validity.
Then we would have been inflicting the constitutional injury on ourselves.
Justice Elena Kagan: Mr. -- please.
Michael A. Carvin: I was just going to say, even the Commission recognizes that the declaratory judgment advisory opinion procedure doesn't work in the heat of an election campaign as it was here.
Justice Elena Kagan: Is -- is your argument dependent on the following two facts: The first that there was a probable cause determination, and the second that the Susan Anthony group and the other group wanted to repeat the exact same statement?
Are those the two things that -- that ground your argument?
Michael A. Carvin: --We -- we think that makes it all -- all but dispositive, yes.
That it's possible not to find a credible threat given those two facts.
They had found this speech probably violated the Ohio election statute.
And two, we were going to say exactly the same thing.
Justice Elena Kagan: So if -- I'm sorry.
Michael A. Carvin: --Well, I just want to make it clear that the threat of enforcement is particularly acute here because not only is -- is enforcement power handed to a group of elected officials with certain ethical and political accountability things.
Any one of our political opponents is -- is empowered under the statute to bring us in front of the Commission.
So all they have to do is Xerox the Driehaus complaint, Xerox the probable cause finding, and Xerox a district court finding that said our speech was untrue.
So since there is millions of people who were deputized under the statute, who have every political motivation to squelch our speech in -- before a campaign, then I think--
Justice Elena Kagan: But that would suggest something even broader.
That would suggest that even in the first instance, before the probable cause determination was made, Susan Anthony would know that it's going to be speaking about a very controversial subject in which some people will think it's telling the truth and other people will think it's lying, and that there's a very good chance that somebody is going to bring this to the Commission.
So that would suggest that they have standing even at that moment before the initial probable cause determination is made.
Michael A. Carvin: --Justice Kagan, we can agree that given the amorphous nature of this prohibition in the false statement, it's difficult to predict in advance who and when is going to do it.
But to return to my prior answer, all of that ambiguity is gone once the expert agency has already told you that there's a probable cause to believe it violates it.
So this separates us from every other speaker who is simply concerned that they will be brought in front of the Commission.
We have an identifiable track record that we have been brought in front of the Commission.
And in that regard, I would point out that the Secretary of State is obliged to refer anything to the Commission if he has -- should know that there's a violation.
Well, in the wake of the Probable Cause Panel's prior probability determination, it would seem that he's either ethically obliged to file a complaint against us or at least there's a very high likelihood that he would.
And, again, I don't want us to lose sight of the other side of the calculus, which is that if -- if we have to prove all of these hypotheticals with certainty, if we have to engage in more the presumption that the State will enforce its own laws, you have created an insoluble dilemma for speakers, because you have -- you have conditioned their access to the political marketplace of ideas on a very serious threat of being dragged into this process.
Justice Sonia Sotomayor: Well, let me ask you something going back in part to Justice Kagan.
Basically, as a bottom line, you think there's nothing that could be salvaged from this process.
Presumably, you think that even if your client speaks a falsehood, it still chills improperly.
Michael A. Carvin: We think that if the commission is going to drag us in front of them to justify our political speech to a bunch of State officials that they -- that is, A, Article III cognizable injury, and B, unconstitutional.
I was explaining to Justice Ginsburg--
Justice Antonin Scalia: You're -- you're not asking us to resolve the constitutional question, just the question of whether you can raise the Constitution.
Michael A. Carvin: --All we're trying for is our day in court so that we can make this argument.
And I was just explaining to Justice Ginsburg that that's a reason we wouldn't voluntarily invoke a procedure that we are about to challenge as constitutional.
It would be cutting off our nose to spite our face.
And -- and I also would like to point out that this is election speech.
And -- and that has two very significant components to it.
One is that it's obviously the core of the First Amendment.
This is how we choose our representatives in our democracy.
But it also has an extraordinarily short shelf life.
No one is listening to election speech hardly at all 60 days before an election, and the day after the election no one either speaks or listens.
So you have about a 2-month window where you can make these election speech points, which means two things.
One is any distraction during that crucial period, as this Court noted in Wisconsin Right to Life, really does constitute a serious Article III injury.
But the other point is you're never going to be able to adjudicate it within that 60-day window, right?
You're never going to go from complaint to final judgment, which means that the speech will become arguably moot after the election, in which case you go to the capable of repetition yet evading review exception to mootness, which is essentially the same kind of prediction of future activity that's implicated here.
If you adopt the extraordinarily Draconian requirements that the Sixth Circuit imposed on credible threat, this means that you will literally never be able to challenge restrictions on election speech, right?
Before the campaign it will be premature.
During the enforcement proceeding, Federal courts have to abstain under Younger.
And afterwards, it'll be deemed moot, and then no -- no possibility of capable of repetition yet evading review.
So you have this -- this regime which has existed for decades in Ohio, where they continue to impose very serious burdens on speakers on what we consider a facially unconstitutional law, yet it has consistently evaded judicial review precisely because of the short time frames of the election--
Justice Ruth Bader Ginsburg: Why did -- why did you say it would be found capable -- not capable of repetition?
It seems to me that you were quite right to say before that this is most capable of repetition.
Michael A. Carvin: --Oh, if you accept our view of credible threat, then -- then you're -- you're entirely right, we would -- we would satisfy both the ripeness standard and the capable of repetition yet evading review standard.
What I was trying to point out was that if you adopt the what we consider absurdly high straitjacket that the Sixth Circuit imposed on speakers trying to bring pre-enforcement challenges in the First Amendment context, that will essentially guarantee that these things are never brought, because by the time the election is done then you will have a mootness argument and you won't be able to satisfy the capable of repetition yet evading review standard.
So you will -- you will have put us in this Catch 22 endless cycle of suppressing speech, deterring speech, chilling speech, but never being able to get to a court to adjudicate our First Amendment--
Justice Anthony Kennedy: Your best cases you think are Steffel and Thompson and Babbitt?
Are there others that are more--
Michael A. Carvin: --Well, Babbitt is certainly the most on point because there the prohibition was, like ours, was saying something untrue, something false.
And it's very important to note that the plaintiff in Babbitt neither specified what they were going to say in the future; it didn't specify what company it was going to bring this consumer publicity campaign against; and it expressly disavowed any intention to say anything false.
But nonetheless, the Court found that
"a credible threat was certainly impending. "
was the phrase they used.
And I also think the Court's recent decision in Holder is -- is quite on point there.
There the plaintiffs didn't say that they were subject to the statute.
They adamantly denied that the statute even read -- reached them.
They weren't bringing a facial challenge as we are.
They were bringing an as-applied challenge to the statute and there had never been a prior threat by any expert agency that their activities were going to be monitored.
I think American Booksellers is an excellent case as well, Justice Kennedy.
There there had been no argument -- there had been no prior threat of enforcement.
The State absolutely denied--
Justice Sonia Sotomayor: So please -- please define for me the rule you'd like us to announce?
What's a credible threat?
Michael A. Carvin: --The narrowest rule, and the only rule we need to survive, is that if the enforcement agency has previously announced that your speech probably violates the law at issue, then you have a credible threat of future enforcement if you repeat that speech.
Justice Sonia Sotomayor: Do we need them to say they are going to, even though the person who they said it against is not running again?
Michael A. Carvin: --Oh.
Well, two points on that.
Justice Sonia Sotomayor: And how do you deal with Golden, in other words?
Michael A. Carvin: Oh, yeah.
Well, Golden was very simple.
All the speaker there was concerned about was that one representative.
We are not concerned about Representative Driehaus as such.
We're concerned about people who supported the ACA's taxpayer-funded abortion, which is a politically salient issue to this day.
We mentioned Representative Kaptur as well as Representative Driehaus in one of the false statements that's already been brought in front of the commission.
And in 2010, Sherrod Brown was on the ballot for the Senate and he also was an ACA supporter.
So our complaint was not candidate specific.
It didn't turn on any personal attribute of Representative Driehaus.
It turned on people who were supporting the ACA because of its taxpayer funding abortion provisions.
And that remained politically salient and candidates who had engaged in precisely the same act as Representative Driehaus were on the ballot again in -- in 2012.
So that -- that is our basic argument.
Justice Sonia Sotomayor: So that you've been prosecuted before and that you are intending to do the identical speech against others.
Michael A. Carvin: A preliminary finding and identical speech we think more than satisfies the credible threat thing for the reasons I was articulating to Justice Kennedy a few moments ago.
We think this far exceeds the showing that was required in Holder, Babbitt, American Booksellers, and a number of other cases as well.
Justice Ruth Bader Ginsburg: Do you think this is a matter of standing or ripeness?
The Sixth Circuit said ripeness.
Michael A. Carvin: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context.
No question that we are being subject to something.
I think the question is whether or not the threat is sufficiently immediate.
I think people tend to think about that as a ripeness issue, but I think all of the Court's teachings on standing and immediacy of injury from the standing cases apply equally here.
So I would view standing and ripeness in this context as essentially coextensive.
And I think the Sixth Circuit was wrong for both reasons.
Chief Justice John G. Roberts: Do you want us to just forget about the disclaimer issue and the commission procedure issue or even the as-applied issue?
I got the sense from particularly footnote 7 in your reply brief that you're happy to just have those taken off the board.
Michael A. Carvin: Well, can we take them one at a time?
The disclaimer issue, Ohio agreed with us.
So I think they took that off the table.
The procedure issue is inextricably intertwined with our Alvarez argument, that being subject to a process where the -- the State is determining the truth of our speech, we weren't saying the procedures in the abstract were problematical.
In terms of the as-applied challenge, we do disagree with the Solicitor General.
We think that's certainly fit for review just as the as-applied challenge was in Holder and in American Booksellers and in Babbitt.
I do in candor, and I think this is what the footnote the Chief Justice was referring to goes to -- as a practical matter, we don't care.
Frankly, the as-applied challenge was basically saying, look, even if -- even if the law is constitutional as applied to basic assertions of fact, it's not constitutional as applied to opinions.
We think Alvarez has essentially eliminated that distinction because the speech at issue in Alvarez was a pure assertion of fact.
Frankly, the district court that we're going to go back to if we prevail here has already ruled that our interpretation of the ACA was an assertion of fact.
So as a practical matter, it has no consequence.
We're going to go back, make a facial challenge that (B)(9) and (B)(10) are facially unconstitutional under Alvarez.
There's no -- we're not asking for any savings, constructions or -- or limited application.
So it will be a pure question of law that is fit for immediate review.
And as I say, we need -- if we do prevail here on justiciability, we need to get relief right away because we have yet another election cycle approaching.
Unless there are further questions, I'll reserve the remainder of my time.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF ERIC J. FEIGIN ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PARTIAL REVERSAL
Eric J. Feigin: Thank you, Mr. Chief Justice, and may it please the Court:
I'd like to begin, if I could, by addressing Justice Kagan's question, which Justice Sotomayor then followed up on.
We think that the probable cause finding and the fact that they want to repeat essentially the speech that was made earlier are the two critical factors in this case and without that, none of their claims would be justiciable.
As it is, we think that their purely legal First Amendment challenges are ripe for those particular case-specific reasons.
Chief Justice John G. Roberts: Well, you -- you insist that they -- there has actually been a probable cause finding that their speech would violate the law before they would have standing?
Eric J. Feigin: Not necessarily that their particular speech would violate the law, but that there have been -- without the probable cause finding, it would simply be speculative whether particular speech would actually result in any sort of enforcement proceeding.
One critical aspect of this case--
Chief Justice John G. Roberts: Even in a case like this, where the procedures can be triggered by any citizen in the State?
Eric J. Feigin: --Well, Your Honor, again, we don't think that someone can come into court and say, I want to make some speech, I don't think that speech would be violating the statute, I don't have any good evidence that anyone else thinks my speech would violate the statute or that some sort of enforcement action would be brought against me, but nevertheless, I want to get into court--
Chief Justice John G. Roberts: Is that a realistic proposition?
I mean, first of all, in the first place, surely you don't expect them to come in and say, I'm going to say something totally false and I'm afraid I might be prosecuted for that.
But then you have to say they have -- you would never imagine that somebody else might think in a hotly contested election that their speech is false?
Eric J. Feigin: --Well, Your Honor, we may be simply debating how similar the previous speech that was a subject of a probable cause finding, or that there's some other reason to believe will be the subject of an enforcement proceeding has to be to the speech that the plaintiffs allege that they intend to make.
But we definitely don't think that a plaintiff can simply come into court and say, look, I want to make this speech, I don't think it violates the law.
Justice Elena Kagan: Well, what would happen, Mr. Feigin, what would happen if a candidate knew -- it seems actually quite plausible that Representative Driehaus would know -- that this was something that Susan Anthony or some other like group would talk about in his campaign, and he were to write letters to all these groups saying, if you start advertising in this way, if you put up billboards, I'm going to take you before the Ohio Commission.
Would that be sufficient?
Eric J. Feigin: That would at least be sufficient, Your Honor, to bring a suit against Driehaus.
That would be kind of similar to the situation in MedImmune v. Genentech, which was a civil suit that the putative defendant had standing to bring a declaratory judgment action to prevent--
Justice Elena Kagan: I'm not sure I understood that.
Is it sufficient that somebody has said, I'm going to bring an action against -- before the Commission, but there's been no prior Commission determination as to this speech.
And it's just somebody saying, I'm going to go to the Commission and raise this with them if you start speaking in this way.
Would that present a credible threat?
Eric J. Feigin: --That specific threat would be enough to allow for a lawsuit.
And, Your Honor, I think there'd be a significant question whether the suit could only be brought against Driehaus, who brought the threat, or whether you could also join in the Commission.
But as a practical matter, that wouldn't really make much difference because if constitutional claims were raised in that proceeding, the district court would be obligated to inform the State of Ohio and the State of Ohio would be entitled to intervene in the litigation.
Justice Elena Kagan: Now, take it just a step further.
Surely, there are some kinds of statements or -- I don't know.
Maybe "surely" is the wrong word.
Are there some kinds of statements where, even though the -- the representative doesn't say, I'm going to do this, you know that somebody is going to do this, whether the representative or somebody else?
It's the kind of statement that, given this process, it's just going to require too much fortitude to resist the temptation to bring this in front of this Commission.
Eric J. Feigin: Well, Your Honor, I think in the absence of good evidence of an enforcement proceeding, it would simply be too speculative.
But I would add that in this particular case, the credible threat of enforcement test might be relaxed to a certain extent, because this is a private attorney general statute.
And the entire point of private attorney general statutes is to allow for enforcement in a wider range of circumstances than would be possible under most Federal laws, for example, which are enforced solely by the executive.
That might be a reason, a case-specific reason why your hypothetical might have more salience here than it would in the Federal context.
Another difference between this and the Federal context is we don't have any potential statutory barriers to bringing this action.
Congress hasn't decided to provide a cause of action only for a -- for, for example, final agency action, as it did in the Administrative Procedure Act, and it's not attempting to channel these claims through a particular agency.
Justice Ruth Bader Ginsburg: Are you arguing that the other organization, COAST, also has standing?
Because you -- you seem to require for the credible threat for there to have been a proceeding before the Commission and there's been nothing with regard to the other organization.
Eric J. Feigin: Your Honor, we don't think that the proceeding before the Commission has to involve the entity that wants to make the speech in the future.
It's enough that it involves speech similar to the speech that the plaintiff is alleging that the plaintiff intends to make.
Justice Ruth Bader Ginsburg: So how do you distinguish the three in Younger v. Harris that the Court said didn't have standing?
Eric J. Feigin: I think in the same way the Petitioners do, Your Honor, and I think that's how we reconcile the case with Steffel, where one of the factors the Court looked to, to find a credible threat of enforcement in that case was the actual prosecution of the plaintiff's hand-billing companion.
One thing I would emphasize about this case is that in this particular context, this unique Ohio scheme, the administrative proceedings before the Ohio Elections Commission are the relevant enforcement proceedings.
It wouldn't normally be the case that administrative proceedings that can result only in government speech would be considered enforcement proceedings for that purpose.
But in this particular circumstance, not only can the Ohio Elections Commission recommend a case for further prosecution, but a decision by the Ohio Elections Commission is a decision by a neutral decisionmaker following a full-dress adversary proceeding that someone has violated Ohio criminal law by knowingly misinforming the electorate in the context of a political campaign.
In that particular context, and particularly as to entities like Petitioners that engage in political advocacy on a regular basis, that kind of finding is a significant sanction.
And, in fact, the State itself views it that way in two relevant ways.
First of all, such a finding by the Commission is treated as an adverse effect for purposes of the statute that allows for judicial review.
And second of all, if you look at actual orders by the Ohio Elections Commission, they sometimes refer to the finding of a violation in particular cases as a penalty.
Before my time is up, I would like to address a few things Petitioner said about the justiciability, for example, of as-applied challenges under this Court's decision in Holder.
I think it's very significant that in Holder, the Court noted that there were -- Holder v. Humanitarian Law Project -- the Court noted that there had been 150 prosecutions brought under the statute that the plaintiffs in that case were challenging and that many of them had involved the same provision.
And we think that's a circumstance in which there would be a credible threat of prosecution because the plaintiffs had showed a pattern or practice of prosecution of similar conduct.
Chief Justice John G. Roberts: How many proceedings have been brought under this Ohio statute?
Eric J. Feigin: So under the Ohio statute between 2001 and 2010, according to the statistics in the green brief by the Ohio Attorney General, it's a little bit over 500.
And that's just for violations of this False-Statement Law or asserted violations of this False-Statement Law.
Justice Anthony Kennedy: Any -- any breakdown of whether those were brought by candidates or just interested citizens?
Eric J. Feigin: The -- we don't have statistics on that, Your Honor.
The brief doesn't break it down.
If the Court has no further questions, we'd ask the Court to partially reverse and allow only the purely legal ripe, legal challenge State laws to proceed.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF ERIC E. MURPHY ON BEHALF OF THE RESPONDENTS
Eric E Murphy: Mr. Chief Justice, and may it please the Court:
The Court should affirm the Sixth Circuit's judgment in this case because Petitioners have not established a credible threat of criminal prosecution and any other injury, to the extent it is adequately alleged, is not certainly impending.
And I'd like to begin with the prior probable cause finding.
Petitioners repeatedly characterized the prior probable cause finding as a finding by the prior panel that the -- the speech at issue there was probably criminal.
That's not what the finding indicated.
It's a very, very low standard.
It's not a standard that -- it's -- it's well below a preponderance of the evidence, so "probably criminal" is way too high.
It's just -- it's analogous in the civil context to -- to a malicious prosecution case; one of the elements is to establish that a prior case lacked probable cause.
Chief Justice John G. Roberts: Are you ready--
Justice Sonia Sotomayor: But you have to admit that--
Chief Justice John G. Roberts: --Are you prepared to represent to us that if they do the exact same thing the next election that they did in the last one, that you will not take action against them?
Eric E Murphy: No, I'm not -- I have not -- I do not have authority to disavow.
But their -- their argument that you need to disavow is inconsistent with some of the Court's cases suggesting that the threat implied by the existence of a law itself is not sufficient.
And so they -- they fall back on this probable cause finding as suggesting that it creates the objective evidence necessary.
But because -- because the probable cause finding is so low and because there are so many steps between the probable cause finding and the potential criminal prosecution--
Justice Antonin Scalia: Well, but the criminal prosecution isn't all that they're complaining about.
They're complaining about having -- having to be dragged through this same -- this same proceeding next time in the midst of an election campaign, and however minimal the finding that is ultimately made may be, they are going to be subject, for sure, to that proceeding in the next election campaign.
And I don't care if all the commission says is, you know, there is some reason to believe that they were lying.
Even if it's that minimal, you are forcing them, and it is pretty sure that it's going to happen because somebody will complain, the candidate they are criticizing, you are forcing them to go through this procedure in the midst of an election campaign, right?
Eric E Murphy: --Well, with respect, Your Honor, I think there is a couple of answers.
First off, I think it's speculative.
If you look at the complaints, the SBA List complaint simply says they would like to engage in substantially similar activity in the future.
Now, you have to keep in mind what that activity was.
They weren't challenging anybody who voted for the Affordable Care Act.
They were challenging specific congressmen.
At JA-113, it says certain congressmen.
That's in their complaint.
Justice Antonin Scalia: Their organization is not an anti-Driehaus -- is that his name, "Driehaus"?
Eric E Murphy: Yes, Your Honor.
Justice Antonin Scalia: That's not what they are about.
They are about opposition to the abortion funding portion of the Affordable Care Act and they're going to make the same, the same contentions against anybody else who runs for office who has voted for that Act, whether it's Driehaus or anybody else.
Eric E Murphy: Well, with respect, the people that they targeted in 2010 were only pro-life Democrats who originally voted against the Act and then changed their vote in response to the executive order.
This is at JA-52 when they announced their Votes Have Consequences Bus Tour.
It wasn't against everybody who voted for the Act.
Justice Anthony Kennedy: But your very argument, Mr. Murphy, to the effect that, well, probable cause is a very low standard, seems to me to work against you.
It means that more complaints are more likely.
Eric E Murphy: Well, it depends on what you are talking about the relevant injury is.
If the relevant injury is a criminal prosecution, I think it very much shows that a prosecution is entirely unlikely.
And if your relevant injury is some of these preliminary injuries that they're asserting, I do think that the credible threat test is probably not even the test because, as the Court said in Clapper, injuries in that context had to be certainly impending.
Justice Anthony Kennedy: Well, but this is a point brought up by Justice Scalia's question as well.
Don't you think there's a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who's involved in your association, what research you've made, et cetera?
Eric E Murphy: Well, remember that the issue here is standing, so setting aside the -- the First Amendment concern should have no impact into whether an Article III case or controversy exists.
Justice Stephen G. Breyer: Why?
Eric E Murphy: --Because--
Justice Stephen G. Breyer: Why can't a person say, you know, there are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them.
And if I say them, there's a serious risk that I will be had up before a commission and could be fined.
What's the harm?
I can't speak.
That's the harm.
So why isn't that end of the matter?
Eric E Murphy: --Well, the Court -- the Court -- the Court -- has repeatedly said that chilling effect by itself is not the harm.
The relevant harm in your hypo would be--
Justice Stephen G. Breyer: Why shouldn't it be the harm?
That is, whatever -- has any case said when somebody says, you want to speak in a campaign, and we have a law here that if you do we will throw you in jail and you really do want to speak and the law really does prevent you from speaking, why shouldn't that be the end of it?
Eric E Murphy: --Well, remember the test has to be a credible threat of prosecution.
What the Court--
Justice Stephen G. Breyer: Well, I'm saying is there a statute -- not a statute.
Is there a case which says the little syllogism I just went through is not the law of the United States?
Now, there may be.
That's why I asked the question.
Eric E Murphy: --So I think the closest case would be Golden, for instance, where the Court clearly indicated, and I quote,
"The constitutional question, First Amendment or otherwise, must arise in the context of a specific live grievance. "
Justice Ruth Bader Ginsburg: But that was a very special situation.
In Golden they were going out after a particular candidate.
It was not -- it was not a political view that an organization is taking, and they are not targeting this particular candidate, but they are targeting that issue, any candidate who supports that issue.
Eric E Murphy: Well, with respect, Your Honor, in Golden the plaintiff clearly indicated that he was targeting that congressman because of the congressman's votes on -- for a particular care package.
Justice Ruth Bader Ginsburg: But didn't the Court say that there wasn't -- once that congressman wasn't going to run for office any more, there was no suggestion that they wanted to talk about somebody else.
Eric E Murphy: So he did have suggestions that he wanted to engage in substantially similar leafletting in the future, and the Court found them too speculative because he had only identified that one congressman.
And so I think that's significant because I think by analogy that would suggest that the only single forward-looking allegations in SBA List's complaint at JA-122 are that it plans to engage in substantially similar activity in the future, but they don't identify any other candidates, just like they didn't identify any other candidates in Golden, just like they didn't identify any candidates in the Renne decision, which was part of the reason why the Court found the decision -- that case right there.
Justice Ruth Bader Ginsburg: Mr. Murphy, you said there was no credible threat of prosecution, but what about the harm that is occurring?
Mr. Carvin said it's a very short time.
They're brought before the commission, they have to answer this charge that they lied, that they made a false statement.
And that just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?
Eric E Murphy: Well, keep in mind that the reputational harm they have essentially asserted for the first time in this Court.
They didn't assert any type of reputational injuries in the Sixth Circuit.
And I think it would be entirely speculative to suggest that those would exist here with respect to these organizations.
Justice Elena Kagan: Well, I'm not sure it's a reputational harm.
I mean, why isn't, as Justice Ginsburg suggested, the relevant harm the probable cause determination itself?
There are voters out there and they don't know that probable cause is such a low bar as you describe it.
They think probable cause means you probably lied, and that seems a reasonable thing for them to think and that's a relevant harm and we should just -- you know, we don't even need the prosecution to serve as the relevant harm.
That seems quite enough.
Eric E Murphy: They -- they did not rely on any type of that type of harm below and I think -- a harm flowing from the misrepresentation of what the probable cause finding means -- I would think you would have to allege more than they have here with respect to -- that it would exist in this case.
There was no -- they hadn't -- there was no misrepresentations by SBA List, for instance, that this probable cause finding meant that they probably lied.
They told their supporters -- it's in the joint appendix at 74 and 75 -- that all it meant was that you go -- that they found that you have to go before the full commission.
They didn't say to their supporters that you probably lied.
Chief Justice John G. Roberts: I guess it was in the case of COAST; the problem is other people are going to be intimidated from helping them engage in their political speech.
What was it, a billboard?
The billboard company said--
Eric E Murphy: No more advertising.
Chief Justice John G. Roberts: --I'm not going to let you put your sign up on my billboard, I might be liable.
So, I mean, they may have a certain fortitude and proceeding based on all the reasons that you've given, but they need third parties to help carry out their message and there is no reason to think those third parties have any commitment to their political message at all and the slightest whiff of, oh, this is going to be legal trouble, they say, forget about it.
Eric E Murphy: I guess two responses.
Keep in mind that at JA-27 in the letter to Lamar, Driehaus indicated essentially that we reserve the right to proceed against you in the commission or in a court of law, indicating that he was already contemplating a defamation action.
So if this statute -- talking about the redressability prong of standing with the directness test with respect to ripeness, he could have said the exact same thing and it would have chilled them Lamar from--
Chief Justice John G. 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 Antonin 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.
Eric E Murphy: --Well, the law -- so that's the First Amendment question, it seems to me.
On the standing question, it's whether this harm would have come up -- can't come about absent this law, and the fact that he notified the company that they might be thinking about a defamation action suggests that it's entirely speculative that it would have come about absent this law.
Justice Anthony Kennedy: There's a curious inversion here.
Usually we're concerned about citizen suits, too many people can challenge -- challenge the law.
Here we're concerned that many, many citizens can bring the challenge against the candidate.
So it's somewhat reversed.
In other words, you have tens of thousands of private attorney generals waiting to pounce and get these people before the commission and have to follow discovery orders.
Eric E Murphy: Well, I mean, that's true.
But keep in -- keep in mind that there -- when you -- when you think about the fundamental Article III purposes here, separation of powers and federals and purposes, it seems to me that a finding in -- in this case that they have standing would undermine those.
With respect to separation of powers, the Court has repeatedly said that courts are not -- in our constitutional system are not roving commissions designed -- assigned to pass judgment on the validity of the nation of laws, and--
Justice Sonia Sotomayor: --Do you know of the 500 cases that you mentioned earlier, how many actually ended up in full prosecutions?
Eric E Murphy: --So there's -- since 1996, when the statute was amended to allow for this pre-enforcement process, there have been five referrals, and then of those five referrals, three plea agreements.
So there's only been three--
Justice Sonia Sotomayor: Three what?
Eric E Murphy: --Three plea agreements at the end of -- so there was five referrals from the Commission to the relevant prosecutor, and then -- and of those five cases, three charges were brought and plea agreements were essentially entered immediately.
So that -- that just also goes to show that the credible threat of any criminal prosecution is very unlikely.
Chief Justice John G. Roberts: Well, how many of those do you know were mooted out by the election?
Eric E Murphy: Well--
Chief Justice John G. Roberts: In other words, the proceedings are going on and people's speech is being chilled and it's back and forth, then the election is over, and people say, oh, forget about it.
Eric E Murphy: --How many of the overall number of--
Chief Justice John G. Roberts: 500.
You gave us some answers about how many of the 500 resulted in criminal prosecutions.
And all I want to know is how many of the 500 proceedings were mooted out by the fact that the election took place.
Eric E Murphy: --So I -- so roughly 40 percent -- 60 percent, there's a finding of no probable cause.
That leaves 40 percent.
And of those, I -- you know, Your Honor, I don't know the statistics on the number of dismissals.
I would say that there are substantial number of--
Justice Stephen G. Breyer: What would you say as a lawyer -- you're a lawyer for the Commission.
You understand it better than I.
I'm just making up an example.
Do you think they'd prosecute this or not?
Somebody walks in front of the House and a political opponent has a big sign that says murderer.
No one asked.
You said but he voted for legislation that led to the death of many cats.
Would they prosecute that or not?
Eric E Murphy: --Well, I think, Your Honor, it might fall within -- it -- it depends on the scope of the statute--
Justice Stephen G. Breyer: I just want to know your opinion as the lawyer for the Commission, do you think that's going to be prosecuted or not?
Eric E Murphy: --I think the -- I would say probably not, but -- but that's just my--
Justice Stephen G. Breyer: Probably not.
Eric E Murphy: --personal opinion.
Because they would say that you -- you would adopt the rule from the defamation context, that if -- if it can be interpreted under -- either as a hyperbole or either as a reasonable interpretation of an ambiguous statement or were the -- but if -- if there's any interpretation of the statement that is ambiguous, where it's true, it would fall within the defamation rule that it can't be considered false within the meaning of the statute.
So the murder hypo, if it's actually he is a murderer of cats, it might -- it might mean that it's misleading.
Justice Stephen G. Breyer: Why didn't they prosecute this here?
Justice Anthony Kennedy: Yeah.
Why wasn't that--
Justice Stephen G. Breyer: I mean, we've heard in other cases, you know, just recently, a very major case, where people really believed about the same thing and they were sincere in their beliefs.
Eric E Murphy: --The commissioner has now fully conceded that it would be a difficult proposition in this case, certainly.
But I -- I think it's the very nature of the probable cause finding that is--
Justice Samuel Alito: Well, why don't the statistics that you provided us portray a system that really limits core First Amendment speech without providing much of an opportunity for a judicial review if you're correct about -- about Article III here where -- you have a system where thousands of complaints are filed, and yet in the end, there's very few prosecutions.
And you say, well, the filing of the complaint isn't enough and the probable cause determination isn't enough.
So you have a system that goes on and on, year after year, where arguably there's a great chilling of -- of core First Amendment speech, and yet you're saying that basically you can't get into Federal court.
Eric E Murphy: --Well, we're not saying that, Your Honor.
I think we're just saying you can't get into Federal court in this case.
And I do think that this -- those chilling effect concerns should not play a role in the Article III cases or controversy--
Justice Elena Kagan: Well, but why wouldn't it get into Federal court?
I mean, your own office expresses grave concern about the constitutionality of this statute.
So that suggests somebody should be able to get into Federal court to do this.
But I don't see a way where you would allow a pre-enforcement challenge.
One would have to go through the entire process and get to the end of it and get a judgment to enable a challenge under your theory; is that right?
Eric E Murphy: --Well, I think under our theory, it really depends.
There's two types of cases that are brought.
One is a case like Babbitt, where they're saying the law is ambiguous, it could mean A or it could -- it could mean B.
If it means A, my speech is covered within it.
There, all you essentially have to do is allege you want to engage in the speech that would fall within the rule.
But that's not what they're doing here.
They're saying their speech falls completely outside this law, this unambiguous law, the distinctions between false and true, but we're going to get prosecuted anyways.
And in that context, I think you do have to allege what the government suggested is more objective evidence that you're going to be prosecuted outside--
Justice Stephen G. Breyer: --I had a reason for asking what sounds like a silly hypothetical, but a possible one.
We understand how people take different views on that.
And then you have a hard time, it seems to me, distinguishing this case from that one in terms of their exercising their authority.
And so at least it must raise a question, a First Amendment question on the merits.
It seems pretty serious.
So if you lose on this procedural matter, how quickly can you get this decided?
I mean, there are elections coming up.
People would like to know.
They want to know what they're supposed to say.
And how long is all this procedural skirmishing going to take, which in and of itself is an obstacle to what they might say in the next election?
Eric E Murphy: --So procedural skirmishing, you're talking about within--
Justice Stephen G. Breyer: I mean, you're saying, well, they don't have standardized -- you know, I was interested in this field, administrative law, and even my class, despite the scintillation, would sometimes go to sleep when I got to such questions.
So -- so I'm saying that these seem to be preliminary questions on a matter in respect to which there seems serious doubt.
I'll repeat myself.
The elections are coming up.
And people have to know what they're supposed to say and what they can say and what they can't.
So how do we get this--
Eric E Murphy: --Well, it seems to me your question is the -- your question is suggesting that the underlying law is -- is -- there's serious doubts about the constitutionality of the underlying law.
Justice Stephen G. Breyer: --That--
Eric E Murphy: And that provides -- that doesn't provide any basis.
The entire purposes of Article III's case of controversy requirement is to ensure that courts only decide constitutional questions in concrete cases.
And to allow the merits to slip into the Article III question fundamentally undermines the separation of powers--
Justice Stephen G. Breyer: --Well, I would say one of the purposes of Stanley is to allow people who are really going to be heard to be able to be heard in court.
Well, of course, if they're not going to be heard, there's no reason.
And what the merits discussion is designed to suggest is that there are real people who would really like to speak in an election campaign.
And if they feel they can't, they are really being hurt.
That's what the other side is arguing.
And I've listened to the argument.
I'm curious as to the practicalities.
If they're right, when is this going to be heard and decided in your opinion?
Eric E Murphy: --So the -- are you talking if there's a remand in the district court, or--
Justice Stephen G. Breyer: You tell me how to do it.
Eric E Murphy: --Well, I think that case should be dismissed, obviously.
Justice Stephen G. Breyer: I'm saying if you were to lose on the--
Eric E Murphy: Okay.
If I was to lose?
Oh, you could -- frankly, if you remanded finding a concrete case here, you could instruct the district court to certify to the Ohio Supreme Court, for instance, which could give an immediate authoritative interpretation of the law and it could -- it could include all the relevant narrowing constructions that this Court has adopted--
Chief Justice John G. Roberts: Well, that will speed things up.
You don't even want -- you don't even want the district court to decide it.
You want to go through a certification process that will bring in a whole another court system.
Eric E Murphy: --But it has to decide the scope of a law.
As the United States v. Williams said, to determine the constitutionality of the law, you need to know its scope.
And -- and the entire suggestion here that their speech is covered suggests that the scope -- or the scope of the law is much broader than the Ohio Supreme Court could interpret it to be.
Justice Samuel Alito: Well, what -- what narrowing construction would be consistent with Alvarez?
Justice Antonin Scalia: Yeah, what?
I can't understand what that would be.
It has to be really false.
Is that it?
Eric E Murphy: Well, I think -- I think -- I think Alvarez is completely distinguishable as being about false statements in the abstract.
This Court already held in McIntyre that the State has a compelling interest in policing fraud and liability of statements in the election context because of the risk to the public from those statements.
And Mark Twain--
Justice Samuel Alito: Well, Alvarez wasn't about false statements in the abstract.
It was a criminal prosecution for making particular false statements.
And they were as hard factual statements as you will ever find.
Did somebody receive the Congressional Medal of Honor or not?
Eric E Murphy: --No, I agree with that.
There was a false statement of a verifiable -- verifiable fact, but it was a false statement anywhere, anytime; even like at home, if you make the statement, it could be covered.
What we're saying here is that false statements in the election context, the State has a much more compelling interest in that context because, as the Court said in McIntyre, the -- the false statements can have an impact on the election.
Of course, there's false positives if the commission gets it wrong.
But think about the false -- false negatives that slip through when somebody is making a false statement, and that actually impacts a campaign, leading to somebody voting for somebody else.
Justice Sonia Sotomayor: But how are you going to prove -- how are you ever going to prove that one false statement cost somebody an election?
Eric E Murphy: What's that?
Justice Sonia Sotomayor: How are you ever going to prove that one false statement cost somebody an election?
Eric E Murphy: Well, I don't think we -- I don't think we have to prove that to get a conviction in any case.
I think we just prove that their false statements can have impacts on elections, and that shows the interest in this case, as compared to the interest in Alvarez, in which the false statements could be made at any time, under any circumstances.
It wasn't -- it wasn't narrowly tailored to the election context.
Justice Antonin Scalia: Do you think that the allegedly false statement here was a false statement of fact?
Eric E Murphy: I think there's a good argument that it was not, that there was a false statement of -- that there's reasonable interpretations of this ambiguous Affordable Care Act, and if so--
Justice Antonin Scalia: There's a good argument on the other side.
But it's an argument over a fact, isn't it, whether this person was responsible for the Affordable Care Act.
I mean that was the charge, you know, that this person made the decisive vote, right, in the--
Eric E Murphy: --Well, that's a different case.
This charge was he voted for taxpayer-funded abortion, was the -- was the charge.
And so it's whether this Act--
Justice Antonin Scalia: --But by voting -- by voting for that Act.
Eric E Murphy: --For the Act, yes.
Justice Antonin Scalia: Yes.
Eric E Murphy: So it's whether the Act covers taxpayer-funded abortion, and that's a complex question that if the court were to -- if the Ohio Supreme Court, through certification, were to adopt the Bose standard, it would suggest that it might not be covered because the Bose standard suggests that speech about an ambiguous topic cannot be false under the actual malice standard.
So this whole -- this whole speech could be, through certification, eliminated and the statute narrowed to cover only false statements of verifiable fact.
Justice Antonin Scalia: And then all you have to do is litigate it.
You -- you make the statement, and then, you know, you can litigate it on the basis of whatever the Ohio Supreme Court says.
Eric E Murphy: Well--
Justice Antonin Scalia: I mean, let's litigate whether it's factually inaccurate or legally inaccurate, right?
It's a lawsuit.
Eric E Murphy: --So we're talking about the scope of the law, correct?
Justice Antonin Scalia: Yes, we are.
But I mean, we're talking about whether this law imposes limitations upon the freedom of speech.
And if you say whenever you do it, you are going to have a lawsuit, you're going to be hauled before this commission.
You may have a good case, you may not have a good case, but you have to justify yourself to this commission before you can -- before you can make the assertion.
Eric E Murphy: Well, that's not true.
That doesn't happen in every case.
It makes -- you're making it sound like the commission hears every political statement out there.
But it has to be filed by a person, and only one person filed a complaint against the SBA this last time, and he is in Africa now.
So I don't think he'll be filing complaints any time soon.
Justice Antonin Scalia: He really lost, didn't he?
Eric E Murphy: I see my time is up.
Could I just ask the--
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Carvin, you have 5 minutes.
REBUTTAL ARGUMENT OF MICHAEL A. CARVIN ON BEHALF OF THE PETITIONERS
Michael A. Carvin: A few brief points.
I think the key point to take away from the colloquy with Mr. Murphy is that when he was asked, How do you bring a pre-enforcement challenge, his only solution was to admit you're lying before you speak.
Well, obviously that completely defeats the value of your speech.
No speaker is ever going to do it.
You're not going to confess to a crime before you speak.
And I would point out in Babbitt they didn't say they were going to lie.
They said just the opposite, and they nonetheless had standing.
On the certification point, further delay in the Ohio Supreme Court for a limiting construction that we don't want, that can't possibly do it.
After Alvarez, the stacked opinion distinction is of no legal relevance.
We don't want a limiting construction.
We want to say that anything, fact or opinion, is unconstitutional to limit under the false statement law.
I point out that we did litigate in front of this very same district court judge the fact/opinion issue in the libel case, where it does have some resonance, and he's already found that our assertion was factual.
So we don't want to go on that tangent.
If the Court would just look at them, Browskins and Citizens United, those cases articulate as well as any can, when you are making a facial challenge to a First Amendment, the last thing you want to do is abstain to State court judges because you actually exacerbate the constitutional injury through the delay and the fact that you've got to go through declaratory judgments, when our entire point is it's unconstitutional for us to say, "Mother, may I"?
before we speak.
As to Mr. Murphy's attempt to downplay the probable cause finding, on 7A attached to their brief they have what the probable cause finding is.
And it says that there is probable cause to believe that there's been a violation of the law alleged and that the complaint has occurred.
Under this Court's probable cause determination, that means reasonable people would believe that a violation has occurred, even though you need to show it by clear and convincing evidence, and even though my opponent claims that any reasonable interpretation of this law is not false.
Well, that means that they've already found that through clear and convincing evidence we are advancing not only a false, but an unreasonable interpretation of the ACA, which simply, of course, exacerbates the credible threat.
And I think my final point will be, he says -- well, two things.
One is he says we didn't allege with specificity the kind of speech that we were going to say in the future.
We said we're going to engage in the same or similar speech.
I don't think the language, the English language, permits a more direct and precise articulation of what we're going to say in the future.
The only difference will be, instead of Representative Driehaus, we will substitute Representative Kaptur, another pro-life Democrat in Ohio who we have already criticized for her vote on the ACA and which we would have repeated in the 2012 election cycle but for the chilling effect.
This is obviously completely different from Golden, which my opponent continues to raise, where the Court found that the only interpretation of the facts is that the plaintiff's, quote, "sole concern" was with the representative at issue, who had gone off to a judgeship.
It is blazingly obvious that our sole concern is not Representative Driehaus.
It is any legislator that voted for an Act that we believe devoutly has "taxpayer-funded" and "abortion" in it.
So we're facing a credible threat.
We ask the Court to lift this yoke so that we can become full participants in the next election cycle.
Unless there are any further questions, I thank you.
Chief Justice John G. Roberts: Thank you, counsel, counsel.
The case is submitted.