List v. Driehaus

[1] Justice THOMAS delivered the opinion of the Court.

[2] Petitioners in this case seek to challenge an Ohio statute that prohibits certain "false statements" during the course of a political campaign. The question in this case is whether their pre-enforcement challenge to that law is justiciable — and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have.

I

[3] The Ohio statute at issue prohibits certain "false statement[s]" "during the course of any campaign for nomination or election to public office or office of a political party." As relevant here, the statute makes it a crime for any person to "[m]ake a false statement concerning the voting record of a candidate or public official," or to "[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not,"

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[4] Violation of the false statement statute is a first-degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev.Code Ann. §§ 3599.40 (Lexis 2013), 3517.992(V) (Lexis Supp. 2014). A second conviction under the false statement statute is a fourth-degree felony that carries a mandatory penalty of disfranchisement. § 3599.39.

II

[5] Petitioner Susan B. Anthony List (SBA) is a "pro-life advocacy organization." During the 2010 election cycle, SBA publicly criticized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to "educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion." The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus' district condemning that vote. The planned billboard would have read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." The advertising company that owned the billboard space refused to display that message, however, after Driehaus' counsel threatened legal action.

[6] On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated [the Ohio statute] by falsely stating that he had voted for "taxpayer-funded abortion."^[2] Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA's communications with allied organizations, political party committees, and Members of Congress and their staffs.

[7] On October 18, 2010 — after the panel's probable-cause determination, but before the scheduled Commission hearing — SBA filed suit in Federal District Court, seeking declaratory and injunctive relief on the ground that [the Ohio statute’s provisions] violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action pending completion of the Commission proceedings. The Sixth Circuit denied SBA's motion for an injunction pending appeal. Driehaus and SBA eventually agreed to postpone the full Commission hearing until after the election.

[8] When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA's consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As relevant here, the amended complaint alleged that [the relevant Ohio statutory provisions prohibiting false statements during political campaigns] are unconstitutional both facially and as applied. Specifically, the complaint alleged that SBA's speech about Driehaus had been chilled; that SBA "intends to engage in substantially similar activity in the future"; and that it "face[d] the prospect of its speech and associational rights again being chilled and burdened," because "[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself."

[9] The District Court dismissed [the action] as non-justiciable, concluding that [it presented] no sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied.

[10] Regarding the first factor, the Sixth Circuit concluded that SBA's prior injuries — the probable-cause determination and the billboard rejection — "do not help it show an imminent threat of future prosecution," particularly where "the Commission never found that SBA ... violated Ohio's false-statement law." The court further reasoned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that "it plans to lie or recklessly disregard the veracity of its speech" in the future, but rather maintains that the statements it intends to make are factually true.

[11] As for the remaining factors, the court concluded that the factual record was insufficiently developed with respect to the content of SBA's future speech, and that withholding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit therefore determined that SBA's suit was not ripe for review.

[12] We granted certiorari, and now reverse.

III

A

[13] Article III of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." U.S. Const., Art. III, § 2. The doctrine of standing gives meaning to these constitutional limits by "identify[ing] those disputes which are appropriately resolved through the judicial process."^[5] Lujan v. Defenders of Wildlife (1992). "The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, (2013) . To establish Article III standing, a plaintiff must show (1) an "injury in fact," (2) a sufficient "causal connection between the injury and the conduct complained of," and (3) a "likel[ihood]" that the injury "will be redressed by a favorable decision." Lujan,.

[14] This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a "personal stake in the outcome of the controversy." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be "concrete and particularized" and "actual or imminent, not `conjectural' or `hypothetical.'" Lujan,. An allegation of future injury may suffice if the threatened injury is "certainly impending," or there is a "`substantial risk' that the harm will occur." Clapper.

[15] "`The party invoking federal jurisdiction bears the burden of establishing' standing." Id. "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan.

B

[16] One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. [] Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt (1979). Several of our cases illustrate the circumstances under which plaintiffs may bring a pre-enforcement challenge consistent with Article III.

[17] In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him.

[18] We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his companion's prosecution showed that his "concern with arrest" was not "`chimerical.'" Under those circumstances, we said, "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights."

[19] In Babbitt, we considered a pre-enforcement challenge to a statute that made it an unfair labor practice to encourage consumers to boycott an "agricultural product ... by the use of dishonest, untruthful and deceptive publicity.'" The plaintiffs contended that the law "unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals."

[20] Building on Steffel, we explained that a plaintiff could bring a pre-enforcement suit when he "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." We found those circumstances present in Babbitt. In that case, the law "on its face proscribe[d] dishonest, untruthful, and deceptive publicity." The plaintiffs had "actively engaged in consumer publicity campaigns in the past" and alleged "an intention to continue" those campaigns in the future. And although they did not "plan to propagate untruths," they argued that "`erroneous statement is inevitable in free debate.'" We concluded that the plaintiffs' fear of prosecution was not "imaginary or wholly speculative," and that their challenge to the consumer publicity provision presented an Article III case or controversy.

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IV

[21] Here, [petitioners] contend that the threat of enforcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have alleged a credible threat of enforcement.

A

[22] First, petitioners have alleged "an intention to engage in a course of conduct arguably affected with a constitutional interest." Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported "taxpayer-funded abortion," and it has alleged an "inten[t] to engage in substantially similar activity in the future." [ ] Because petitioners' intended future conduct concerns political speech, it is certainly "affected with a constitutional interest."

B

[23] Next, petitioners' intended future conduct is "arguably ... proscribed by [the] statute" they wish to challenge. The Ohio false statement law sweeps broadly, and covers the subject matter of petitioners' intended speech. Both [petitioners] have alleged an intent to "[m]ake" statements "concerning the voting record of a candidate or public official," and to "disseminate" statements "concerning a candidate ... to promote the election, nomination, or defeat of the candidate,"  And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported "taxpayer-funded abortion" — the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners' intended speech is "arguably proscribed" by the law.

[24] Respondents incorrectly rely on Golden v. Zwickler, (1969). In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particular Congressman who had since left office. The Court dismissed the plaintiff's challenge to the electoral leafletting ban as non-justiciable because his "sole concern was literature relating to the Congressman and his record," and "it was most unlikely that the Congressman would again be a candidate." Under those circumstances, any threat of future prosecution was "wholly conjectural."

[25] Here, by contrast, petitioners' speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Because petitioners' alleged future speech is not directed exclusively at Driehaus, it does not matter whether he "may run for office again." As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio's false statement statute.

[26] Respondents, echoing the Sixth Circuit, contend that SBA's fears of enforcement are misplaced because SBA has not said it "`plans to lie or recklessly disregard the veracity of its speech.'" The Sixth Circuit reasoned that because SBA "can only be liable for making a statement `knowing' it is false," SBA's insistence that its speech is factually true "makes the possibility of prosecution for uttering such statements exceedingly slim."

[27] The Sixth Circuit misses the point. SBA's insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA's belief in the truth of its allegations. Nothing in this Court's decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.

C

[28] Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not "`chimerical.'" Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA's speech violated the false statement statute. Indeed, future complainants may well "invoke the prior probable-cause finding to prove that SBA knowingly lied."

[29] The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows "any person" with knowledge of the purported violation to file a complaint. Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents. And petitioners, who intend to criticize candidates for political office, are easy targets.

[30] Finally, Commission proceedings are not a rare occurrence. Petitioners inform us that the Commission "`handles about 20 to 80 false statement complaints per year,'"and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. In fact, the specter of enforcement is so substantial that the owner of the billboard refused to display SBA's message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from "imaginary or speculative."

[31] We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review. 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." "[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." 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 pre-election probable-cause finding, "such a determination itself may be viewed [by the electorate] as a sanction by the State."

[32] 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.

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[33] In sum, we find that [petitioners] have alleged a credible threat of enforcement.

V

[34] In concluding that petitioners' claims were not justiciable, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently developed, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings. Respondents contend that these "prudential ripeness" factors confirm that the claims at issue are non-justiciable. But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners' claims non-justiciable "on grounds that are `prudential,' rather than constitutional," "[t]hat request is in some tension with our recent reaffirmation of the principle that `a federal court's obligation to hear and decide' cases within its jurisdiction `is virtually unflagging.'" Lexmark Int'l, Inc. v. Static Control Components, Inc., (2014).

[35] In any event, we need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the "fitness" and "hardship" factors are easily satisfied here. First, petitioners' challenge to the Ohio false statement statute presents an issue that is "purely legal, and will not be clarified by further factual development." And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other.

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[36] Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Appeals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met.

[37] It is so ordered.

[1] Section 3517.21(B) provides in relevant part:

"No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:

. . . . .

"(9) Make a false statement concerning the voting record of a candidate or public official;

"(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate."

[2] The dispute about the falsity of SBA's speech concerns two different provisions of the ACA: (1) the subsidy to assist lower income individuals in paying insurance premiums, and (2) the direct appropriation of federal money for certain health programs such as community health centers. See Brief for Petitioners 4-5.

[3] Petitioners also challenged a related "disclaimer provision," App. 126-127, 156-157, under Ohio Rev.Code Ann. § 3517.20, and COAST raised pre-emption and due process claims. Reply Brief 21, n. 7. Petitioners do not pursue their "disclaimer," pre-emption, or due process claims before us. Ibid. We also need not address SBA's separate challenge to the Commission's investigatory procedures; petitioners have conceded that the procedures claim stands or falls with the substantive prohibition on false statements. Ibid.; see Tr. of Oral Arg. 19. Finally, the parties agree that petitioners' as-applied claims "are better read as facial objections to Ohio's law." Reply Brief 19. Accordingly, we do not separately address the as-applied claims.

[4] SBA named Driehaus, the Commission's members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. COAST named the Commission, the Commission's members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. All named defendants are respondents here.

[5] The doctrines of standing and ripeness "originate" from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case "boil down to the same question." Med-Immune, Inc. v. Genentech, Inc., 549 U.S. 118, 128, n. 8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), and Babbitt v. Farm Workers, 442 U.S. 289, 299, n. 11, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), we use the term "standing" in this opinion.