Susan B. Anthony List v. Driehaus

525 Fed. Appx. 415 (6th Cir. 2013)

Most Recent News
On June 16, 2014, the Supreme Court held [1] that “a credible threat of enforcement” is a sufficient threat of injury to establish standing in a First Amendment case when bringing a “pre-enforcement” challenge. The Court cited the standard in Virginia v. American Booksellers Association of “a reasonable fear of prosecution” as an acceptable formulation of the “credible threat” standard.

Read Media Coalition’s press release on the decision.

Media Coalition Action
On March 3, 2014, Media Coalition filed an amicus brief [2] in Susan B. Anthony List v. Driehaus asking the Supreme Court to reaffirm that those who have a well-founded fear of prosecution have standing to bring a pre-enforcement challenge to a censorship law in federal court. The Sixth Circuit found that the plaintiffs did not have standing because they could not show that prosecution was imminent or likely.

The brief in Driehaus was signed by: American Booksellers Foundation for Free Expression; Association of American Publishers, Inc.; Comic Book Legal Defense Fund; Freedom to Read Foundation; American Booksellers Association; American Library Association; Great Lakes Independent Booksellers Association; Mountains & Plains Independent Booksellers Association; Pacific Northwest Booksellers Association; Southern Independent Booksellers Alliance; Annie Bloom’s Books; Changing Hands Bookstore, Inc.; Harvard Book Store, Inc.; Paulina Springs Books; Powell’s Bookstore, Inc.; Schuler Books & Music; Tattered Cover, Inc.; The King’s English, Inc.; Weller Book Works; Village Books; and Dark Horse Comics, Inc.

The group’s brief demonstrates the importance of allowing challenges to censorship laws prior to prosecution. The brief cites 23 challenges brought over the last 35 years by members of Media Coalition and others who signed the brief. These cases could have been dismissed under the Sixth Circuit’s definition of standing. In all of those challenges, the statutes were held unconstitutional or narrowed to comply with the First Amendment.

See a Q&A with Media Coalition Director David Horowitz discussing the importance of the amicus brief.

See an interactive map of where Media Coalition and its members have brought facial challenges in federal court.

sbal-v-driehaus-map

 

Case History
In Driehaus, a U.S. District Court in Ohio dismissed a challenge by Susan B. Anthony List (SBAL) to a state law regulating speech in campaign advertising. The Court found that SBAL lacked standing to file a “pre-enforcement” challenge because it couldn’t demonstrate that prosecution was likely or imminent. The court said, “[w]ithout enforcement action pending at any stage, a case or controversy does not exist.”

On May 13, 2013, the Sixth Circuit Court of Appeals affirmed [3] the district court’s decision to dismiss the suit, saying neither past enforcement nor a chilling effect on speakers suffices to prove an “imminent threat of future prosecution,” and SBAL, therefore, cannot challenge the constitutionality of a statute.

On January 10, 2014, the Supreme Court granted Susan B. Anthony List’s writ of certiorari [4].

On April 22, 2014 the Supreme Court heard the oral argument in the case.

On June 16, 2014, the Supreme Court unanimously overturned the Sixth Circuit decision, holding that “a credible threat of enforcement” is a sufficient threat of injury to establish standing in a First Amendment case when bringing a “pre-enforcement” challenge. The Court cited the standard in Virginia v. American Booksellers Association of “a reasonable fear of prosecution” as an acceptable formulation of the “credible threat” standard. Justice Clarence Thomas wrote the opinion for the Court.

Amicus Briefs Filed in the Case
In support of petitioners (Susan B. Anthony List and Coalition Opposed to Additional Spending and Taxes):

In support of neither party:

In support of partial reversal: