Susan B. Anthony List v. Driehaus

134 S.Ct. 2334 (2014)


In June 2014, the U.S. Supreme Court held 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.

Media Coalition filed an amicus brief in the case, asking the Court to reaffirm that those who have a “reasonable fear of prosecution” have standing to bring a pre-enforcement challenge, a standard that was established in the Media Coalition case Virginia v. American Booksellers Association. The Court cited the “reasonable fear of prosecution” standard as an acceptable formulation of the “credible threat of enforcement” standard.


Courts find Susan B. Anthony List lacks standing

The U.S. District Court for the Southern District of Ohio dismissed [3] a challenge by Susan B. Anthony List to a state law regulating speech in campaign advertising. The Court found the Susan B. Anthony List lacked standing to file a “pre-enforcement” challenge because it could not demonstrate that prosecution was likely or imminent. The court said, “Without enforcement action pending at any stage, a case or controversy does not exist.”

On May 13, 2013, the Sixth Circuit Court of Appeals affirmed [4] the district court’s decision to dismiss the lawsuit, saying neither past enforcement nor a chilling effect on speakers suffices to prove an “imminent threat of future prosecution,” and Susan B. Anthony List, therefore, cannot challenge the constitutionality of the statute.

Susan B. Anthony List appealed the ruling to the Supreme Court. On January 10, 2014, the Supreme Court granted Susan B. Anthony List’s petition for writ of certiorari [5].

Media Coalition files amicus brief

On March 3, 2014, Media Coalition submitted an amicus brief [2] in the case, 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 amicus brief was signed by: American Booksellers Foundation for Free ExpressionAssociation 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 AssociationPacific 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.

In a Q&A, Media Coalition Executive Director David Horowitz explained that a pre-enforcement challenge is a critical tool for protecting free speech rights. “A bookseller or librarian may pull a book from the shelf if they fear that they may be prosecuted,” Horowitz said. “A pre-enforcement challenge allows a court to determine if a law violates the First Amendment before a bookseller or librarian pulls the book off the shelves or has been arrested for not pulling the book off the shelf.”

The standard of a “well-founded fear of prosecution” to determine standing in a pre-enforcement challenge was established by the Supreme Court in its 1988 decision in Virginia v. American Booksellers Association. That case has allowed Media Coalition to bring 22 additional challenges to censorship laws over the last 35 years. In all of those challenges, the statutes were either held unconstitutional or narrowed to comply with the First Amendment. The amicus brief argues that these cases could have been dismissed under the Sixth Circuit’s definition of standing.

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

Other amicus briefs filed in the case

In support of petitioners (Susan B. Anthony List and Coalition Opposed to Additional Spending and Taxation): 1851 Center for Constitutional Law; Alliance Defending Freedom; ACLU and ACLU of Ohio; Bioethics Defense Fund; Cato Institute and PJ O’Rourke; Center for Competitive Politics; Center for Constitutional Jurisprudence; Christian Legal Society, et al.; Citizens United, et al.; First Amendment Lawyers Association; Foundation for Individual Rights in Education; General Conference of Seventh-Day Adventists, et al.; Government Integrity Fund; Institute for Justice, et al.; Justice and Freedom Fund; Republican National Committee; Southeastern Legal Foundation; and Student Press Law Center

In support of neither party: Ohio Attorney General Michael Dewine

In support of partial reversal: United States

Supreme Court reverses Sixth Circuit

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

On June 16, 2014, the Court unanimously overturned the Sixth Circuit decision [1], 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.

Last updated: Nov 2, 2016