It's an old legal axiom that not every bad law is unconstitutional. But you'd be forgiven if you thought that every unconstitutional law at least had a judicial remedy.
That makes sense. Most people assume that constitutional claims, regardless of whether one agrees with a particular argument, can at least be heard by a federal court.
But during the recent oral argument before the U.S. Supreme Court in Susan B. Anthony List v. Driehaus the respondents argued that just is not so.
Ohio law permits the state to, through a state commission, determine which political speech is true and which is false, and encourage the prosecution of those who lie.
The First Amendment harm of allowing a state agency to pick and choose which speakers may talk and which speakers ought to be punished is obvious. A straight challenge to the law would likely be quite successful.
But SBA List is not such a challenge. Rather, it is about a much more pernicious harm. The state of Ohio is attempting to use the judicial process itself to evade review of its law, and believes that its law may only be challenged once that process imposes a final penalty on SBA List.
As my organization, the Center for Competitive Politics, pointed out in our amicus brief: “There is more than one way to impose a First Amendment harm. Ohio's statute, which criminalizes false speech (as determined by the State), is one way. But even without such a determination, and the criminal sanctions that follow, an organization's speech can be effectively chilled through judicial process itself.”
At argument, Ohio's counsel admitted that SBA List’s claims may be true—such a determination, he claimed, was a “complex question.”
But because of the congressman’s complaint, in 2010, SBA List was forced to hire counsel to defend itself before a three-member government panel, which found probable cause that SBA List’s speech was a lie.
After the finding of probable cause, the internal communications of SBA List, among other things, were compelled by the commission during the discovery process.
But SBA List never got to vindicate itself before the full commission or in the courts: The congressman lost his election, withdrew the complaint, and now lives on another continent.
But thanks to the old probable cause finding, SBA List is afraid to run similar ads against other Obamacare proponents.
As our brief noted, this “ongoing, obvious, and repeatable harm demands meaningful judicial review.” And, usually, it would receive it.
SBA List intends to issue similar speech in the future, about other Obamacare supporters. A state agency has already found probable cause that such speech is illegal, so the case is likely to be repeated if SBA List speaks again.
Meanwhile, the compressed time surrounding an election makes it difficult for courts to speedily resolve the case, placing the case neatly under a legal rule that permits courts to hear cases “capable of repetition, yet evading review.”
This is not a novel concept, it was functionally applied in McCutcheon v. FEC, when Mr. McCutcheon finally learned that he could have given money to as many candidates as he wanted to during the 2012 election cycle.
But Ohio believes that judicial review of the Ohio law is impossible unless SBA List runs its ads again and suffers (1) a future finding of probable cause by the full commission, (2) indictment by a prosecutor, and (3) conviction at trial.
Some of the harms involving discovery — which SBA List already suffered in 2010 — would be a walk in the park compared to the vast and open-ended cascade of discovery requests, interrogatories, and depositions the prosecutor would likely demand as "necessary" to prepare for trial.
Fortunately, Supreme Court precedent prohibits Ohio from levying such penalties as a price for challenging speech regulation.
Just seven years ago, in FEC v. Wisconsin Right to Life, the Supreme Court determined that such “extensive discovery ... constitutes a severe burden on political speech.”
That is, it is no more acceptable to make it harder for groups to obtain their First Amendment freedoms through the discovery process than through legislative action.
The justices were appropriately skeptical of Ohio's argument. Justice Anthony Kennedy, author of the majority opinion in Citizens United, pointedly asked whether there is “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?”
Justice Stephen Breyer, author of the McCutcheon dissent, went further, pointedly asking the state to bring forward “any case [which has] 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?”
The state, predictably, had no applicable answer. Hopefully, the Court will issue an order conforming with its Wisconsin Right to Life opinion.
Such an order would re-affirm what the Court said in its Citizens United decision that “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney ... or seek declaratory rulings before discussing the most salient political issues of our day.”
That would be a good day for all Americans who wish to exercise their highly-valued First Amendment freedoms.Zac Morgan is a staff attorney at the Center for Competitive Politics.