SPLC urges Supreme Court to overturn ruling erecting hurdles to First Amendment legal challenges


Contact: Frank D. LoMonte, executive director
703.807.1904 / director@splc.org

In a brief filed Monday, the Student Press Law Center urges the U.S. Supreme Court to overturn a lower-court ruling that makes it almost impossible to challenge the constitutionality of a law restricting speech without first violating the law and suffering punishment.

The SPLC is asking the Court to overturn a May 2013 decision by the Nashville-based Sixth Circuit U.S. Court of Appeals, Susan B. Anthony Fund v. Dreihaus. In the Dreihaus case, a three-judge panel of the Sixth Circuit threw out a First Amendment challenge by an anti-abortion group questioning the constitutionality of an Ohio law regulating speech in political campaigns.

“Without the ability to bring pre-enforcement, facial challenges to [campus] speech restrictions, many students will simply forgo their First Amendment rights. No matter how strong their beliefs, few students will expose themselves to school discipline—tarnishing their school record and threatening their college and job prospects—in the hope that the legal system might later vindicate them,” the SPLC said in a friend-of-the-court brief supporting the Fund’s challenge. The brief was prepared by a team of volunteer counsel from Kilpatrick Townsend & Stockton LLP that included Adam H. Charnes, Richard A. Dietz, Thomas M. Clyde and Elizabeth L. Winters. Kilpatrick Townsend is part of the SPLC’s pro-bono Attorney Referral Network, through which more than 160 lawyers have volunteered to take on cases of importance to those working in student media nationwide.

“In the last few years, young people have been the target of a wave of state laws putting them at risk of discipline and, in some cases, even criminal prosecution just for speech on social media criticizing school officials. Many of these laws will not stand the test of constitutionality, but it would be tragic to make a young person endure jail or expulsion to prove that point,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center.

The case raises the question of when a challenger has “legal standing” to ask a court to invalidate a statute as unconstitutional on its face. Because of the importance of protecting constitutional rights, courts traditionally will entertain First Amendment cases “pre-enforcement,” by a person who merely fears punishment but has not actually been punished.

Most of the nation’s 12 geographic federal circuits apply a standard more lenient than the one created by the Sixth Circuit in the Dreihaus case. In most circuits, a plaintiff may challenge the constitutionality of a statute by showing that he has a well-founded fear of future enforcement. But the Sixth Circuit reached a different result.

The Susan B. Anthony Fund asked the Sixth Circuit to invalidate an Ohio statute that imposes state financial penalties on factually false statements made in connection with campaigns, including speech by third parties such as the Fund. The court declined to hear the challenge, finding that the Fund did not have legal standing because – even though the organization was intimidated into canceling a billboard advertising campaign in a U.S. House race by the threat of state financial sanctions – the organization could not show to a near-certainty that it would be the target of state enforcement action in future campaigns.

“This case is about keeping the courts open for citizens fearful of government punishment for what they say,” LoMonte said.

An example, LoMonte noted that a 2012 North Carolina statute singles out only students for criminal prosecution if they post anything online that “torments” a school employee, a term that is legally meaningless. The law almost certainly violates the First Amendment, LoMonte said, but – if the Supreme Court refuses to reverse the Dreihaus ruling – a student might have to actually suffer arrest and prosecution to be in a position to challenge it.

“All citizens, but especially young people, deserve a meaningful opportunity to challenge unconstitutional statutes such North Carolina’s so-called ‘school safety’ law that chill them from speaking. Just having such vague and excessively broad laws on the books is enough to intimidate speakers who fear stepping over a subjective line that might lead to arrest,” he said.

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.