Supreme Court knocks down barrier insulating unconstitutional statutes against challenge

Justice Clarence Thomas, who famously insists that young people have no more rights than houseplants, just rescued students from a potentially devastating ruling making it nearly impossible to challenge an unconstitutional restraint on speech.

In a 9-0 opinion authored by Thomas, the Supreme Court decided Monday that a would-be speaker can bring a First Amendment claim against a statute penalizing speech without having to wait to suffer the punishment.

The Court’s unanimous opinion overturns an errant decision from the Cincinnati-based Sixth Circuit U.S. Court of Appeal, which departed from First Amendment precedent in ruling that a speaker could challenge a restraint on speech only by incurring the punishment or proving that punishment was imminent.

It’s enough, the Supreme Court decided, that a speaker can show he plans to engage in “arguably” protected speech but faces a  “credible threat of enforcement.”

The case arose from an anti-abortion political group’s attempt to disseminate an attack ad against a Democratic Ohio congressman. The congressman, Steve Driehaus, filed a complaint with the Ohio Elections Commission under an unusual state law criminalizing false statements in a campaign ad. The complaint never went anywhere because Driehaus lost his race, but the Susan B. Anthony Fund sought to continue challenging the Ohio law on the grounds that fear of criminal punishment would inhibit its advertising in future races.

The Supreme Court ruling reinstates the SBA Fund’s First Amendment challenge, meaning that the (questionable) merits of the Ohio statute will be back before the federal courts before long.

As the SPLC pointed out in a friend-of-the-court brief prepared with volunteer counsel from Kilpatrick Stockton LLP, young people have been singled out in recent years for harshly punitive laws criminalizing speech, including North Carolina’s “torment your principal and go to jail” statute, enacted in 2012.

Students would have been uniquely disadvantaged by the stingy legal standard adopted by the Sixth Circuit.

Statutes punishing student speakers are especially difficult to challenge. Graduation can moot students’ constitutional claims, and students are especially unlikely to offer themselves up as “sacrificial plaintiffs” willing to incur punishment to prove a point, because punishment can deprive them of once-in-a-lifetime experiences. A person who is unlawfully fined for speech can get his money back, but a student who is expelled from school and denied admission to the college of his choice cannot be “made whole” just by writing a check.

For would-be student plaintiffs, the most significant part of the Court’s favorable ruling is this: “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.”

That’s potentially decisive in a case like the inevitable legal challenge to North Carolina’s terrifying SB 707, which exposes students (but only students) to a year in jail for conduct as insignificant as a fake Twitter account mocking a school official. A student would be hard-pressed to get a case into court if forced to prove that she planned to illegally “intimidate” or “torment” a school employee. Under today’s ruling, it should be enough to sustain a challenge for the student to show a “substantial threat” that her intended speech will be deemed unlawful.

The case is Susan B. Anthony List v. Driehaus, No. 13-193.