In a 2013 ruling, a federal appeals court in Cincinnati threw out a First Amendment challenge by an anti-abortion political committee that sought to invalidate an Ohio law penalizing factually false speech in the course of political campaigns. The Sixth Circuit U.S. Court of Appeals decided that the Susan B. Anthony List lacked legal grounds to bring the case because the group was not penalized for its ads in a U.S. House race — the candidate targeted by the Fund was defeated and never followed through with his complaint — and the Fund could not prove that prosecution was “imminent” in the future. The Sixth Circuit ruling raised doubts about whether a speaker could ever challenge a law as unconstitutional without actually defying the law and being penalized — which may be too great a risk for a speaker facing jail or school expulsion.
The SPLC filed a brief supporting the Fund’s argument that a speaker cannot be required to prove prosecution is “imminent” (or has actually occurred) before challenging an unconstitutional law. It should be enough, said the SPLC, that the speaker reasonably fears being penalized and is intimidated from speaking because of that fear. “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. In a 9-0 ruling issued in June 2014, the Court unanimously rejected the Sixth Circuit’s view and agreed with the view expressed by SPLC and others that a legal challenge is ripe for court review as long as the speaker plans to engage in “arguably” protected speech but faces a “credible threat of enforcement” of a law that penalizes speech.