In Susan B. Anthony List v. Driehaus the Supreme Court held unanimously that Susan B. Anthony List
(SBA) had alleged a “sufficiently imminent injury” to bring a pre-enforcement challenge to the
constitutionality of Ohio’s campaign “false statements” statute. Most states have similar statutes.
During the 2010 election cycle SBA intended to run a billboard criticizing then-Congressman Driehaus for
supporting taxpayer funded abortion by voting in favor of the Affordable Care Act. Driehaus filed a
complaint with the Ohio Elections Commission claiming that SBA violated Ohio’s “false statements”
statute that prevents making a false statement concerning the voting record of a candidate. A panel of
the Commission found probable cause a violation had occurred but Driehaus lost the election before the
full Commission could decide the issue. Even though the Commission proceedings where then dropped,
SBA brought a lawsuit alleging the “false statements” statute is unconstitutional.
The question in this case is whether SBA had an injury-in-fact, which is one of the requirements to have
“standing” to bring a lawsuit, even though SBA faced no current enforcement action. The Court
concluded SBA alleged a credible threat of enforcement because (1) it intended to make similar
statements in future elections, (2) based on the Commission panel findings it was arguable SBA’s speech
was proscribed by the statute, and (3) given that SBA was just the subject of a complaint, the threat of
future enforcement is substantial.
The Supreme Court did not decide whether Ohio’s “false statements” statute is constitutional. Instead,
it decided that SBA List has standing to have a lower court decide that question.
Summary Prepared by Lisa Soronen, State and Local Legal Center