Susan B. Anthony List v. Driehaus

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SUSAN B. ANTHONY LIST ET AL. v. DRIEHAUS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 13–193. Argued April 22, 2014—Decided June 16, 2014
Respondent Driehaus, a former Congressman, filed a complaint with
the Ohio Elections Commission alleging that petitioner Susan B. An-
thony List (SBA) violated an Ohio law that criminalizes certain false
statements made during the course of a political campaign. Specifi-
cally, Driehaus alleged that SBA violated the law when it stated that
his vote for the Patient Protection and Affordable Care Act (ACA)
was a vote in favor of “taxpayer funded abortion.” After Driehaus
lost his re-election bid, the complaint was dismissed, but SBA contin-
ued to pursue a separate suit in Federal District Court challenging
the law on First Amendment grounds. Petitioner Coalition Opposed
to Additional Spending and Taxes (COAST) also filed a First
Amendment challenge to the Ohio law, alleging that it had planned
to disseminate materials presenting a similar message but refrained
due to the proceedings against SBA. The District Court consolidated
the two lawsuits and dismissed them as nonjusticiable, concluding
that neither suit presented a sufficiently concrete injury for purposes
of standing or ripeness. The Sixth Circuit affirmed on ripeness
grounds.
Held: Petitioners have alleged a sufficiently imminent injury for Article
III purposes. Pp. 7–18.
(a) To establish Article III standing, a plaintiff must show, inter
alia, an “injury in fact,” which must be “concrete and particularized”
and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560. When challenging a law
prior to its enforcement, a plaintiff satisfies the injury-in-fact re-
quirement where he alleges “an intention to engage in a course of
conduct arguably affected with a constitutional interest, but pro-
scribed by a statute, and there exists a credible threat of prosecution
2 SUSAN B. ANTHONY LIST v. DRIEHAUS
Syllabus
thereunder.” Babbitt v. Farm Workers, 442 U. S. 289, 298. Pp. 7–11.
(b) Petitioners have alleged a credible threat of enforcement of the
Ohio law. Pp. 11–17.
(1) Petitioners have alleged “an intention to engage in a course of
conduct arguably affected with a constitutional interest” by pleading
specific statements they intend to make in future election cycles.
Pp. 11–12.
(2) Petitioners’ intended future conduct is also “arguably . . . pro-
scribed by [the] statute.” The Ohio false statement statute sweeps
broadly, and a panel of the Ohio Elections Commission already found
probable cause to believe that SBA violated the law when it made
statements similar to those petitioners plan to make in the future.
Golden v. Zwickler, 394 U. S. 103, is distinguishable; the threat of
prosecution under an electoral leafletting ban in that case was wholly
conjectural because the plaintiff’s “sole concern” related to a former
Congressman who was unlikely to run for office again. Here, by con-
trast, petitioners’ speech focuses on the broader issue of support for
the ACA, not on the voting record of a single candidate. Nor does
SBA’s insistence that its previous statements were true render its
fears of enforcement misplaced. After all, that insistence did not pre-
vent the Commission from finding probable cause for a violation the
first time. Pp. 12–13.
(3) Finally, the threat of future enforcement is substantial.
There is a history of past enforcement against petitioners. Past en-
forcement against the same conduct is good evidence that the threat
of enforcement is not “ ‘chimerical.’ ” Steffel v. Thompson, 415 U. S.
452, 459. The credibility of that threat is bolstered by the fact that a
complaint may be filed with the State Commission by “any person,”
Ohio Rev. Code Ann. §3517.153(A), not just a prosecutor or agency.
The threatened Commission proceedings are of particular concern
because of the burden they impose on electoral speech. Moreover, the
target of a complaint may be forced to divert significant time and re-
sources to hire legal counsel and respond to discovery requests in the
crucial days before an election. But this Court need not decide
whether the threat of Commission proceedings standing alone is suf-
ficient; here, those proceedings are backed by the additional threat of
criminal prosecution. Pp. 14–17.
(c) The Sixth Circuit separately considered two other “prudential
factors”: “fitness” and “hardship.” This Court need not resolve the
continuing vitality of the prudential ripeness doctrine in this case be-
cause those factors are easily satisfied here. See Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U. S. ___. Pp. 17–18.
525 Fed. Appx. 415, reversed and remanded.
THOMAS, J., delivered the opinion for a unanimous Court.
Cite as: 573 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–193
_________________
SUSAN B. ANTHONY LIST, ET AL., PETITIONERS v.
STEVEN DRIEHAUS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 16, 2014]
JUSTICE THOMAS delivered the opinion of the Court.
Petitioners in this case seek to challenge an Ohio stat-
ute that prohibits certain “false statements” during the
course of a political campaign. The question in this case
is whether their preenforcement challenge to that law is
justiciable—and in particular, whether they have alleged a
sufficiently imminent injury for the purposes of Article III.
We conclude that they have.
I
The Ohio statute at issue prohibits certain “false state-
ment[s]” “during the course of any campaign for nomina-
tion or election to public office or office of a political party.”
Ohio Rev. Code Ann. §3517.21(B) (Lexis 2013). As rele-
vant here, the statute makes it a crime for any person to
“[m]ake a false statement concerning the voting record of a
candidate or public official,” §3517.21(B)(9), or to “[p]ost,
publish, circulate, distribute, or otherwise disseminate a
false statement concerning a candidate, either knowing
the same to be false or with reckless disregard of whether
2 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
it was false or not,” §3517.21(B)(10).1
“[A]ny person” acting on personal knowledge may file a
complaint with the Ohio Elections Commission (or Com-
mission) alleging a violation of the false statement statute.
§3517.153(A) (Lexis Supp. 2014). If filed within 60 days
of a primary election or 90 days of a general election, the
complaint is referred to a panel of at least three Commis-
sion members. §§3517.156(A), (B)(1) (Lexis 2013). The
panel must then hold an expedited hearing, generally
within two business days, §3517.156(B)(1), to determine
whether there is probable cause to believe the alleged
violation occurred, §3517.156(C). Upon a finding of proba-
ble cause, the full Commission must, within 10 days, hold
a hearing on the complaint. §3517.156(C)(2); see also Ohio
Admin. Code §3517–1–10(E) (2008).
The statute authorizes the full Commission to subpoena
witnesses and compel production of documents. Ohio Rev.
Code Ann. §3517.153(B) (Lexis Supp. 2014). At the full
hearing, the parties may make opening and closing state-
ments and present evidence. Ohio Admin. Code §§3517–
1–11(B)(2)(c), (d), (g). If the Commission determines by
“clear and convincing evidence” that a party has violated
——————
1 Section
3517.21(B) provides in relevant part:
“No person, during the course of any campaign for nomination or
election to public office or office of a political party, by means of cam-
paign materials, including sample ballots, an advertisement on radio or
television or in a newspaper or periodical, a public speech, press re-
lease, or otherwise, shall knowingly and with intent to affect the
outcome of such campaign do any of the following:
. . . . .
“(9) Make a false statement concerning the voting record of a candi-
date or public official;
“(10) Post, publish, circulate, distribute, or otherwise disseminate a
false statement concerning a candidate, either knowing the same to be
false or with reckless disregard of whether it was false or not, if the
statement is designed to promote the election, nomination, or defeat of
the candidate.”
Cite as: 573 U. S. ____ (2014) 3
Opinion of the Court
the false statement law, the Commission “shall” refer the
matter to the relevant county prosecutor. Ohio Rev. Code
Ann. §§3517.155(D)(1)–(2) (Lexis Supp. 2014). Alterna-
tively, the Commission’s regulations state that it may
simply issue a reprimand. See Ohio Admin. Code §3517–
1–14(D). Violation of the false statement statute is a first-
degree misdemeanor punishable by up to six months of
imprisonment, a fine up to $5,000, or both. Ohio Rev.
Code Ann. §§3599.40 (Lexis 2013), 3517.992(V) (Lexis
Supp. 2014). A second conviction under the false state-
ment statute is a fourth-degree felony that carries a man-
datory penalty of disfranchisement. §3599.39.
II
Petitioner Susan B. Anthony List (SBA) is a “pro-life
advocacy organization.” 525 Fed. Appx. 415, 416 (CA6
2013). During the 2010 election cycle, SBA publicly criti-
cized various Members of Congress who voted for the
Patient Protection and Affordable Care Act (ACA). In
particular, it issued a press release announcing its plan to
“educat[e] voters that their representative voted for a
health care bill that includes taxpayer-funded abortion.”
App. 49–50. The press release listed then-Congressman
Steve Driehaus, a respondent here, who voted for the
ACA. SBA also sought to display a billboard in Driehaus’
district condemning that vote. The planned billboard
would have read: “Shame on Steve Driehaus! Driehaus
voted FOR taxpayer-funded abortion.” Id., at 37. The
advertising company that owned the billboard space re-
fused to display that message, however, after Driehaus’
counsel threatened legal action.
On October 4, 2010, Driehaus filed a complaint with the
Ohio Elections Commission alleging, as relevant here, that
SBA had violated §§3517.21(B)(9) and (10) by falsely
4 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
stating that he had voted for “taxpayer-funded abortion.”2
Because Driehaus filed his complaint 29 days before the
general election, a Commission panel held an expedited
hearing. On October 14, 2010, the panel voted 2 to 1 to
find probable cause that a violation had been committed.
The full Commission set a hearing date for 10 business
days later, and the parties commenced discovery.
Driehaus noticed depositions of three SBA employees as
well as individuals affiliated with similar advocacy groups.
He also issued discovery requests for all evidence that
SBA would rely on at the Commission hearing, as well as
SBA’s communications with allied organizations, political
party committees, and Members of Congress and their
staffs.
On October 18, 2010—after the panel’s probable-cause
determination, but before the scheduled Commission
hearing—SBA filed suit in Federal District Court, seek-
ing declaratory and injunctive relief on the ground that
§§3517.21(B)(9) and (10) violate the First and Fourteenth
Amendments of the United States Constitution. The
District Court stayed the action under Younger v. Harris,
401 U. S. 37 (1971), pending completion of the Commission
proceedings. The Sixth Circuit denied SBA’s motion for an
injunction pending appeal. Driehaus and SBA eventually
agreed to postpone the full Commission hearing until after
the election.
When Driehaus lost the election in November 2010, he
moved to withdraw his complaint against SBA. The
Commission granted the motion with SBA’s consent. Once
the Commission proceedings were terminated, the District
Court lifted the stay and SBA amended its complaint. As
——————
2 The dispute about the falsity of SBA’s speech concerns two different
provisions of the ACA: (1) the subsidy to assist lower income individ-
uals in paying insurance premiums, and (2) the direct appropriation of
federal money for certain health programs such as community health
centers. See Brief for Petitioners 4–5.
Cite as: 573 U. S. ____ (2014) 5
Opinion of the Court
relevant here, the amended complaint alleged that Ohio
Rev. Code Ann. §§3517.21(B)(9) and (10) are unconstitu-
tional both facially and as applied. Specifically, the com-
plaint alleged that SBA’s speech about Driehaus had been
chilled; that SBA “intends to engage in substantially
similar activity in the future”; and that it “face[d] the
prospect of its speech and associational rights again being
chilled and burdened,” because “[a]ny complainant can
hale [it] before the [Commission], forcing it to expend time
and resources defending itself.” App. 121–122.
The District Court consolidated SBA’s suit with a sepa-
rate suit brought by petitioner Coalition Opposed to Ad-
ditional Spending and Taxes (COAST), an advocacy orga-
nization that also alleged that the same Ohio false
statement provisions are unconstitutional both facially
and as applied.3 According to its amended complaint,
COAST intended to disseminate a mass e-mail and other
materials criticizing Driehaus’ vote for the ACA as a vote
“to fund abortions with tax dollars,” but refrained from
doing so because of the Commission proceedings against
SBA. Id., at 146, 148, 162. COAST further alleged that it
“desires to make the same or similar statements about
other federal candidates who voted for” the ACA, but that
fear “of finding itself subject to the same fate” as SBA has
deterred it from doing so. Id., at 149, 157.4
——————
3 Petitioners also challenged a related “disclaimer provision,” App.
126–127, 156–157, under Ohio Rev. Code Ann. §3517.20, and COAST
raised pre-emption and due process claims. Reply Brief 21, n. 7.
Petitioners do not pursue their “disclaimer,” pre-emption, or due
process claims before us. Ibid. We also need not address SBA’s sepa-
rate challenge to the Commission’s investigatory procedures; petition-
ers have conceded that the procedures claim stands or falls with the
substantive prohibition on false statements. Ibid.; see Tr. of Oral Arg.
19. Finally, the parties agree that petitioners’ as-applied claims “are
better read as facial objections to Ohio’s law.” Reply Brief 19. Accord-
ingly, we do not separately address the as-applied claims.
4 SBA named Driehaus, the Commission’s members and its staff at-
6 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
The District Court dismissed both suits as non-
justiciable, concluding that neither suit presented a suffi-
ciently concrete injury for purposes of standing or ripe-
ness. The Sixth Circuit affirmed on ripeness grounds. 525
Fed. Appx. 415. The Court of Appeals analyzed three
factors to assess whether the case was ripe for review: (1)
the likelihood that the alleged harm would come to pass;
(2) whether the factual record was sufficiently developed;
and (3) the hardship to the parties if judicial relief were
denied.
Regarding the first factor, the Sixth Circuit concluded
that SBA’s prior injuries—the probable-cause determina-
tion and the billboard rejection—“do not help it show an
imminent threat of future prosecution,” particularly where
“the Commission never found that SBA . . . violated Ohio’s
false-statement law.” Id., at 420. The court further rea-
soned that it was speculative whether any person would
file a complaint with the Commission in the future, in part
because Driehaus took a 2-year assignment with the Peace
Corps in Africa after losing the election. Finally, the court
noted that SBA has not alleged that “it plans to lie or
recklessly disregard the veracity of its speech” in the
future, but rather maintains that the statements it in-
tends to make are factually true. Id., at 422.
As for the remaining factors, the court concluded that
the factual record was insufficiently developed with re-
spect to the content of SBA’s future speech, and that with-
holding judicial relief would not result in undue hardship
because, in the time period leading up to the 2010 election,
SBA continued to communicate its message even after
Commission proceedings were initiated. The Sixth Circuit
——————
torney (in their official capacities), and the Ohio Secretary of State (in
her official capacity) as defendants. COAST named the Commission,
the Commission’s members and its staff attorney (in their official
capacities), and the Ohio Secretary of State (in her official capacity) as
defendants. All named defendants are respondents here.
Cite as: 573 U. S. ____ (2014) 7
Opinion of the Court
therefore determined that SBA’s suit was not ripe for
review, and that its analysis as to SBA compelled the
same conclusion with respect to COAST.
We granted certiorari, 571 U. S. ___ (2014), and now
reverse.
III
A
Article III of the Constitution limits the jurisdiction of
federal courts to “Cases” and “Controversies.” U. S.
Const., Art. III, §2. The doctrine of standing gives mean-
ing to these constitutional limits by “identify[ing] those
disputes which are appropriately resolved through the
judicial process.”5 Lujan v. Defenders of Wildlife, 504 U. S.
555, 560 (1992). “The law of Article III standing, which is
built on separation-of-powers principles, serves to prevent
the judicial process from being used to usurp the powers of
the political branches.” Clapper v. Amnesty Int’l USA, 568
U. S. ___, ___, (2013) (slip op., at 9). To establish Article
III standing, a plaintiff must show (1) an “injury in fact,”
(2) a sufficient “causal connection between the injury
and the conduct complained of,” and (3) a “likel[ihood]”
that the injury “will be redressed by a favorable decision.”
Lujan, supra, at 560–561 (internal quotation marks
omitted).
This case concerns the injury-in-fact requirement, which
helps to ensure that the plaintiff has a “personal stake in
the outcome of the controversy.” Warth v. Seldin, 422
——————
5 The doctrines of standing and ripeness “originate” from the same
Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332,
335 (2006). As the parties acknowledge, the Article III standing and
ripeness issues in this case “boil down to the same question.” Med-
Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief
for Petitioners 28; Brief for Respondents 22. Consistent with our
practice in cases like Virginia v. American Booksellers Assn., Inc., 484
U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299,
n. 11 (1979), we use the term “standing” in this opinion.
8 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
U. S. 490, 498 (1975) (internal quotation marks omitted).
An injury sufficient to satisfy Article III must be “concrete
and particularized” and “actual or imminent, not ‘conjec-
tural’ or ‘hypothetical.’ ” Lujan, supra, at 560 (some inter-
nal question marks omitted). An allegation of future
injury may suffice if the threatened injury is “certainly
impending,” or there is a “ ‘substantial risk’ that the harm
will occur.” Clapper, 568 U. S., at ___, ___, n. 5 (slip op., at
10, 15, n. 5) (emphasis deleted and internal quotation
marks omitted).
“ ‘ The party invoking federal jurisdiction bears the
burden of establishing’ standing.” Id., at ___ (slip op., at
12). “[E]ach element must be supported in the same way
as any other matter on which the plaintiff bears the bur-
den of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Lujan,
supra, at 561.
B
One recurring issue in our cases is determining when
the threatened enforcement of a law creates an Article III
injury. When an individual is subject to such a threat, an
actual arrest, prosecution, or other enforcement action is
not a prerequisite to challenging the law. See Steffel v.
Thompson, 415 U. S. 452, 459 (1974) (“[I]t is not necessary
that petitioner first expose himself to actual arrest or
prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights”); see
also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118,
128–129 (2007) (“[W]here threatened action by government
is concerned, we do not require a plaintiff to expose him-
self to liability before bringing suit to challenge the basis
for the threat”). Instead, we have permitted pre-
enforcement review under circumstances that render the
threatened enforcement sufficiently imminent. Specifically,
we have held that a plaintiff satisfies the injury-in-fact
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Opinion of the Court
requirement where he alleges “an intention to engage in a
course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.” Babbitt v.
Farm Workers, 442 U. S. 289, 298 (1979). Several of our
cases illustrate the circumstances under which plaintiffs
may bring a preenforcement challenge consistent with
Article III.
In Steffel, for example, police officers threatened to
arrest petitioner and his companion for distributing hand-
bills protesting the Vietnam War. Petitioner left to avoid
arrest; his companion remained and was arrested and
charged with criminal trespass. Petitioner sought a de-
claratory judgment that the trespass statute was uncon-
stitutional as applied to him.
We determined that petitioner had alleged a credible
threat of enforcement: He had been warned to stop hand-
billing and threatened with prosecution if he disobeyed; he
stated his desire to continue handbilling (an activity he
claimed was constitutionally protected); and his compan-
ion’s prosecution showed that his “concern with arrest”
was not “ ‘ chimerical.’ ” 415 U. S., at 459. Under those
circumstances, we said, “it is not necessary that petitioner
first expose himself to actual arrest or prosecution to be
entitled to challenge a statute that he claims deters the
exercise of his constitutional rights.” Ibid.In Babbitt, we considered a preenforcement challenge to
a statute that made it an unfair labor practice to encour-
age consumers to boycott an “agricultural product . . . by
the use of dishonest, untruthful and deceptive publicity.’ ”
442 U. S., at 301. The plaintiffs contended that the law
“unconstitutionally penalize[d] inaccuracies inadvertently
uttered in the course of consumer appeals.” Ibid.Building on Steffel, we explained that a plaintiff could
bring a preenforcement suit when he “has alleged an
intention to engage in a course of conduct arguably af-
10 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
fected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution
thereunder.” Babbit, supra, at 298. We found those cir-
cumstances present in Babbitt. In that case, the law “on
its face proscribe[d] dishonest, untruthful, and deceptive
publicity.” 442 U. S., at 302. The plaintiffs had “actively
engaged in consumer publicity campaigns in the past” and
alleged “an intention to continue” those campaigns in the
future. Id., at 301. And although they did not “plan to
propagate untruths,” they argued that “ ‘ erroneous state-
ment is inevitable in free debate.’ ” Ibid. We concluded
that the plaintiffs’ fear of prosecution was not “imaginary
or wholly speculative,” and that their challenge to the
consumer publicity provision presented an Article III case
or controversy. Id., at 302.
Two other cases bear mention. In Virginia v. American
Booksellers Assn. Inc., 484 U. S. 383 (1988), we held that
booksellers could seek preenforcement review of a law
making it a crime to “ ‘knowingly display for commercial
purpose’ ” material that is “ ‘harmful to juveniles’ ” as
defined by the statute. Id., at 386. At trial, the
booksellers introduced 16 books they believed were cov-
ered by the statute and testified that costly compliance
measures would be necessary to avoid prosecution for
displaying such books. Just as in Babbitt and Steffel, we
determined that the “pre-enforcement nature” of the suit
was not “troubl[ing]” because the plaintiffs had “alleged an
actual and well-founded fear that the law will be enforced
against them.” 484 U. S., at 393.
Finally, in Holder v. Humanitarian Law Project, 561
U. S. 1 (2010), we considered a preenforcement challenge
to a law that criminalized “ ‘ knowingly provid[ing] mate-
rial support or resources to a foreign terrorist organiza-
tion.’ ” Id., at 8. The plaintiffs claimed that they had
provided support to groups designated as terrorist organi-
zations prior to the law’s enactment and would provide
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Opinion of the Court
similar support in the future. The Government had
charged 150 persons with violating the law and declined to
disavow prosecution if the plaintiffs resumed their support
of the designated organizations. We held that the claims
were justiciable: The plaintiffs faced a “ ‘credible threat’ ”
of enforcement and “ ‘should not be required to await and
undergo a criminal prosecution as the sole means of seek-
ing relief.’ ” Id., at 15.
IV
Here, SBA and COAST contend that the threat of en-
forcement of the false statement statute amounts to an
Article III injury in fact. We agree: Petitioners have al-
leged a credible threat of enforcement. See Babbitt, 442
U. S., at 298.
A
First, petitioners have alleged “an intention to engage in
a course of conduct arguably affected with a constitutional
interest.” Ibid. Both petitioners have pleaded specific
statements they intend to make in future election cycles.
SBA has already stated that representatives who voted for
the ACA supported “taxpayer-funded abortion,” and it has
alleged an “inten[t] to engage in substantially similar
activity in the future.” App. 49–50, 122. See also Human-
itarian Law Project, supra, at 15–16 (observing that plain-
tiffs had previously provided support to groups designated
as terrorist organizations and alleged they “would provide
similar support [to the same terrorist organizations] again
if the statute’s allegedly unconstitutional bar were lifted”).
COAST has alleged that it previously intended to dissemi-
nate materials criticizing a vote for the ACA as a vote “to
fund abortions with tax dollars,” and that it “desires to
make the same or similar statements about other federal
candidates who voted for [the ACA].” App. 146, 149, 162.
Because petitioners’ intended future conduct concerns
12 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
political speech, it is certainly “affected with a constitu-
tional interest.” Babbitt, supra, at 298; see also Monitor
Patriot Co. v. Roy, 401 U. S. 265, 272 (1971) (“[T]he consti-
tutional guarantee has its fullest and most urgent applica-
tion precisely to the conduct of campaigns for political
office”).
B
Next, petitioners’ intended future conduct is “argua-
bly. . . proscribed by [the] statute” they wish to challenge.
Babbitt, supra, at 298. The Ohio false statement law
sweeps broadly, see supra, at 1–2, and n. 1., and covers
the subject matter of petitioners’ intended speech. Both
SBA and COAST have alleged an intent to “[m]ake”
statements “concerning the voting record of a candidate or
public official,” §3517.21(B)(9), and to “disseminate”
statements “concerning a candidate . . . to promote the
election, nomination, or defeat of the candidate,”
§3517.21(B)(10). And, a Commission panel here already
found probable cause to believe that SBA violated the
statute when it stated that Driehaus had supported
“taxpayer-funded abortion”—the same sort of statement
petitioners plan to disseminate in the future. Under these
circumstances, we have no difficulty concluding that peti-
tioners’ intended speech is “arguably proscribed” by the
law.
Respondents incorrectly rely on Golden v. Zwickler, 394
U. S. 103 (1969). In that case, the plaintiff had previously
distributed anonymous leaflets criticizing a particular
Congressman who had since left office. Id., at 104–106,
and n. 2. The Court dismissed the plaintiff ’s challenge to
the electoral leafletting ban as nonjusticiable because his
“sole concern was literature relating to the Congressman
and his record,” and “it was most unlikely that the Con-
gressman would again be a candidate.” Id., at 109 (em-
phasis added). Under those circumstances, any threat of
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Opinion of the Court
future prosecution was “wholly conjectural.” Ibid.Here, by contrast, petitioners’ speech focuses on the
broader issue of support for the ACA, not on the voting
record of a single candidate. See Reply Brief 4–5 (identify-
ing other elected officials who plan to seek reelection as
potential objects of SBA’s criticisms). Because petitioners’
alleged future speech is not directed exclusively at
Driehaus, it does not matter whether he “may run for
office again.” Brief for Respondents 33 (internal quotation
marks omitted). As long as petitioners continue to engage
in comparable electoral speech regarding support for the
ACA, that speech will remain arguably proscribed by
Ohio’s false statement statute.
Respondents, echoing the Sixth Circuit, contend that
SBA’s fears of enforcement are misplaced because SBA
has not said it “ ‘plans to lie or recklessly disregard the
veracity of its speech.’ ” Id., at 15 (quoting 525 Fed. Appx.,
at 422). The Sixth Circuit reasoned that because SBA
“can only be liable for making a statement ‘knowing’ it is
false,” SBA’s insistence that its speech is factually true
“makes the possibility of prosecution for uttering such
statements exceedingly slim.” Id., at 422.
The Sixth Circuit misses the point. SBA’s insistence
that the allegations in its press release were true did not
prevent the Commission panel from finding probable
cause to believe that SBA had violated the law the first
time around. And, there is every reason to think that
similar speech in the future will result in similar proceed-
ings, notwithstanding SBA’s belief in the truth of its alle-
gations. 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. See,
e.g., Babbitt, 442 U. S., at 301 (case was justiciable even
though plaintiffs disavowed any intent to “propagate
untruths”).
14 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
C
Finally, the threat of future enforcement of the false
statement statute is substantial. Most obviously, there is
a history of past enforcement here: SBA was the subject of
a complaint in a recent election cycle. We have observed
that past enforcement against the same conduct is good
evidence that the threat of enforcement is not “ ‘ chimeri-
cal.’ ” Steffel, 415 U. S., at 459; cf. Clapper, 568 U. S., at
___ (slip op., at 12) (plaintiffs’ theory of standing was
“substantially undermine[d]” by their “fail[ure] to offer
any evidence that their communications ha[d] been moni-
tored” under the challenged statute). Here, the threat is
even more substantial given that the Commission panel
actually found probable cause to believe that SBA’s speech
violated the false statement statute. Indeed future com-
plainants may well “invoke the prior probable-cause find-
ing to prove that SBA knowingly lied.” Brief for Petition-
ers 32.
The credibility of that threat is bolstered by the fact that
authority to file a complaint with the Commission is not
limited to a prosecutor or an agency. Instead, the false
statement statute allows “any person” with knowledge of
the purported violation to file a complaint. §3517.153(A).
Because the universe of potential complainants is not
restricted to state officials who are constrained by explicit
guidelines or ethical obligations, there is a real risk of
complaints from, for example, political opponents. See
Brief for Michael DeWine, Attorney General of Ohio, as
Amicus Curiae 8 (hereinafter DeWine Brief); see also id.,
at 6 (noting that “the Commission has no system for weed-
ing out frivolous complaints”). And petitioners, who in-
tend to criticize candidates for political office, are easy
targets.
Finally, Commission proceedings are not a rare occur-
rence. Petitioners inform us that the Commission “ ‘han-
dles about 20 to 80 false statement complaints per year,’ ”
Cite as: 573 U. S. ____ (2014) 15
Opinion of the Court
Brief for Petitioners 46, and respondents do not deny that
the Commission frequently fields complaints alleging
violations of the false statement statute. Cf. Humani-
tarian Law Project, 561 U. S., at 16 (noting that there had
been numerous prior prosecutions under the challenged
statute). Moreover, respondents have not disavowed
enforcement if petitioners make similar statements in the
future. See Tr. of Oral Arg. 29–30; see also Humanitarian
Law Project, supra, at 16 (“The Government has not ar-
gued to this Court that plaintiffs will not be prosecuted if
they do what they say they wish to do”). In fact, the spec-
ter of enforcement is so substantial that the owner of the
billboard refused to display SBA’s message after receiving
a letter threatening Commission proceedings. On these
facts, the prospect of future enforcement is far from “imag-
inary or speculative.” Babbitt, supra, at 298.
We take the threatened Commission proceedings into
account because administrative action, like arrest or
prosecution, may give rise to harm sufficient to justify pre-
enforcement review. See Ohio Civil Rights Comm’n v.
Dayton Christian Schools, Inc., 477 U. S. 619, 625–626,
n. 1 (1986) (“If a reasonable threat of prosecution creates a
ripe controversy, we fail to see how the actual filing of the
administrative action threatening sanctions in this case
does not”). The burdens that Commission proceedings can
impose on electoral speech are of particular concern here.
As the Ohio Attorney General himself notes, the “practical
effect” of the Ohio false statement scheme is “to permit a
private complainant . . . to gain a campaign advantage
without ever having to prove the falsity of a statement.”
DeWine Brief 7. “[C]omplainants may time their submis-
sions to achieve maximum disruption of their political
opponents while calculating that an ultimate decision on
the merits will be deferred until after the relevant elec-
tion.” Id., at 14–15. Moreover, the target of a false state-
ment complaint may be forced to divert significant time
16 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
and resources to hire legal counsel and respond to discov-
ery requests in the crucial days leading up to an election.
And where, as here, a Commission panel issues a preelec-
tion probable-cause finding, “such a determination itself
may be viewed [by the electorate] as a sanction by the
State.” Id., at 13.
Although the threat of Commission proceedings is a
substantial one, we need not decide whether that threat
standing alone gives rise to an Article III injury. The
burdensome Commission proceedings here are backed by
the additional threat of criminal prosecution. We conclude
that the combination of those two threats suffices to create
an Article III injury under the circumstances of this case.
See Babbitt, supra, at 302, n. 13 (In addition to the threat
of criminal sanctions, “the prospect of issuance of an ad-
ministrative cease-and-desist order or a court-ordered
injunction against such prohibited conduct provides sub-
stantial additional support for the conclusion that appel-
lees’ challenge . . . is justiciable” (citations omitted)).
That conclusion holds true as to both SBA and COAST.
Respondents, relying on Younger v. Harris, 401 U. S. 37(1971), appear to suggest that COAST lacks standing
because it refrained from actually disseminating its
planned speech in order to avoid Commission proceedings
of its own. See Brief for Respondents 26–27, 34. In
Younger, the plaintiff had been indicted for distributing
leaflets in violation of the California Criminal Syndicalism
Act. When he challenged the constitutionality of the law
in federal court, several other plaintiffs intervened, argu-
ing that their own speech was inhibited by Harris’ prose-
cution. The Court concluded that only the plaintiff had
standing because the intervenors “d[id] not claim that
they ha[d] ever been threatened with prosecution, that a
prosecution [wa]s likely, or even that a prosecution [wa]s
remotely possible.” 401 U. S., at 42.
That is not this case. Unlike the intervenors in Younger,
Cite as: 573 U. S. ____ (2014) 17
Opinion of the Court
COAST has alleged an intent to engage in the same
speech that was the subject of a prior enforcement pro-
ceeding. Also unlike the intervenors in Younger, who had
never been threatened with prosecution, COAST has been
the subject of Commission proceedings in the past. See,
e.g., COAST Candidates PAC v. Ohio Elections Comm’n,
543 Fed. Appx. 490 (CA6 2013). COAST is far more akin
to the plaintiff in Steffel, who was not arrested alongside
his handbilling companion but was nevertheless threat-
ened with prosecution for similar speech. 415 U. S., at
459.
In sum, we find that both SBA and COAST have alleged
a credible threat of enforcement.
V
In concluding that petitioners’ claims were not justicia-
ble, the Sixth Circuit separately considered two other
factors: whether the factual record was sufficiently devel-
oped, and whether hardship to the parties would result if
judicial relief is denied at this stage in the proceedings.
525 Fed. Appx., at 419. Respondents contend that these
“prudential ripeness” factors confirm that the claims at
issue are nonjusticiable. Brief for Respondents 17. But
we have already concluded that petitioners have alleged a
sufficient Article III injury. To the extent respondents
would have us deem petitioners’ claims nonjusticiable “on
grounds that are ‘prudential,’ rather than constitutional,”
“[t]hat request is in some tension with our recent reaffir-
mation of the principle that ‘a federal court’s obligation to
hear and decide’ cases within its jurisdiction ‘is virtually
unflagging.’ ” Lexmark Int’l, Inc. v. Static Control Compo-
nents, Inc., 572 U. S. ___, ___ (2014) (slip op., at 6) (quot-
ing Sprint Communications, Inc. v. Jacobs, 571 U. S. ___,
___ (2013) (slip op., at 6); some internal quotation marks
omitted).
In any event, we need not resolve the continuing vitality
18 SUSAN B. ANTHONY LIST v. DRIEHAUS
Opinion of the Court
of the prudential ripeness doctrine in this case because the
“fitness” and “hardship” factors are easily satisfied here.
First, petitioners’ challenge to the Ohio false statement
statute presents an issue that is “purely legal, and will not
be clarified by further factual development.” Thomas v.
Union Carbide Agricultural Products Co., 473 U. S. 568,
581 (1985). And denying prompt judicial review would
impose a substantial hardship on petitioners, forcing them
to choose between refraining from core political speech on
the one hand, or engaging in that speech and risking
costly Commission proceedings and criminal prosecution
on the other.
* * *
Petitioners in this case have demonstrated an injury in
fact sufficient for Article III standing. We accordingly
reverse the judgment of the United States Court of Ap-
peals for the Sixth Circuit and remand the case for further
proceedings consistent with this opinion, including a
determination whether the remaining Article III standing
requirements are met.
It is so ordered.