Supreme Court Update: Susan B. Anthony List v. Driehaus (13-193) and Lane v. Franks (13-483)

June 20, 2014 Supreme Court Update

Greetings, Court fans!

The Court seems to be clearing out some of the "easy" opinions this week, in anticipation for the blockbusters to come. Today, we bring you summaries of two unanimous decisions, Susan B. Anthony List v. Driehaus (13-193), on standing in a case involving political speech, and Lane v. Franks (13-483), on whether the First Amendment protects the sworn testimony of public employees. We'll also catch up on recent orders.

In what could be called a first-year law student's dream, the Court's decision in Susan B. Anthony List v. Driehaus (13-193), involved election laws, free speech, and abortion. Trifecta! Alas, all of those issues were put off for a later date; the Driehaus decision turned on the less sexy, but no less important issue of Article III standing. Last year, in Clapper v. Amnesty Int'l (2013), the Court caused a stir by seemingly suggesting that a litigant seeking to bring a pre-enforcement challenge to a statute must show "certainly impending" harm in order to have standing. In Driehaus, a unanimous Court held that "[a]n allegation of future injury may suffice if the threatened injury is 'certainly impending' or there is a 'substantial risk' that the harm will occur." In so holding, the Court resurrected the familiar "substantial risk" test for ripeness.

The underlying facts in Driehaus are anything but dry. Ohio passed a statute that made it a crime to intentionally or recklessly make "false statements concerning the voting record of a candidate or public official." Any person could file a complaint alleging a violation of the statute with the Ohio Election Commission. The Commission would review the complaint and decide whether to refer the matter to a prosecutor. Susan B. Anthony List ("SBA"), a pro-life advocacy organization, criticized members of Congress during the 2010 midterm elections for supporting the Affordable Care Act. It targeted then-Congressman Steve Driehaus with a proposed billboard that would have read "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortions." Driehaus filed a complaint with the Commission, alleging that the billboard was a false statement regarding his voting record. A panel of the Commission found probable cause that a violation of the statute had occurred and referred the matter to the full Commission for a hearing. Driehaus and SBA agreed to postpone the hearing until after the election, which Driehaus lost. He then withdrew his complaint against SBA.

SBA nonetheless sought relief in federal court, alleging that the Ohio statute was unconstitutional both facially and as applied. The district court consolidated the case with another action brought by an organization called COAST. COAST claimed that it had intended to make similar statements about Driehaus but had been chilled by the statute. The district court dismissed both suits as nonjusticiable and the Sixth Circuit affirmed on ripeness grounds.

A unanimous Court reversed, with Justice Thomas wielding the pen. The Court held that a plaintiff meets the ripeness requirement when: (1) it alleges an intention to engage in conduct that is arguably affected with a constitutional interest; (2) the conduct is arguably proscribed by statute; and (3) there is a credible threat of prosecution. First, the Court recognized that both SBA and COAST had pled that they intended to make specific statements in future elections equating a vote for the ACA with a vote for taxpayer-funded abortion. Here, the Court distinguished an earlier case, Golden v. Zwickler, 394 U.S. 103 (1969), in which it had found a pre-enforcement challenge to an election law to be nonjusticiable. The plaintiff in Golden complained that a law interfered with his distribution of campaign literature, but the literature concerned only a specific Congressman who had lost his election and was unlikely to be reelected. By contrast, both SBA and COAST were concerned with the broader issue of ACA votes and not necessarily the voting record of a single (former) candidate. Second, the petitioners' conduct was arguably proscribed by the statute because the Ohio law swept broadly and the Commission panel here had already found probable cause to believe the statute was violated. The Court found no problem with the fact that SBA and COAST believed their future statements were true because nothing requires a plaintiff to confess that he will in fact violate the law. Third, the threat of future enforcement was substantial because there was history of past enforcement, "any person" could bring a complaint to the Commission, and Commission proceedings are not a rare occurrence. The Court noted that an administrative action, like an arrest or prosecution, can justify pre-enforcement review. The Court observed that in this case, the threat of Commission proceedings was backed by the additional threat of criminal prosecution, even if that threat was remote. Though the ripeness question has now been resolved, First Years should not get their hopes up: The Court remanded for further proceedings, "including a determination whether the remaining Article III standing requirements are met."

The First Amendment was at the forefront of our next case, Lane v. Franks (13-483), which addressed the often knotty issue of the free speech rights of public employees. The Court first addressed this issue over 45 years ago in Pickering v. Bd. of Educ. of Township High Sch. Dist. 205 (1968), and more recently in Garcetti v. Ceballos (2006). These cases have set forth a balancing test that weighs the rights of government employees (and the public's interest in having employees participate in the marketplace of ideas) against the interests of the government in controlling its workplaces. The first step in the Pickering balancing test is to determine whether the employee is speaking on a matter of public concern. If not, then he has no First Amendment cause of action based on his employer's reaction to the speech. But if the speech is on a matter of public concern, the question is whether the government employer had an adequate justification for treating the employee different from other members of the general public. Lane primarily concerned the first prong of this test, specifically "whether the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities." (Spoiler: it does.)

Edward Lane worked for Central Alabama Community College ("CACC") as the Director of Community Intensive Training for Youth ("CITY"), a statewide program for underprivileged youth. During a comprehensive audit, Lane discovered that Patricia Schmitz, an Alabama State Representative who was on his payroll, was not actually doing any work. Lane shared this finding with higher ups at CACC, but was warned that firing Schmitz would lead to negative repercussions. But, after Schmitz stated that she "wished to continue to serve the CITY program in the same manner as she had in the past," (i.e. getting paid for nothing), Lane gave her the boot. But he didn't stop there. To add indictment to injury, Lane testified against Schmitz before a federal grand jury, which charged her with mail fraud, and again (under subpoena) at her criminal trial. Lane's actions apparently did not sit well with his bosses at CACC. He was terminated, nine months before the entire CITY program at CACC was shut down. Lane sued CACC's President, Franks, but the District Court granted Franks summary judgment on qualified-immunity grounds, concluding that it was reasonable for him to believe that Lane's speech was not protected by the First Amendment, inasmuch as he was testifying as a public employee, and not as a private citizen on a matter of public concern. The Eleventh Circuit affirmed, but a unanimous Supreme Court reversed.

Writing for the Court, Justice Sotomayor concluded that "[t]ruthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes . . . even when the testimony relates to his public employment or concerns information learned during that employment." She rejected the Eleventh Circuit's reasoning (relying on Garcetti), that because Lane had learned of the subject matter of his testimony in the course of his employment, he necessarily testified as an employee and not a citizen. "The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Whereas Garcetti concerned an internal memorandum prepared by a government prosecutor, something that came under his official responsibilities, Lane's testimony was not given pursuant to his official responsibilities, even though it related to his employment. Sotomayor went on to find that Lane's testimony, which concerned political corruption and misuse of state funds, "obviously involves a matter of significant public concern." Finding that "the employer's side of the Pickering scale is entirely empty," Justice Sotomayor concluded that the speech was indeed entitled to First Amendment protection. Nevertheless, the Court affirmed the judgment for Franks on qualified-immunity grounds because, at the time Franks pulled the trigger, there was no Eleventh Circuit or Supreme Court authority clearly holding that an employee's testimony under oath outside the scope of his ordinary job responsibilities is protected speech.

Justice Thomas, joined by Scalia and Alito, filed a concurrence, basically wondering out loud why it took Justice Sotomayor 17 pages to answer the question in this case, which "requires little more than a straightforward application of Garcetti." Thomas agreed that, because Lane did not offer testimony "pursuant to" his ordinary job responsibilities, his speech was protected. But Thomas stressed that the outcome might be different if Lane were a police officer or some other type of public employee testifying in the course of his ordinary job responsibilities. As Justice Sotomayor acknowledge in a footnote, that question is left for another day.

As for recent orders, the Court granted cert in Elonis v. United States (13-983), which asks: "Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person [under 18 U.S.C. § 875 (c)] requires proof of the defendant's subjective intent to threaten … or whether it is enough to show that a ‘reasonable person' would regard the statement as threatening."

The Court also granted cert in the consolidated cases of Perez v. Mortgage Bankers Assoc. (13-1041) and Nickols v. Mortgage Bankers Assoc. (13-1052), which ask: "Whether a federal agency must engage in notice and comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation."

Finally, the Court asked for the SG's views on the petitions for cert in Kellogg Brown & Root Services v. Harris (13-817) and KBR, Inc. v. Metzgar (13-1241), which together ask: (1) "Whether the political question doctrine bars state-law tort claims against a battlefield support contractor operating in an active war zone when adjudication of those claims would necessarily require examining sensitive military judgments;" and (2) Whether the Federal Tort Claims Act's "combatant-activities exception," 28 U.S.C. § 2680(j), "preempts state-law tort claims against a battlefield support contractor that arise out of the U.S. military's combatant activities in a theater of combat;" and (3) "Whether the doctrine of derivative sovereign immunity bars state-law tort claims against a private contractor performing delegated public functions where the government would be immune from suit if it performed the same functions."

That's all for now, but we've got a few more summaries in the queue, so stay tuned!

Kim, Jenny, & Tadhg