Coalition Urges Supreme Court to Uphold Right to Bring First Amendment Challenges

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A broad range of booksellers, librarians, publishers, and organizations, including the American Booksellers Association and the American Booksellers Foundation for Free Expression (ABFFE), have submitted a friend-of-the-court brief in the case of Susan B. Anthony List v. Driehaus (No. 13-193), which will be argued before the Supreme Court on April 22. The groups that helped establish three decades of free speech case law are urging the Court to reaffirm the principle that people who have a well-founded fear of prosecution under a law that infringes First Amendment rights should have standing to bring a “pre-enforcement” challenge to the law and need not face a choice between engaging in self-censorship and risking criminal prosecution.

The brief asks the Court to adhere to the standard set forth by the Supreme Court in 1988 in Virginia v. American Booksellers Association, a milestone case brought by members of Media Coalition. The organizations and their members represented in the brief filed on Monday, March 3, have all brought challenges to censorship laws under the standard affirmed in Virginia v. ABA.

"ABA has joined a broad coalition in submitting this friend-of-the-court brief because we believe it is of critical importance that this established legal precedent — which supports a vigorous defense of the First Amendment and readers' rights — remains in place," said ABA CEO Oren Teicher.

ABFFE President Chris Finan noted that “one of the pleasures of this brief was communicating with the booksellers and regional bookseller associations who were plaintiffs in the 23 First Amendment challenges we have filed over the last 35 years. With their help, we won them all!” (Read more from Chris Finan on this issue.)

In Driehaus, a U.S. District Court in Ohio dismissed a challenge by Susan B. Anthony List (SBAL) to a state law regulating speech in campaign advertising. The Court found that SBAL lacked standing to file a “pre-enforcement” challenge because it couldn’t demonstrate that prosecution was likely or imminent. The U.S. Court of Appeals for the Sixth Circuit affirmed the decision, and SBAL then sought review by the Supreme Court. Oral argument in the case is set for April 22, 2014.

Media Coalition said that a pre-enforcement challenge is a critical tool for protecting free speech because the passage of an unconstitutional law can have a chilling effect that would make people afraid to exercise their rights. Challenges brought either before or soon after a law becomes effective can eliminate the danger of the chilling effect by obtaining a prompt judicial decision on the law’s constitutionality and, if necessary, a preliminary injunction that suspends the law while the case is being litigated.

The legal question addressed in the friend-of-the-court brief is of special importance to bookstores and libraries, said Media Coalition. The brief was filed on behalf of the American Booksellers Association, American Booksellers Foundation for Free Expression, American Library Association, Association of American Publishers, Comic Book Legal Defense Fund, Freedom to Read Foundation, Great Lakes Independent Booksellers Association, Mountain & Plains Independent Booksellers Association, Pacific Northwest Booksellers Association, Southern Independent Booksellers Alliance, Annie Bloom’s Books, Changing Hands Bookstore, Harvard Book Store, Paulina Springs Books, Powell’s Bookstore, Schuler Books & Music, Tattered Cover Book Store, The King’s English Bookshop, Weller Book Works, Village Books, and Dark Horse Comics.

The brief cites 23 challenges over the last 35 years that could have been dismissed under the Sixth Circuit’s definition of standing. In all of those challenges, the statutes were enjoined or narrowed to comply with the First Amendment. To illustrate the breadth and scope of the rulings, Media Coalition has created an interactive map of the cases cited in its brief.

Media Coalition’s brief was filed by Michael Bamberger and Richard Zuckerman of Dentons US LLP.