Media Coalition, ABFFE Applaud Supreme Court Ruling

In a unanimous decision on Monday, the U.S. Supreme Court kept the court house door open to booksellers, publishers, and librarians to bring “pre-enforcement” challenges to censorship laws.The ruling held that “a credible threat of enforcement” is a sufficient threat of injury to establish standing in a First Amendment case when bringing a “pre-enforcement” challenge. 

In March, a broad range of booksellers, librarians, publishers, and media organizations submitted a friend-of-the-court brief in the case, Susan B. Anthony List v. Driehaus (No. 13-193). The brief urged adherence 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 standard stated that a person who has 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.

“The Supreme Court’s unanimous decision today is great news,” said Chris Finan, president of the American Booksellers Foundation for Free Expression. “Booksellers play a leading role in challenging unconstitutional laws, and this decision means they can continue to feel confident about going to court to defend the First Amendment rights of their customers.”

David Horowitz, executive director of Media Coalition, said, “We are gratified that the court today recognized the immense harm that can occur when individuals are required to put their liberty at risk in order to vindicate their free speech rights. This decision affirms the principle that a person, organization, or business should not have to risk prosecution to challenge the Constitutionality of a law.”

Horowitz stressed that a pre-enforcement challenge is a critical tool for protecting free speech, because the passage of an unconstitutional law can have a substantial chilling effect that would make people afraid to exercise their rights. A pre-enforcement challenge, brought either before or soon after a law goes into effect, 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, he explained.

In Monday’s decision, the justices cited Virginia v. ABA as one of several cases that “bear mention” because it helped to establish the legal principle that a “well-founded fear” of prosecution was sufficient to justify a pre-enforcement First Amendment challenge.

The organizations and their members who signed the brief have all brought challenges to censorship laws under the standard affirmed in Virginia v. ABA. An Interactive Map illustrates the impact and scope of free speech cases.

Signatories of the brief in Driehaus were 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; Tattered Cover; The King’s English; Weller Book Works; Village Books; and Dark Horse Comics.

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 United States Court of Appeals for the Sixth Circuit affirmed the decision, and SBAL then sought review by the Supreme Court. The Supreme Court heard the oral argument in April.