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FTRF, ALA file amicus brief in US Supreme Court case on ability to bring First Amendment challenges

Tuesday, March 4, 2014   (0 Comments)
Posted by: Jonathan Kelley
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Contact: Barbara M. Jones
Executive Director, Freedom to Read Foundation
Director, American Library Association Office for Intellectual Freedom
(312) 280-4222

The Freedom to Read Foundation (FTRF) and American Library Association (ALA) on Friday joined a broad range of organizations and bookstores in filing an amicus brief with the U.S. Supreme Court  in a case potentially affecting the right to challenge laws that infringe on the First Amendment prior to their enforcement.

The case, Susan B. Anthony List v. Driehaus, is on appeal to the High Court after the Sixth Circuit affirmed a lower court ruling that the Susan B. Anthony List (SBAL) lacked standing to submit a facial (or pre-enforcement) challenge to an Ohio law regulating speech in campaign advertising. The lower court found that SBAL couldn't demonstrate that prosecution under the law was "likely" or "imminent."

In the brief, written by Michael Bamberger and Richard Zuckerman of Dentons US LLP, general counsel to Media Coalition, the amici argue that three decades of case law have clearly demonstrated the importance and effectiveness of allowing pre-enforcement challenges to statutes that violate the First Amendment.  The brief cites 23 cases in which such statutes were found unconstitutional or were only found constitutional under narrow readings. Amici argue that the Sixth Circuit's definition of standing could have made it difficult for these challenges to be filed, thus creating a chilling effect on the First Amendment rights of booksellers, publishers, librarians, and others who had demonstrated that they could be subject to prosecution if the statutes were allowed to go into effect.

FTRF executive director and ALA Office for Intellectual Freedom director Barbara Jones said, 

“The importance of the brief submitted by FTRF, ALA, and the other organizations goes beyond the facts of any one case and speaks to the fundamental principle that Americans shouldn’t have to wait for arrests or other penalties to occur in order to challenge laws that clearly violate our freedoms to speak, publish, and receive information. The library community is pleased to join this effort to preserve our right to challenge unconstitutional laws before they impair our freedom.”

Media Coalition has created a web page with more information about the case, a link to the brief, and an interactive map detailing the cases cited in the brief (including many in which FTRF and ALA participated).  Other parties in the brief include the American Booksellers Association, American Booksellers Foundation for Free Expression, Association of American Publishers, Comic Book Legal Defense Fund, Dark Horse Comics, and several book stores and bookseller associations.