soapbox

Silenced by Golden?

The usual expectation for SBA List is that it will be 9-0 to reverse the 6th circuit on standing/ripeness and not reach the merits. That's not the only possible outcome. Breyer, Scalia, and Roberts all expressed concerns about how long remand would take, especially if certification to the Ohio Supreme Court becomes part of the process. The merits were not fully briefed and argued, but it is still possible that the court will go straight to the merits. Perhaps a stay or injunction is an option, which gets further into Supreme Court procedure than I know about.

Sotomeyer, I think, was the first to bring up Golden. Golden v. Zwickler was Zwickler's second visit to the Supreme Court; it had been there earlier as Zwickler v Koota. Last fall I got interested in this case and went and read the lower court opinions for the first time. I have not found them online. I have known of the case for about 15 years. Zwickler had authored anonymous fliers criticizing his congressman for not being sufficiently pro-Israel. Koota was the district attorney. Koota's grandson has been in the news lately as the guy who won a so-far unenforceable large judgment in Ecuador against Exxon/Chevron.
The case built on Talley v California, and could have been the next McIntyre, except that in Golden the Court found that his claim had become moot.

His congressman had accepted a job as a federal judge, so the court ruled that his circumstances were not capable of review. Similarly, Driehaus has moved to Africa where he is working in the Peace Corp in Swaziland. I think the Court got Golden wrong. His concern was not with his particular congressman, but had to do with US policy. Golden was circa 1969, McIntyre didn't come along until 1995, 26 years later. The issue of the constitutionality of anonymous criticism of congresscritters remains unresolved.

It is possible, if unlikely, that Sotomayor or one of the others will find the case moot following Golden. It is possible, but unlikely, that the court will overrule Golden. More likely they will reverse this case, and mention Golden as distinguishable although it probably really isn't.

After CU, the reform community has looked to enhancing disclosure as a way to chill speech, thinking that they now have the Court on their side. SBA is not about disclosure specifically, but is about government microregulation of campaign speech. Ohio's regulatory system seems to have no defenders. Ohio's "ministry of truth" has been on my radar for years, but now that it's finally been challenged, it's turned out to be a paper tiger. It will be interesting to see if the opinion or opinions
in SBA will give any ammo to further challenges to the speech police.
Amazon offers, for $25ish, a collection of briefs and such on Zwickler's case. It's on my wishlist.
Sales may get a bump now that the Court has called attention to the case.