Sunday, August 7, 2022
Courts often defer to administrative agencies on matters that require the agency’s specialized expertise. Yet even the embattled Chevron deference doctrine puts the brakes on judicial deference sensibly when Congress has spoken on the matter. After all, the statute’s meaning must reflect legislative intent.
Still, in defending the constitutionality of a statute, States will ask courts to read the statute more narrowly than its language supports, to avoid invalidation as applied to common situations. The Supreme Court has supplied advocates with precedent that should overcome these attempts to recast legislative language, particularly where free speech concerns predominate.
For example, in consolidated lawsuits in Susan B. Anthony List v. Driehaus, two organizations brought facial and as-applied challenges to an Ohio statute that prohibited certain false statements made during a political campaign. The plaintiffs alleged that they intended to make statements that could be deemed false and then “face the prospect of its speech and associational rights again being chilled and burdened,” as it had when a complaint about their speech was previously filed.
In holding that pre-enforcement standing existed, the Court found Babbitt v. Farm Workers instructive. There, the plaintiffs challenged a law that proscribed “dishonest, untruthful, and deceptive publicity.” The plaintiffs alleged that they feared prosecution because erroneous statements are “inevitable in free debate,” that they had engaged in past consumer publicity campaigns and any future campaign would be scrutinized for truthfulness, and that they had “an intention to continue” campaigns like the ones they had mounted in the past. Notably, they did not claim that past campaigns were dishonest or deceptive or that future campaigns would be, or that any official action against them was likely or imminent. Still, Babbitt concluded that the “plaintiffs’ fear of prosecution was not ‘imaginary or wholly speculative’” given the statute’s language and allowed the case to proceed.
Two other cases also informed the Susan B. Anthony Court’s analysis. Virginia v. Am. Booksellers Ass’n Inc., found a credible threat of enforcement to a law that criminalized the commercial display of printed material deemed harmful to juveniles. At trial, the plaintiff booksellers named “16 books they believed were covered by the statute” and how compliance to avoid prosecution would be costly. In defense, Virginia contended that the statute was “much narrower than plaintiffs allege” and even conceded that the law would be unconstitutional “if the statute is read as plaintiffs contend.” Nonetheless, the Court found no reason to believe the “newly enacted law will not be enforced” and that one plain harm is “self-censorship; a harm that can be realized even without an actual prosecution.”
In the end, a reasonable reading of a statute based on its language and the lack of discretion an agency (or a court) has to re-write a statute, a purely legislative act, requires the appellate advocate to push back on agency attempts to recast plain language into a more defensible posture.
 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).
 Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).
 573 U.S. 149 (2014).
 Id. at 155.
 442 U.S. 289 (1979).
 Id. at 302.
 Id. at 301.
 Susan B. Anthony, 573 U.S. at 160 (quoting Babbitt, 442 U.S. at 302).
 484 U.S. 383 (1988).
 Susan B. Anthony, 573 U.S. at 160 (describing American Booksellers)
 Am. Booksellers, 484 U.S. at 393-94.
 Id. at 393.