Lopez v. Candaele

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JONATHAN LOPEZ, 
Plaintiff-Appellee,
v.
KELLY G. CANDAELE, in his
individual and official capacities
as member of the Los Angeles
Community College District Board
of Trustees; MONA FIELD, in her
individual and official capacities
as member of the Los Angeles
Community College District Board
of Trustees; GEORGIA L. MERCER,
in her individual and official
capacities as member of the Los
Angeles Community College 
District Board of Trustees; NANCY
PEARLMAN, in her individual and
official capacities as member of
the Los Angeles Community
College District Board of Trustees;
ANGELA J. REDDOCK, in her
individual and official capacities
as member of the Los Angeles
Community College District Board
of Trustees; MIGUEL SANTIAGO, in
his individual and official
capacities as member of the Los
Angeles Community College
District Board of Trustees;


20143
20144 LOPEZ v. CANDAELE

SYLVIA SCOTT-HAYES, in her 
individual and official capacities
as member of the Los Angeles
Community College District Board
of Trustees; GENE LITTLE, in his
individual and official capacities
as Director of the Los Angeles
Community College District Office
of Diversity Programs; JAMILLAH
No. 09-56238
MOORE, in her individual and
official capacities as President of D.C. No.
Los Angeles City College; 2:09-cv-00995-
ALLISON JONES, in her individual GHK-FFM
and official capacities as Dean of  ORDER
Academic Affairs at Los Angeles AMENDING
City College; CRISTY PASSMAN, in OPINION AND
her individual and official AMENDED
capacities as Compliance Officer OPINION
at Los Angeles City College,
Defendants-Appellants,
and
JOHN MATTESON, in his individual
and official capacities as Professor
of Speech at Los Angeles City
College,
Defendant.

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding

Argued and Submitted
March 3, 2010—Pasadena, California
 LOPEZ v. CANDAELE 20145
Filed September 17, 2010
Amended December 16, 2010

Before: Ronald M. Gould, Sandra S. Ikuta and
N. Randy Smith, Circuit Judges.

Opinion by Judge Ikuta
20148 LOPEZ v. CANDAELE

COUNSEL

Mary L. Dowell and David A. Urban, Liebert Cassidy Whit-
more, P.C., Los Angeles, California, for the appellants.

David J. Hacker and Heather G. Hacker, Alliance Defense
Fund, Folsom, California; David A. French, Alliance Defense
Fund, Columbia, Tennessee, for the appellee.

Sam Kim and Michael L. Parker, Sam Kim and Associates,
P.C., Buena Park, California, for the appellee.

ORDER

The opinion filed September 17, 2010, is amended as fol-
lows:

At Slip Op. 14377, line 17: Before “Because Lopez fails to
establish . . . ” insert:

No future petitions for rehearing or petitions for rehearing
en banc will be entertained.
20150 LOPEZ v. CANDAELE
OPINION

IKUTA, Circuit Judge:

Today we consider a student’s First Amendment challenge
to a community college sexual harassment policy. First
Amendment cases raise “unique standing considerations,”
Ariz. Right to Life Political Action Comm. v. Bayless, 320
F.3d 1002, 1006 (9th Cir. 2003), that “tilt[ ] dramatically
toward a finding of standing,” LSO, Ltd. v. Stroh, 205 F.3d
1146, 1155 (9th Cir. 2000). Despite this lowered threshold for
establishing standing and the disturbing facts of this case, we
conclude that the student failed to make a clear showing that
his intended speech on religious topics gave rise to a specific
and credible threat of adverse action from college officials
under the college’s sexual harassment policy. Because the stu-
dent failed to carry the burden of proving he suffered an
injury in fact, he does not satisfy the “irreducible constitu-
tional minimum of standing” necessary to challenge the pol-
icy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

I

For the limited purpose of reviewing the preliminary
injunction at issue, the salient facts are undisputed.

A

In the fall of 2008, plaintiff Jonathan Lopez was a student
at Los Angeles City College (LACC), which is one of the
public colleges within the Los Angeles Community College
District (the District). At the time Lopez attended LACC, the
District had promulgated a sexual harassment policy compris-
ing a chapter of the District’s “Board Rules and Administra-
tive Regulations,” as authorized under state law. See Cal.
Educ. Code §§ 66300, 70902. LACC is subject to the Dis-
trict’s regulations, including its sexual harassment policy.
Two sections of this sexual harassment policy are relevant
 LOPEZ v. CANDAELE 20151
here. Section 15001 sets forth the District’s general policy on
this issue, stating in relevant part:

The policy of the Los Angeles Community College
District is to provide an educational, employment
and business environment free from unwelcome sex-
ual advances, requests for sexual favors, and other
verbal or physical conduct or communications con-
stituting sexual harassment. Employees, students, or
other persons acting on behalf of the District who
engage in sexual harassment as defined in this policy
or by state or federal law shall be subject to disci-
pline, up to and including discharge, expulsion or
termination of contract.

Section 15003(A) defines “sexual harassment” as including:

Unwelcome sexual advances, requests for sexual
favors, and other verbal, visual, or physical conduct
of a sexual nature, made by someone from or in the
workplace or in the educational setting, under any of
the following conditions: . . . (3) The conduct has the
purpose or effect of having a negative impact upon
the individual’s work or academic performance, or
of creating an intimidating, hostile or offensive work
or educational environment.1

According to the policy, the District’s Director of Affirma-
tive Action Programs oversees the implementation of the sex-
1
The defendants argue that this version of the sexual harassment policy
is no longer applicable, as it was superseded in 2007 by a new policy that
redefined the term “sexual harassment,” and therefore Lopez’s challenge
is moot. We do not reach this argument, because we decide the case on
standing grounds. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
549 U.S. 422, 431 (2007) (holding that there is “no mandatory sequencing
of jurisdictional issues,” and we have “leeway to choose among threshold
grounds for denying audience to a case on the merits” (citations and inter-
nal quotation marks omitted)).
20152 LOPEZ v. CANDAELE
ual harassment policy, but may delegate these duties to an
individual Sexual Harassment Compliance Officer. District
officials may take disciplinary action only in accordance with
due process rights as well as any applicable collective bar-
gaining agreement. For students, “disciplinary action” ranges
from verbal warnings to expulsion. For employees, “disciplin-
ary action” ranges from verbal warnings to dismissals.
According to Allison Jones, LACC’s Dean of Academic
Affairs, neither LACC nor the District has enforced the sexual
harassment policy against any teacher, student or employee.
Lopez does not dispute this statement.

Sections 15001 and 15003 of the policy appear in various
other official documents. For example, the quoted portion of
Section 15001 appears twice in the LACC student handbook.
The “Rules for Student Conduct” section of the handbook
states that “[s]tudent conduct in all of the Los Angeles Com-
munity Colleges must conform to District and [LACC] rules
and regulations,” and that violations will result in disciplinary
action. In addition, the website of the District’s Office of
Diversity Programs contains relevant portions of Section
15003, and gives some examples of sexual harassment,
including “[v]erbal harassment,” “[d]isparaging sexual
remarks about your gender,” “[d]isplay of sexually suggestive
objects, pictures, cartoons, posters, screen savers,” and
“[m]aking unwelcome, unsolicited contact with sexual over-
tones (written, verbal, physical and/or visual contact).” The
website also offers “[s]imple guidelines for avoiding sexual
harassment,” which include the admonition, “If [you are]
unsure if certain comments or behavior are offensive do not
do it, do not say it.” The LACC Compliance Office’s website
likewise includes the relevant portions of Section 15003, and
defines one form of sexual harassment as “generalized sexist
statements, actions and behavior that convey insulting, intru-
sive or degrading attitudes/comments about women or men.
Examples include insulting remarks; intrusive comments
about physical appearance; offensive written material such as
 LOPEZ v. CANDAELE 20153
graffiti, calendars, cartoons, emails; obscene gestures or
sounds; sexual slurs, obscene jokes, humor about sex.”

B

During the fall semester, Lopez was a student in Speech
101, taught by Professor John Matteson. For one assignment,
Matteson directed his students to make an informative speech
on a topic of their choosing. Lopez is a devout Christian who
believes, as a tenet of his faith, that he must share his religious
beliefs with others. For this assignment, Lopez chose to speak
about God and the ways in which he had witnessed God act
both in his life and in the lives of others. In the course of giv-
ing his speech, Lopez read a dictionary definition of marriage
as being a union between a man and a woman, and read two
verses from the Bible.2 After Lopez made these statements,
but while still in the middle of his speech, Matteson inter-
rupted Lopez, called Lopez a “fascist bastard,” and refused to
allow Lopez to finish his speech. Matteson told the class that
anyone who was offended could leave. When no one left,
Matteson dismissed the class. In lieu of giving Lopez a grade,
Matteson wrote on Lopez’s speech evaluation form, “[a]sk
God what your grade is” and “pros[elytising] is inappropriate
in public school.”

The day after this incident, Lopez met with Jones to com-
plain about Matteson’s actions. As Dean of Academic Affairs,
Jones supervises the LACC faculty and oversees certain stu-
dent matters and the policies and procedures that govern
LACC. Jones told Lopez to put his complaint against Matte-
son in writing. When Lopez delivered his written complaint
2
Though the text of Lopez’s speech is not in the record, Lopez’s appel-
late brief states that the speech quoted Romans 10:9 (“[t]hat if you confess
with your mouth, ‘Jesus is Lord,’ and believe in your heart that God raised
Him from the dead, you will be saved;”) and Matthew 22:37-38 (“Jesus
said to him, ‘You shall love the Lord your God with all your heart, with
all your soul, and with all your mind.’ This is the first and greatest com-
mandment.”).
20154 LOPEZ v. CANDAELE
to Jones, Matteson observed this interaction. Matteson subse-
quently threatened Lopez, stating that he would make sure
that Lopez was expelled from school.

On December 2, the day after this threat, Lopez turned in
another Speech 101 assignment. Lopez’s paper contained a
list of proposed topics for a persuasive speech, including one
on how to “exercise your freedom of speech right,” which
would include a discussion of how one should “[a]lways stand
up for what you believe in.” Matteson gave Lopez an “A” for
this assignment, but wrote the following below the “free
speech” proposed topic: “(Remember — you agree to Student
Code of Conduct as a student at LACC).”

By this time, Lopez had obtained legal representation. On
the same day that Lopez submitted his list of proposed topics,
Lopez’s lawyer sent Jones and Jamillah Moore, the LACC
President, a letter demanding that Lopez receive a fair grade
on his informative speech, that LACC discipline Matteson
and require him to make a public apology to Lopez, and that
LACC and its faculty provide written assurance that they
would respect Lopez and other students’ First Amendment
rights.

Jones responded by letter two days later. The letter stated
that Jones had met with Lopez twice and had asked him to put
his complaints in writing and submit written corroboration of
his version of the informative speech incident from other stu-
dents in the class. The letter also stated that Jones had started
a “progressive discipline process” with respect to Matteson,
but that both collective bargaining rules and LACC’s restric-
tions on discussing personnel matters prevented her from dis-
closing details about any discipline that Matteson might
receive. The letter made clear that “action is being taken, but
specific details may not be shared with Mr. Lopez or [his law-
yer].”

The same letter also reported that Jones had received state-
ments from two students who were “deeply offended” by
 LOPEZ v. CANDAELE 20155
Lopez’s informative speech. One student wrote that Lopez’s
speech “was not of the informative style that our assignment
called for, but rather a preachy, persuasive speech that was
completely inappropriate and deeply offensive.” The student
further stated that although she respected Lopez’s right to free
speech, “I also do not believe that our classroom is the proper
platform for him to spout his hateful propaganda.” The second
student wrote that “I don’t know what kind of actions can be
taken in this situation, but I expect that this student should
have to pay some price for preaching hate in the classroom.”
After quoting the two statements, however, the letter stated:

[r]egardless of the other students’ reactions to Mr.
Lopez’[s] speech, Mr. Matteson will still be disci-
plined. First amendment rights will not be violated
as is evidenced by the fact that even though many of
the students were offended by Mr. Lopez’[s] speech,
no action will be taken against any of them for
expressing their opinions.

The letter also stated that Lopez would receive a “fair grade”
for both his informative speech and for the entire class.

Lopez eventually received an “A” in the class, though he
alleged he never received a grade for his informative speech.
In a subsequent affidavit, Jones disavowed Matteson’s
actions, declaring that Matteson’s behavior was spontaneous
and not in accordance with any LACC or District “handbooks,
regulations[,] and codes.” The affidavit also confirmed that
“Matteson was disciplined for [his] conduct.” Lopez had no
subsequent interactions with Matteson, and the record con-
tains no other complaints or other allegations of enforcement
actions taken against Lopez due to his speech. Nor did the
District or LACC take any enforcement action against Lopez
under the sexual harassment policy.
20156 LOPEZ v. CANDAELE
C

Lopez ultimately filed suit against Matteson, Jones and
other District and college officials.3 Lopez brought four
causes of action against the Defendants under 42 U.S.C.
§ 1983. The first three causes of action alleged that Matte-
son’s conduct violated Lopez’s First Amendment and equal
protection rights. In his fourth cause of action, the only one
relevant here, Lopez claimed that the District’s sexual harass-
ment policy violated the First Amendment because it was
unconstitutionally overbroad and vague.4

Lopez moved for a preliminary injunction to enjoin the
Defendants from enforcing the sexual harassment policy. In
entertaining this motion, the district court first concluded that
Lopez had standing to bring a facial challenge to the policy
because it applied to Lopez by virtue of his enrollment at
LACC, the policy likely reached the speech in which Lopez
wanted to engage, and Lopez has censored himself for fear of
discipline under the policy.5 The district court then concluded
that the policy was unconstitutionally overbroad and could not
be narrowed, and granted Lopez’s motion to enjoin the Dis-
trict from enforcing the policy. While this appeal of the
court’s preliminary injunction was pending, the district court
granted the Defendants’ previously filed motion to dismiss the
remaining causes of action, with limited leave for Lopez to
amend.
3
In addition to Matteson and Jones, Lopez sued Moore, the president of
LACC, Cristy Passman, the LACC Compliance Officer, Gene Little,
Director of the District’s Office of Diversity Programs, and the District’s
Board of Trustees (Kelly G. Candaele, Mona Field, Georgia L. Mercer,
Nancy Pearlman, Angela J. Reddock, Miguel Santiago, and Sylvia Scott-
Hayes.) Except for Matteson, who is not a named defendant in this appeal,
we refer to the defendants by name or collectively as Defendants.
4
Matteson failed to respond to Lopez’s complaint, and as such the dis-
trict court clerk entered default; however, the district court delayed grant-
ing a default judgment against Matteson until after this appeal is resolved.
5
The district court therefore did not reach Lopez’s as-applied challenge.
 LOPEZ v. CANDAELE 20157
II

We review de novo the district court’s determination that
Lopez has standing. Am.-Arab Anti-Discrimination Comm. v.
Thornburgh, 970 F.2d 501, 506 (9th Cir. 1992). Lopez bears
the burden of establishing standing because he is the party
invoking federal jurisdiction. LSO, 205 F.3d at 1152. We
review the district court’s grant of a preliminary injunction for
abuse of discretion. Johnson v. Couturier, 572 F.3d 1067,
1078 (9th Cir. 2009). “This review is ‘limited and deferential’
and it does not extend to the underlying merits of the case.”
Id. (quoting Am. Trucking Ass’ns v. City of Los Angeles, 559
F.3d 1046, 1052 (9th Cir. 2009)).

A

[1] In order to invoke the jurisdiction of the federal courts,
a plaintiff must establish “the irreducible constitutional mini-
mum of standing,” consisting of three elements: injury in fact,
causation, and a likelihood that a favorable decision will
redress the plaintiff’s alleged injury. Lujan, 504 U.S. at
560-61; see Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d
1088, 1093 (9th Cir. 2003). The injury in fact must constitute
“an invasion of a legally protected interest which is (a) con-
crete and particularized, and (b) actual or imminent, not con-
jectural or hypothetical.” Lujan, 504 U.S. at 560 (internal
citations and quotations omitted). The plaintiff must prove
injury in fact “in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the
litigation.” Id. at 561. Therefore, at the preliminary injunction
stage, a plaintiff must make a “clear showing” of his injury in
fact. Winter v. Natural Resources Def. Council, Inc., 129 S.
Ct. 365, 376 (2008).

[2] Because “[c]onstitutional challenges based on the First
Amendment present unique standing considerations,” plain-
tiffs may establish an injury in fact without first suffering a
20158 LOPEZ v. CANDAELE
direct injury from the challenged restriction. Bayless, 320
F.3d at 1006. “In an effort to avoid the chilling effect of
sweeping restrictions, the Supreme Court has endorsed what
might be called a ‘hold your tongue and challenge now’
approach rather than requiring litigants to speak first and take
their chances with the consequences.” Id.; Getman, 328 F.3d
at 1094. In such pre-enforcement cases, the plaintiff may meet
constitutional standing requirements by “demonstrat[ing] a
realistic danger of sustaining a direct injury as a result of the
statute’s operation or enforcement.” Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979); see LSO, 205
F.3d at 1154. To show such a “realistic danger,” a plaintiff
must “allege[ ] an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed
by a statute, and . . . a credible threat of prosecution thereun-
der.” Babbitt, 442 U.S. at 298; see Bayless, 320 F.3d at 1006;
LSO, 205 F.3d at 1154-55.

[3] Despite this “relaxed standing analysis” for pre-
enforcement challenges, Canatella v. California, 304 F.3d
843, 853 n.11 (9th Cir. 2002), plaintiffs must still show an
actual or imminent injury to a legally protected interest. See
Lujan, 504 U.S. at 560. Even when plaintiffs bring an over-
breadth challenge to a speech restriction, i.e., when plaintiffs
challenge the constitutionality of a restriction on the ground
that it may unconstitutionally chill the First Amendment
rights of parties not before the court, they must still satisfy
“the rigid constitutional requirement that plaintiffs must dem-
onstrate an injury in fact to invoke a federal court’s jurisdic-
tion.” Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 999
(9th Cir. 2004) (quoting 4805 Convoy, Inc. v. City of San
Diego, 183 F.3d 1108, 1112 (9th Cir. 1999)); see also Sec’y
of State v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984).
The touchstone for determining injury in fact is whether the
plaintiff has suffered an injury or threat of injury that is credi-
ble, not “imaginary or speculative.” Babbitt, 442 U.S. at 298
(quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
 LOPEZ v. CANDAELE 20159
We look at a number of factors to determine whether plain-
tiffs who bring suit prior to violating a statute, so-called “pre-
enforcement plaintiffs,” have failed to show that they face a
credible threat of adverse state action sufficient to establish
standing. As discussed in more detail below, in this context
we have conducted three related inquiries. First, we have con-
sidered whether pre-enforcement plaintiffs have failed to
show a reasonable likelihood that the government will enforce
the challenged law against them. Second, we have considered
whether the plaintiffs have failed to establish, with some
degree of concrete detail, that they intend to violate the chal-
lenged law. We have also considered a third factor, whether
the challenged law is inapplicable to the plaintiffs, either by
its terms or as interpreted by the government. Such inapplica-
bility weighs against both the plaintiffs’ claims that they
intend to violate the law, and also their claims that the govern-
ment intends to enforce the law against them.

B

Beginning with the first factor, we have considered a gov-
ernment’s preliminary efforts to enforce a speech restriction
or its past enforcement of a restriction to be strong evidence
(although not dispositive, LSO, 205 F.3d at 1155) that pre-
enforcement plaintiffs face a credible threat of adverse state
action. For example, a threat of government prosecution is
credible if the government has indicted or arrested the plain-
tiffs, Younger, 401 U.S. at 41-42, if “prosecuting authorities
have communicated a specific warning or threat to initiate
proceedings” under the challenged speech restriction, or if
there is a “history of past prosecution or enforcement under
the challenged statute.” Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc). See,
e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (plaintiff
established injury in fact where the government twice warned
him to stop distributing handbills and threatened him with
prosecution under a Georgia statute if he continued to distrib-
ute the handbills); Culinary Workers Union v. Del Papa, 200
20160 LOPEZ v. CANDAELE
F.3d 614, 616, 618 (9th Cir. 1999) (per curiam) (plaintiff had
established injury in fact under a Nevada statute when the
attorney general wrote a “precise and exact” letter to the
union which quoted the statute in full and threatened to refer
the prosecution to “local criminal authorities”).

The threatened state action need not necessarily be a prose-
cution. See, e.g., Meese v. Keene, 481 U.S. 465, 472-73
(1987) (holding that the plaintiff established standing by prov-
ing harms flowing from the government’s designation of three
films as “political propaganda”); Canatella, 304 F.3d at
852-53 (holding that the plaintiff had standing to challenge
state bar statutes and professional rules where he had previ-
ously been subject to state bar disciplinary proceedings and
could be subject to them in the future). Moreover, the plain-
tiffs themselves need not be the direct target of government
enforcement. A history of past enforcement against parties
similarly situated to the plaintiffs cuts in favor of a conclusion
that a threat is specific and credible. See Adult Video Ass’n v.
Barr, 960 F.2d 781, 785 (9th Cir. 1992), vacated sub nom.
Reno v. Adult Video Ass’n, 509 U.S. 917 (1993), reinstated in
relevant part, 41 F.3d 503 (9th Cir. 1994).

[4] But “general threat[s] by officials to enforce those laws
which they are charged to administer” do not create the neces-
sary injury in fact. United Pub. Workers of Am. v. Mitchell,
330 U.S. 75, 88 (1947); see Rincon Band of Mission Indians
v. San Diego Cnty., 495 F.2d 1, 4 (9th Cir. 1974) (concluding
that the sheriff’s statement that “all of the laws of San Diego,
State, Federal and County, will be enforced within our juris-
diction” was insufficient to create a justiciable case (citing,
among other cases, Poe v. Ullman, 367 U.S. 497, 501
(1961))). Thus, where multiple plaintiffs challenged a Califor-
nia law that criminalized teaching communism, the Supreme
Court concluded that three of the plaintiffs, who had not
alleged that “they have ever been threatened with prosecution,
that a prosecution is likely, or even that a prosecution is
remotely possible,” but merely that they felt “inhibited” in
 LOPEZ v. CANDAELE 20161
advocating political ideas or in teaching about communism,
did not have standing. Younger, 401 U.S. at 42. Mere
“[a]llegations of a subjective ‘chill’ are not an adequate sub-
stitute for a claim of specific present objective harm or a
threat of specific future harm.” Laird v. Tatum, 408 U.S. 1,
13-14 (1972).

Turning to the second factor, we have concluded that pre-
enforcement plaintiffs who failed to allege a concrete intent
to violate the challenged law could not establish a credible
threat of enforcement. Because “the Constitution requires
something more than a hypothetical intent to violate the law,”
plaintiffs must “articulate[ ] a ‘concrete plan’ to violate the
law in question” by giving details about their future speech
such as “when, to whom, where, or under what circum-
stances.” Thomas, 220 F.3d at 1139. The plaintiffs’ allega-
tions must be specific enough so that a court need not
“speculate as to the kinds of political activity the [plaintiffs]
desire to engage in or as to the contents of their proposed pub-
lic statements or the circumstances of their publication.”
Mitchell, 330 U.S. at 90. For example, a plaintiff challenging
the licensing provisions of a state regulatory regime failed the
injury in fact requirement because the plaintiff “ha[d] never
indicated that it intends to pursue another license,” and there-
fore could not “assert that it will ever again be subject to the
licensing provisions.” 4805 Convoy, 183 F.3d at 1112-13; see
also, e.g., Thornburgh, 970 F.2d at 510 (organization does not
have standing when the only evidence that it would be subject
to a law penalizing membership in an alleged terrorist group
was that its members received two publications which
espoused the terrorist group’s views). By contrast, plaintiffs
may carry their burden of establishing injury in fact when
they provide adequate details about their intended speech.
See, e.g., ACLU v. Heller, 378 F.3d 979, 984 (9th Cir. 2004)
(holding that a group had standing when an individual mem-
ber alleged he desired to produce and distribute flyers regard-
ing a specific ballot initiative); Getman, 328 F.3d at 1093
(holding that a group had standing when the group showed,
20162 LOPEZ v. CANDAELE
among other things, that it had planned to spend over $1000
to defeat a specific California proposition in the November
2000 election). Without these kinds of details, a court is left
with mere “ ‘some day’ intentions,” which “do not support a
finding of the ‘actual or imminent’ injury that our cases
require.” Thomas, 220 F.3d at 1140 (quoting San Diego Cnty.
Gun Rights Comm. v. Reno, 98 F.3d 1121, 1127 (9th Cir.
1996)).

[5] Finally, we have indicated that plaintiffs’ claims of
future harm lack credibility when the challenged speech
restriction by its terms is not applicable to the plaintiffs, or the
enforcing authority has disavowed the applicability of the
challenged law to the plaintiffs. In the First Amendment con-
text, “a fear of prosecution will only inure if the plaintiff’s
intended speech arguably falls within the statute’s reach.”
Getman, 328 F.3d at 1095 (citing Virginia v. Am. Booksellers
Ass’n, 484 U.S. 383, 392 (1988)). Thus, in Leonard v. Clark,
we held that individual firemen did not have standing to chal-
lenge a portion of their union’s collective bargaining agree-
ment because the provision at issue “by its plain language
applie[d] only to the Union and not to its individual mem-
bers.” 12 F.3d 885, 888-89 (9th Cir. 1994); see also Getman,
328 F.3d at 1095 (indicating that a plaintiff has not estab-
lished an injury in fact where the statute “clearly fails to cover
[the plaintiff’s] conduct” (quoting Majors v. Abell, 317 F.3d
719, 721 (7th Cir. 2003))).

Likewise, we have held that plaintiffs did not demonstrate
the necessary injury in fact where the enforcing authority
expressly interpreted the challenged law as not applying to the
plaintiffs’ activities. Thus, a group of school teachers did not
have standing to challenge an Oregon textbook selection stat-
ute when both the Oregon Attorney General and the school
district’s lawyer “disavowed any interpretation of [the statute]
that would make it applicable in any way to teachers.” John-
son v. Stuart, 702 F.2d 193, 195 (9th Cir. 1983); cf. LSO, 205
F.3d at 1155 (collecting cases where the government failed to
 LOPEZ v. CANDAELE 20163
affirmatively disavow an intent to enforce a challenged stat-
ute). Of course, the government’s disavowal must be more
than a mere litigation position. See Thornburgh, 970 F.2d at
508 (holding that aliens had standing to challenge speech
restriction statutes, even though the government dropped
charges based on those statutes four days before the district
court hearing, because, among other things, the government
could easily reinstate those charges and was bringing similar
charges against other aliens).

III

We apply these principles to the facts of this case to deter-
mine whether Lopez has carried his burden of making a clear
showing of injury in fact. See Winter, 129 S. Ct. at 376;
Lujan, 504 U.S. at 560. Lopez claims he suffered such an
injury because he faced a specific, credible threat of adverse
state action under the District’s sexual harassment policy.

A

Lopez identifies three actions on the part of LACC employ-
ees that, he claims, constitute a credible threat. According to
Lopez, Matteson threatened to enforce the sexual harassment
policy against him first on November 24, when Matteson
interrupted Lopez’s informative speech and told the class that
they could leave if they were “offended,” and second on
December 2, when Matteson wrote on Lopez’s assignment
that Lopez had agreed to the “Student Code of Conduct” as
a student at LACC. Third, Lopez claims that Jones’s letter
constituted a threat to enforce the policy because it informed
Lopez that his speech had offended other students. We con-
sider each incident in turn.

[6] In the November 24 incident, Matteson aggressively
abused Lopez for his statements regarding marriage, pre-
vented Lopez from speaking, asked whether other students
were offended, and warned Lopez against proselytizing in
20164 LOPEZ v. CANDAELE
school. However, Matteson did not threaten to enforce the
sexual harassment policy against Lopez or even suggest that
Lopez was violating the policy. Therefore the November 24
incident, while raising serious concerns, does not help Lopez
carry his burden of clearly showing he suffered an injury in
fact from the sexual harassment policy. Lopez argues that
because Matteson told students they could leave if they were
“offended,” and Section 15003(A) defines “sexual harass-
ment” as including conduct that has the purpose or effect of
creating an “offensive work or educational environment,”
Matteson was implicitly invoking the District’s sexual harass-
ment policy. We conclude that any link between Matteson’s
use of the word “offended” and the sexual harassment poli-
cy’s use of the word “offensive” in this context is too attenu-
ated and remote to rise to the level of “a threat of specific
future harm” required to show an injury in fact arising from
the policy. Cf. Laird, 408 U.S. at 14 (requiring such a threat
in order to avoid advisory opinions); Del Papa, 200 F.3d at
616, 618 (holding that a “precise and exact” threat of prosecu-
tion was more than adequate to establish injury in fact).

[7] The December 2 incident involved a different assign-
ment Lopez had written for Speech 101. It is plausible to read
Matteson’s comment on the paper, namely that Lopez had
agreed to abide by the Student Code of Conduct,6 as an
implicit threat that Lopez should take care not to raise certain
topics (such as those relating to marriage as being between a
man and a woman, which had elicited Matteson’s ire previ-
ously), and that such topics could violate the school’s poli-
cies. Again, however, such an implied threat does not meet
the standard necessary to show injury in fact. This assignment
did not mention Lopez’s religious beliefs or discuss the nature
6
Although there is no document entitled “Student Code of Conduct” in
the record, we assume for purposes of this analysis that the comment
refers to the “Rules for Student Conduct” section of the LACC student
handbook, which also contains Section 15001 of the sexual harassment
policy.
 LOPEZ v. CANDAELE 20165
of marriage, and on its face, Matteson’s comment does not
indicate that Lopez’s speech on marriage or religion would
constitute sexual harassment or otherwise violate the sexual
harassment policy. Nor does Matteson’s comment constitute
a threat to initiate proceedings if Lopez made such remarks on
marriage or religion. Rather, in the context in which this
remark appeared, Matteson’s comment is, at most, a “general
threat” to enforce the Student Code of Conduct, rather than a
“direct threat of punishment.” Mitchell, 330 U.S. at 88. Such
general threats are insufficient to establish an injury in fact.

[8] Finally, Lopez argues that Jones’s December 4 letter is
a threat to enforce the sexual harassment policy by taking
action against him. Lopez points to the letter’s statement that
two students were offended by Lopez’s speech, and one stu-
dent wrote that the speech was “hateful propaganda.” Read in
context, however, Jones’s letter does not constitute a threat of
enforcement action. The letter makes clear that Matteson, not
Lopez, is the target of the LACC’s disciplinary actions, and
states that LACC will not take action against any students,
impliedly including Lopez, for exercise of their First Amend-
ment rights. Moreover, while Jones makes the rejoinder to
Lopez’s attorney that two other students were offended by
Lopez’s speech, the students she quotes do not complain
about statements of a sexual nature or suggest they regarded
Lopez’s speech as constituting sexual harassment; rather, they
complained that Lopez’s informative speech was “hateful” or
“preached hate.” We therefore agree with the district court’s
later conclusion that “the content of [Jones’s] letter cannot
reasonably be characterized as threatening future punishment
on the basis of such [student] complaints.”

[9] Even when we view Jones’s letter and the two Speech
101 incidents collectively, they do not constitute a credible
threat to discipline Lopez under the sexual harassment policy.
No LACC official or student invoked or even mentioned the
policy, nor did anyone suggest that Lopez’s November 24
speech constituted sexual harassment. Indeed, even the
20166 LOPEZ v. CANDAELE
demand letter Lopez’s attorney sent to LACC did not refer-
ence that policy. While Matteson and the students quoted in
Jones’s letter apparently were offended or angered by Lopez’s
November 24 speech in class, there is no indication that they,
or anyone else, deemed it to be sexual harassment.

B

Other factors likewise indicate that Lopez’s claims of
threatened enforcement are not sufficiently concrete to meet
even the minimum injury in fact threshold. As noted above,
we consider both Lopez’s stated intent to violate the policy
and the likelihood that the District or LACC will enforce the
policy against Lopez.

[10] Here Lopez has not adequately proven his intent to
violate the policy because Lopez has not shown that the sex-
ual harassment policy even arguably applies to his past or
intended future speech. See Getman, 328 F.3d at 1095 (plain-
tiff must show that his “intended speech arguably falls within
the statute’s reach”). As we previously explained, the Dis-
trict’s policy (per Sections 15001 and 15003(A)) precludes
students from engaging in sexual harassment, which, in its
most wide-reaching formulation, includes “verbal, visual, or
physical conduct of a sexual nature” that has the purpose or
effect of creating a “hostile or offensive work or educational
environment.” Lopez’s November 24 speech included quotes
from two Bible passages relating to salvation and the love of
God, and a dictionary definition of marriage as “between a
man and a woman.” Lopez has given us few details about his
intended future speech: he alleges only that in the future, he
desires to discuss “his Christian views on politics, morality,
social issues, religion, and the like,” and that he wishes to
“share[ ] his beliefs about Christianity with others,” which
means “discuss[ing] his faith and how it applies to guide his
views on political, social, and cultural issues and events.”
Comparing Lopez’s past and proposed future speech to the
plain language of the District’s sexual harassment policy, we
 LOPEZ v. CANDAELE 20167
do not see, nor does Lopez explain, how the policy applies to
him, given that his statements and proposed topics do not, on
their face, constitute “verbal . . . conduct of a sexual nature.”
While the District Office of Diversity Programs and LACC
Compliance Office websites suggest broader definitions of
sexual harassment than contained in Section 15003(A),
Lopez’s speech on topics of religious concern does not, on its
face, meet even those broader definitions, which focus on
conduct or expression specifically related to sex (e.g., classi-
fying as sexual harassment the “[d]isplay of sexually sugges-
tive objects, pictures, cartoons, posters, [or] screen savers,” or
“[d]isparaging sexual remarks about [one’s] gender”). Lopez
does not argue otherwise. In short, Lopez has not shown how
his past or intended speech would violate the challenged pol-
icy.

[11] Even if we assume (though Lopez does not argue) that
Lopez intends to express religious opposition to homosexual-
ity or same sex marriages, and even if we also assume (which
again, Lopez does not argue) that college officials, teachers or
students could adopt a strained construction of the sexual
harassment policy that would make it applicable to religious
speech opposing homosexuality or gay marriage, Lopez does
not claim that anyone has done so or may do so in the future.
In the absence of any argument by Lopez urging this point,
we decline to give the policy such an interpretation on our
own accord. Moreover, nothing in the record suggests that the
District or LACC has adopted an expansive reading of the
policy. Rather, Jones’s uncontroverted statement that the Dis-
trict or LACC have never charged any teacher, student, or
employee with sexual harassment under the policy points in
the opposite direction. In the absence of any showing that the
sexual harassment policy even arguably applies or may apply
to Lopez’s past or intended future speech, Lopez cannot show
a concrete intent to violate the policy, and therefore cannot
show a credible threat that the Defendants will enforce the
policy against him.
20168 LOPEZ v. CANDAELE
For this reason, Lopez’s reliance on Santa Monica Food
Not Bombs v. City of Santa Monica (Food Not Bombs), 450
F.3d 1022 (9th Cir. 2006) and Bayless, 320 F.3d 1002, is mis-
placed. In those cases, we held that an organization can estab-
lish injury in fact sufficient for pre-enforcement standing
merely by showing that it altered its expressive activities to
comply with the statutes at issue and alleging its apprehension
that the relevant statutes would be enforced against it. See
Food Not Bombs, 450 F.3d at 1034; Bayless, 320 F.3d at
1006. Lopez argues that he is similarly situated, because he
has self-censored his speech on religious topics in order to
avoid violating the sexual harassment policy. However, in
Bayless and Food Not Bombs, the organizations proved they
had a specific, concrete intent to engage in activities that were
clearly barred by the challenged law. See Food Not Bombs,
450 F.3d at 1034 (holding that a plaintiff that organized
marches and demonstrations had standing to challenge a Santa
Monica ordinance that required it to obtain a permit before
engaging in marches or demonstrations); Bayless, 320 F.3d at
1006 (holding that a right-to-life political action committee,
whose primary purpose was to present political advertising,
had standing to challenge a state election statute that placed
limitations on political advertising within ten days before an
election). By contrast, Lopez fails to allege, let alone offer
concrete details such as those supplied in Bayless or Food Not
Bombs, regarding his intent to engage in conduct expressly
forbidden by the sexual harassment policy; he “cannot say
when, to whom, where, or under what circumstances” he will
actually give a speech that would violate the sexual harass-
ment policy. Thomas, 220 F.3d at 1139.

We reach the same conclusion when we inquire whether
the District or LACC will likely enforce the policy against
Lopez. As noted above, the inapplicability of the plain lan-
guage of the sexual harassment policy to Lopez’s speech, and
the absence of any official interpretation of the policy as
applying to Lopez’s speech, cut against the existence of a
credible threat of enforcement. Moreover, Jones’s letter indi-
 LOPEZ v. CANDAELE 20169
cated that LACC did not intend to take any action against
Lopez. As noted above, the letter stated that Jones intended to
address Lopez’s complaints, discipline Matteson, and ensure
that Lopez received a fair grade in the class. Further, the letter
stated that although several students were offended by
Lopez’s speech, “First amendment rights will not be violat-
ed,” and no action will be taken against any of the students,
implicitly including Lopez. As Jones is the administration
official with responsibility for overseeing college policies and
procedures generally, her statement that no action will be
taken against students for expressing their opinions is entitled
to significant weight, and vitiates Lopez’s claim that he faces
a credible threat of enforcement. Cf. LSO, 205 F.3d at 1155
(concluding that “failure to disavow ‘is an attitudinal factor
the net effect of which would seem to impart some substance
to the fears of plaintiffs’ ” (brackets omitted) (quoting Thorn-
burgh, 970 F.2d at 508)). Nor is this a situation like Thorn-
burgh, in which the government dropped charges “not
because [the charges] were considered inapplicable, but for
tactical reasons,” 970 F.2d at 508, because here LACC had
not taken any steps to enforce the sexual harassment policy
against Lopez, either before or after Lopez’s threat to sue the
school.

Although Lopez alleges that his speech was chilled by the
existence of the sexual harassment policy, self-censorship
alone is insufficient to show injury. See, e.g., Laird, 408 U.S.
at 13-14 (“Allegations of a subjective ‘chill’ are not an ade-
quate substitute for a claim of specific present objective harm
or a threat of specific future harm . . . .”); Getman, 328 F.3d
at 1095 (“We do not mean to suggest that any plaintiff may
challenge the constitutionality of a statute on First Amend-
ment grounds by nakedly asserting that his or her speech was
chilled by the statute. The self-censorship door to standing
does not open for every plaintiff.”). Nor does Lopez have
standing merely because, as the district court concluded, he
may have “more than a general interest shared with the stu-
dent body at large” in challenging the policy because he is a
20170 LOPEZ v. CANDAELE
devout Christian. Leaving aside the question whether the sex-
ual harassment policy has special applicability to Christians,
the district court’s conclusion is misguided: our inquiry into
injury-in-fact does not turn on the strength of plaintiffs’ con-
cerns about a law, but rather on the credibility of the threat
that the challenged law will be enforced against them. See
Babbitt, 442 U.S. at 298-99.

[12] In sum, Lopez has not proposed an interpretation of
the policy that would arguably apply to his intended speech
and has not given any details about what he intends to say.
Therefore, he has failed to prove his intent to violate the pol-
icy. Moreover, Lopez has not shown that the District or
LACC has enforced the sexual harassment policy against him,
interprets the sexual harassment policy as applying to his
speech, or is likely to enforce the policy against him in the
future. Under these circumstances, we must conclude that
Lopez fails to meet the standard required of a pre-
enforcement plaintiff to prove injury in fact, because he has
not met the low threshold of clearly showing that he faces a
specific, credible threat of adverse government action based
on a violation of the sexual harassment policy.

C

[13] Lopez also argues that the overbreadth doctrine
allows him to assert the rights of his fellow students who are
not before the court. However, Lopez properly recognized
that he may only assert the rights of others “[s]o long as [he]
satisfies the injury in fact requirement.” Plaintiffs who have
suffered no injury themselves cannot invoke federal jurisdic-
tion by pointing to an injury incurred only by third parties.
See Munson, 467 U.S. at 958 (noting that Munson could not
assert the rights of third parties unless Munson itself had suf-
fered an injury in fact). Nor does the recent Third Circuit
decision in McCauley v. University of Virgin Islands, 618
F.3d 232, 238-39 (3rd Cir. 2010), alter this conclusion.
McCauley held that a student disciplined for violating a provi-
 LOPEZ v. CANDAELE 20171
sion in the student code of conduct had standing to bring a
First Amendment challenge not only to that provision, but
also to other provisions that had not caused him any injury,
on the ground that they had the potential to chill the speech
of other students. Id. at 238. Although the Supreme Court has
held that plaintiffs may raise the First Amendment rights of
third parties in certain narrow circumstances (namely, where
plaintiffs have suffered an injury, but not an injury to their
First Amendment rights, see, e.g., Virginia v. American Book-
sellers Ass’n, 484 U.S. 383, 392 (1988)), the Court has never
deviated from its rule that “[t]o bring a cause of action in fed-
eral court requires that plaintiffs establish at an irreducible
minimum an injury in fact; that is, there must be some threat-
ened or actual injury resulting from the putatively illegal
action.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 499
(1975)) (internal quotations omitted). See, e.g., Munson., 467
U.S. at 955 (holding that even when a plaintiff has satisfied
the case or controversy requirement of Article III because he
“suffered both threatened and actual injury as a result of the
statute,” a plaintiff generally “cannot rest his claim to relief
on the legal rights or interests of third parties”; however, in
the First Amendment context “where the claim is that a statute
is overly broad in violation of the First Amendment, the Court
has allowed a party to assert the rights of another . . . .”); see
also Village of Schaumburg v. Citizens for a Better Environ-
ment, 444 U.S. 620, 634 (1980) (“Given a case or contro-
versy, a litigant whose own activities are unprotected may
nevertheless challenge a statute by showing that it substan-
tially abridges the First Amendment rights of other parties not
before the court.”). To the extent McCauley can be interpreted
as holding that a plaintiff who has not demonstrated any
injury in fact has standing to bring a First Amendment chal-
lenge on behalf of third parties, it is inconsistent with
Supreme Court precedent, and we decline to follow it.
Because Lopez fails to establish the necessary injury in fact,
he cannot raise the claims of third parties as part of an over-
breadth challenge.
20172 LOPEZ v. CANDAELE
IV

Formal and informal enforcement of policies that regulate
speech on college campuses raises issues of profound con-
cern. As we have noted in Rodriguez v. Maricopa County
Community College District,

If colleges are forced to act as the hall monitors of
academia, subject to constant threats of litigation
both from [those] who wish to speak and listeners
who wish to have them silenced, “many school dis-
tricts would undoubtedly prefer to ‘steer far’ from
any controversial [speaker] and instead substitute
‘safe’ ones in order to reduce the possibility of civil
liability and the expensive and time-consuming bur-
dens of a lawsuit.”

605 F.3d 703, 709 (9th Cir. 2010) (brackets omitted) (quoting
Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022,
1030 (9th Cir. 1998)). Such policies, well intentioned though
they may be, carry significant risks of suppressing speech.
“Because some people take umbrage at a great many ideas,
very soon no one would be able to say much of anything at
all,” id. at 711, an outcome that would be anathema for uni-
versities, our nation’s “marketplace of ideas.” Healy v. James,
408 U.S. 169, 180 (1972). Rather, the First Amendment pro-
tects a speaker’s “freedom to express himself on . . . issues in
vigorous, argumentative, unmeasured, and even distinctly
unpleasant terms.” Rodriguez, 605 F.3d at 708-09 (quoting
Adamian v. Jacobsen, 523 F.2d 929, 934 (9th Cir. 1975)); see
also Cohen v. California, 403 U.S. 15, 24-25 (1971) (“To
many, the immediate consequence of this freedom [of speech]
may often appear to be only verbal tumult, discord, and even
offensive utterance. These are, however, within established
limits, in truth necessary side effects of the broader enduring
values which the process of open debate permits us to
achieve.”).
 LOPEZ v. CANDAELE 20173
[14] Despite the serious concerns raised by policies that
regulate speech on college campuses, we remain bound by the
strictures of our jurisdiction, and must decline to hear cases
where there is no genuine case or controversy. Under the
relaxed standard applicable to First Amendment cases,
Lopez’s arguments come to the very edge of showing injury
in fact. But Lopez has not made it over the threshold, and
“[w]e will not manufacture arguments for [a party].” Green-
wood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Taking the
record and Lopez’s arguments as we find them, we conclude
that Lopez failed to make a clear showing of a specific and
concrete threat that the sexual harassment policy would be
enforced against him. While Lopez alleged a bruising encoun-
ter with Matteson, Lopez’s suit against Matteson is not before
us today, and neither Matteson nor any other Defendant ever
invoked the District’s sexual harassment policy against
Lopez. Lopez consequently does not have standing to chal-
lenge the District’s sexual harassment policy. Therefore, the
order granting the preliminary injunction is REVERSED, the
preliminary injunction is VACATED, and we REMAND for
further proceedings consistent with this opinion.