PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PHILIP BENHAM, as an individual
and as a representative of
Operation Save America, Inc.;
SHERYL CHANDLER, as an individual
and as a representative of
Operation Save America, Inc.;
OPERATION SAVE AMERICA,
INCORPORATED, a non-profit
corporation,
Plaintiffs-Appellants, No. 10-1132
v.
CITY OF CHARLOTTE, NORTH
CAROLINA, a political subdivision
of the State of North Carolina;
EMILY WESTBROOK, in her
individual capacity; KEITH PARKER,
in his individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:07-cv-00395-RJC-DCK)
Argued: December 8, 2010
Decided: February 15, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
2 BENHAM v. CITY OF CHARLOTTE
Vacated and remanded by published opinion. Judge King
wrote the opinion, in which Judge Motz and Judge Gregory
joined.
COUNSEL
Frederick Herbert Nelson, AMERICAN LIBERTIES INSTI-
TUTE, Orlando, Florida, for Appellants. Robert Erwin Hage-
mann, CITY ATTORNEY’S OFFICE, Charlotte, North
Carolina, for Appellees.
OPINION
KING, Circuit Judge:
In September 2007, Philip Benham, Sheryl Chandler, and
Operation Save America (collectively, the "Plaintiffs"), initi-
ated this 42 U.S.C. § 1983 action in the Western District of
North Carolina, seeking injunctive relief and damages from
the City of Charlotte and two of its officials, Keith Parker and
Emily Westbrook (collectively, the "City"). The Plaintiffs
alleged in their complaint that two Charlotte ordinances con-
travene, inter alia, the Free Speech Clause of the First Amend-
ment and the Equal Protection Clause of the Fourteenth
Amendment. Following discovery, the City moved for sum-
mary judgment on all aspects of the complaint and, on Janu-
ary 8, 2010, the district court granted the motion. See Benham
v. City of Charlotte, 682 F. Supp. 2d 549 (W.D.N.C. 2010)
(the "Opinion"). The Plaintiffs have appealed the court’s sum-
mary judgment ruling. As explained below, because the Plain-
tiffs are unable to sustain their burden of demonstrating that
they suffered a cognizable injury, we vacate the judgment and
remand for dismissal for lack of jurisdiction.
BENHAM v. CITY OF CHARLOTTE 3
I.
A.
In January 2007, the Plaintiffs sought to obtain a permit to
conduct an event at Independence Square Plaza in downtown
Charlotte to speak about the Supreme Court’s Roe v. Wade
decision. Those events provide the background for these pro-
ceedings, and we begin with an overview of the bifurcated
legal framework that governs public gatherings in Charlotte.
One ordinance applies to "public assembl[ies]," see Charlotte
City Code §§ 19-311 to -313 (the "Public Assembly Ordi-
nance"), and a separate ordinance applies to "picket[s]," see
id. §§ 19-301 to -303 (the "Picketing Ordinance"). The Public
Assembly Ordinance defines a "public assembly" as
(1) [a] festival or demonstration which is reason-
ably anticipated to obstruct the normal flow of traffic
upon any public street and that is collected together
in one place; and
(2) [a] festival on the Old City Hall lawn, the
Charlotte-Mecklenburg Government Center Plaza, or
in Marshall Park, Polk Park, Independence Square
Plaza, Arequipa Park or any other city-controlled
park.
Id. § 19-311. As used in the Public Assembly Ordinance, a
"festival" is "a concert, fair, exhibit, promotion, community
event, block party, or similar event." Id. A "demonstration" is
"a public display of sentiment for or against a person or a
cause, including protesting." Id.
A group seeking to conduct a "public assembly" — includ-
ing a demonstration anticipated to obstruct street traffic —
must apply for and obtain a permit before the event takes
place. Charlotte City Code § 19-312(a). The Public Assembly
Ordinance spells out several reasons for which a permit may
4 BENHAM v. CITY OF CHARLOTTE
be denied. See id. § 19-312(c). If a permit official denies an
application, the permit applicant may appeal, and an appeals
official is obliged to conduct a hearing. Id. § 19-312(f). If the
denial of the permit application is upheld on appeal, the appli-
cant is entitled to appeal to the Superior Court of Mecklen-
burg County. Id.
Pursuant to the Picketing Ordinance, a "picket" is defined
as
a public display or demonstration of sentiment for or
against a person or cause, including protesting which
may include the distribution of leaflets or handbills,
the display of signs and any oral communication or
speech, which may involve an effort to persuade or
influence, including all expressive and symbolic
conduct, whether active or passive.
Charlotte City Code § 19-301. A group seeking to conduct a
"picket" may hold the event by right, without the prior issu-
ance of a permit. Id. § 19-303(a). By-right picketing ordinar-
ily "may be conducted on public sidewalks, . . . Independence
Square Plaza, [or] any other city-controlled park, . . . and shall
not be conducted on the portion of the public roadway used
primarily for vehicular traffic." Id. Picketing may not, how-
ever, be conducted in certain parks in Charlotte, including
Independence Square Plaza, "during a festival that has been
permitted at that particular property or when that property has
been otherwise reserved for private use." Id. § 19-303(b)(1).
The foregoing legal framework operates in practice as fol-
lows. First, an event must be characterized as a "festival" or
a "demonstration." If the event is a festival, the organizer
must obtain a public assembly permit before holding the
event. If the event is a demonstration, it may proceed without
a prior permit unless either (1) the space has been reserved
under § 19-303(b)(1), or (2) the event is "reasonably antici-
pated to obstruct the normal flow of traffic upon any public
BENHAM v. CITY OF CHARLOTTE 5
street" under § 19-311. When the event would so interfere
with traffic, the event organizers must apply for and obtain a
permit beforehand. The bottom line, then, is that a "demon-
stration" is regulated as a "public assembly" — for which the
prior issuance of a permit is required — when it will interfere
with traffic, but a demonstration is treated as a "picket" if it
will not interfere with traffic.
B.
The Plaintiffs submitted their application for a public
assembly permit on December 14, 2006, identifying the event
as the "Roe vs Wade Memorial" and stating that it was to be
held on Monday, January 22, 2007, between 11:30 a.m. and
1:00 p.m., at "Trade [Street] & Tryon [Street] — in front of
bronze disc sculpture." Dist. Ct. ECF No. 26-1.1 In its Opin-
ion, the district court observed that this area is known as Inde-
pendence Square Plaza, and that it is located in the "very
center of uptown Charlotte." Benham, 682 F. Supp. 2d at 552
n.1. The permit application stated that the Roe vs Wade
Memorial would not involve any street closures, and advised
that the event would not involve the sale of alcoholic bever-
ages or food, the provision of portable toilets, or the charging
of admission or vendor fees. Dist. Ct. ECF No. 26-1. The per-
mit application described the event as "evangelical, gospel
proclamation, praise + worship band, local Christian pastors
speaking, post-abortive mothers give testimony, call to repen-
tance," with a temporary stage for musical entertainment. Id.
The application estimated that there would be an attendance
of 100, based on a reference to "previous years’ attendance,"
id., even though plaintiff Philip Benham and the other event
organizers had not previously applied for a public assembly
permit in Charlotte. Benham, 682 F. Supp. 2d at 552 n.2.
1
Citations herein to "Dist. Ct. ECF No. __" refer to the docket entry
numbers for documents filed in the district court record that are not
included in the Joint Appendix.
6 BENHAM v. CITY OF CHARLOTTE
On December 20, 2006, permit official (and defendant)
Emily Westbrook informed the Plaintiffs that she could not
"accept and process [their] application for a Public Assembly
Permit" for the Roe vs Wade Memorial. Dist. Ct. ECF No. 26-
2. She explained that, "[w]hile the Public Assembly Ordi-
nance provides for permitting of ‘festivals’ at Independence
Square Plaza, it does not contemplate permitting ‘demonstra-
tions’ at that location. Instead ‘demonstrations’ at Indepen-
dence Square Plaza are covered by the City’s Picketing
Ordinance." Id. Westbrook’s letter explained further that,
because the event would be a "demonstration," would be held
at a park, and was not anticipated to interfere with traffic, it
could be held by right under the Picketing Ordinance, which
"does not require a permit." Id.2 The Plaintiffs promptly
appealed Westbrook’s decision to appeals official (and defen-
dant) Keith Parker, who conducted a hearing on January 3,
2007. Parker upheld Westbrook’s decision, ruling that she had
properly deemed the proposed event a "demonstration" that
"may be held from 11:30 a.m. to 1:00 p.m. on Monday[,] Feb-
ruary 22[,] at Independence Square Plaza without the need for
a permit other than an amplified noise permit pursuant to
Charlotte City Code Section 15-64(a)(6) should the organizers
wish to use amplification devices." Dist. Ct. ECF No. 26-3.
The Plaintiffs did not seek review of Parker’s appellate ruling,
and held their event as scheduled on January 22, 2007. There
were no arrests made in connection with the event, although
the authorities issued two noise warnings.
C.
Seven months later, on September 20, 2007, this civil
2
In prior correspondence of December 18, 2007, Westbrook advised
plaintiff Sheryl Chandler that she was "[e]specially" convinced the Roe vs
Wade Memorial was a demonstration because "you are not requesting
street closures. This being the case, you do not have to go through the
whole process of application review and approval." Dist. Ct. ECF No. 26-
3.
BENHAM v. CITY OF CHARLOTTE 7
action was filed in the Western District of North Carolina,
alleging that the City had violated the Plaintiffs’ free speech
and free exercise rights, and had impinged their due process
and equal protection guarantees, as secured by the Constitu-
tions of North Carolina and the United States. The Plaintiffs
no longer pursue separate free exercise or due process claims,
or separate state claims; the three claims presently pursued are
that (1) the Public Assembly Ordinance is unconstitutionally
vague and overbroad on its face, (2) the denial of the Plain-
tiffs application for a public assembly permit violated their
free speech and equal protection rights, and (3) the Public
Assembly Ordinance, as it interacts with the Picketing Ordi-
nance, unconstitutionally burdens expressive assembly by
favoring commercial and recreational assembly, thus contra-
vening the Plaintiffs’ free speech and equal protection rights.
Discovery was conducted, and the City thereafter moved
for summary judgment on all the claims. The district court
heard argument on that motion and, by its Opinion of January
7, 2010, awarded summary judgment to the City on the mer-
its. The Opinion specified that "there is no evidence in the
record that any speech or expressive conduct was inhibited by
the lack of a public assembly permit." Benham, 682 F. Supp.
2d at 553.
D.
On February 2, 2010, the Plaintiffs noted this appeal. They
allege that we possess jurisdiction under 28 U.S.C. § 1291.
None of the initial appellate briefs, however, discussed
whether or how the Plaintiffs possess standing to sue. On
November 24, 2010, prior to oral argument, we requested sup-
plemental briefs from the parties on the issue of standing.
Those briefs were promptly submitted and the standing issue
was explored with counsel at argument. We briefly summa-
rize those portions of the record pertinent to the standing
issue.
8 BENHAM v. CITY OF CHARLOTTE
The Plaintiffs allege in the complaint, inter alia, that they
"have in the past, and concretely, earnestly[,] and immediately
desire in the immediate future," to share their message
through assemblies on sidewalks and in parks in Charlotte,
J.A. 11;3 that the enforcement of the Public Assembly and
Picketing Ordinances has impaired and continues to impair
their ability to express their message, id. at 21; that both ordi-
nances are unconstitutionally overbroad and vague, id. at 21,
26, 29; that "[t]he future chilling of Plaintiffs’ rights is an
absolute certainty . . . until" an injunction is issued, id. at 22;
and that "[t]he past chilling of Plaintiffs’ rights to freedom of
speech . . . has caused Plaintiffs to forfeit their rights thereby
causing Plaintiffs to suffer actual and nominal damages," id.
at 27. For relief, the complaint seeks both declaratory and
injunctive relief, plus damages.
In the course of discovery, the parties took depositions of
plaintiff Benham and several Charlotte officials. Of particular
relevance to the standing issue is Benham’s deposition testi-
mony. When counsel for the City asked Benham whether he
"had planned [the Roe vs Wade Memorial] and [whether he]
had some vision of what it would look like ahead of time,"
Benham responded affirmatively. Dist. Ct. ECF No. 23-1.
Benham also acknowledged that the event took place. When
asked, "in hindsight, looking at what actually transpired at the
event, was it consistent with what you had envisioned ahead
of time," the Plaintiffs’ lawyer, Mr. Nelson, objected on the
ground that the inquiry "calls for speculation." Id. Nelson
denied that he was instructing Benham not to answer the
question, and Benham was asked the same question for a sec-
ond time. Nelson then reiterated his objection, at which point
Benham interjected, "I’ll stand on that," to which he added,
"I can’t speculate on that." Id. At no time in the proceedings
— in the district court or in this appeal — have the Plaintiffs
3
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
BENHAM v. CITY OF CHARLOTTE 9
asserted that the planning or execution of the event would
have been any different had they received a permit.
II.
The issue of standing to sue is a legal question that we
assess de novo. See White Tail Park, Inc. v. Stroube, 413 F.3d
451, 459 (4th Cir. 2005). When a question of standing is
apparent, but was not raised or addressed in the lower court,
it is our responsibility to raise and decide the issue sua sponte.
See Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 480 (4th Cir. 2005). If we conclude that
the Plaintiffs’ lack of standing deprived the district court of
jurisdiction, "we have jurisdiction on appeal, not of the merits
but merely for the purpose of correcting the error of the lower
court in entertaining the suit." Stephens v. Cnty. of Albemarle,
524 F.3d 485, 490 (4th Cir. 2008) (internal quotation marks
omitted). If an appellate court determines that the district
court lacked jurisdiction, vacatur of the district court’s ruling,
along with a remand with instructions to dismiss, is the appro-
priate disposition. See Walters v. Edgar, 163 F.3d 430, 437
(7th Cir. 1998).
III.
We begin — and end — our inquiry with the question of
whether the Plaintiffs possess standing to pursue this action.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998). Standing to sue is one aspect of the mandate that an
action must present a "case or controversy" under Article III
of the Constitution. See, e.g., Allen v. Wright, 468 U.S. 737,
750-51 (1984). "The case-or-controversy doctrines state fun-
damental limits on federal judicial power in our system of
government," and standing to sue "is perhaps the most impor-
tant of these doctrines." Id. at 750.
A.
The Supreme Court has explained that "the irreducible con-
stitutional minimum of standing contains three elements."
10 BENHAM v. CITY OF CHARLOTTE
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A
claimant must demonstrate (1) an "injury in fact"; (2) a
"causal connection between the injury and the conduct com-
plained of," such that the injury is "fairly traceable" to the
defendant’s actions; and (3) a likelihood that the injury "will
be redressed by a favorable decision." Id. at 560-61 (internal
quotation marks omitted). The first element — injury in fact
— is the one that concerns us here, and a proper assessment
thereof requires us to decide whether the Plaintiffs have "ad-
duce[d] facts demonstrating that [they have] suffered an inva-
sion of a legally protected interest," White Tail Park, Inc. v.
Stroube, 413 F.3d 451, 460 (4th Cir. 2005) (internal quotation
marks omitted), that is "concrete and particularized" and "ac-
tual or imminent," rather than "conjectural or hypothetical,"
Lujan, 504 U.S. at 560 (internal quotation marks omitted).
1.
Although the assertion of a facial challenge to an ordinance
based on the First Amendment may warrant some relaxation
of the prudential rule that a claimant may assert her own
rights only, the claimant must nevertheless satisfy the injury-
in-fact requirement grounded in Article III. See Virginia v.
Am. Booksellers Ass’n, 484 U.S. 383, 392-93 (1988). It is axi-
omatic that the Article III standing requirements apply to all
actions in the federal courts; the fact that the claimant may
assert facial vagueness and overbreadth challenges does not
alter this aspect of federal jurisprudence. See Harrell v. Fla.
Bar, 608 F.3d 1241, 1253 (11th Cir. 2010) (vagueness);
Peterson v. Nat’l Telecomms. & Info. Admin., 478 F.3d 626,
633-34 (4th Cir. 2007) (overbreadth).
A First Amendment injury in fact may take several forms
when a permitting system is at issue. At the most basic level,
the denial of a permit to engage in expressive activity alto-
gether constitutes a First Amendment injury. See City of Lake-
wood v. Plain Dealer Pub. Co., 486 U.S. 750, 759-60 (1988).
Another readily cognizable First Amendment injury occurs
BENHAM v. CITY OF CHARLOTTE 11
when "[a] regulation . . . reduces the size of a speaker’s audi-
ence." Stroube, 413 F.3d at 461. Similarly, "the denial of a
particular opportunity to express one’s views may create a
cognizable claim despite the fact that other venues and oppor-
tunities are available." Id. (internal quotation marks omitted).
A municipal ordinance that interferes with a group’s "need[ ]
to plan the substance and placement of its" message is another
example of a cognizable injury. Va. Soc’y for Human Life,
Inc. v. FEC, 263 F.3d 379, 389 (4th Cir. 2001).
An additional cognizable injury under the First Amendment
is self-censorship, which occurs when a claimant "is chilled
from exercising her right to free expression." Harrell, 608
F.3d at 1254 (internal quotation marks omitted). We have rec-
ognized that, "to demonstrate injury in fact, it [is] sufficient
. . . to show that [one’s] First Amendment activities ha[ve]
been chilled." Smith v. Frye, 488 F.3d 263, 272 (4th Cir.
2007) (internal quotation marks omitted). "[S]ubjective" or
speculative accounts of such a chilling effect, however, are
not sufficient. Laird v. Tatum, 408 U.S. 1, 13-14 (1972). Any
"‘chilling’ effect . . . must be objectively reasonable." Zanders
v. Swanson, 573 F.3d 591, 593-94 (8th Cir. 2009). Neverthe-
less, a claimant "need not show she ceased those activities
altogether" to demonstrate an injury in fact. Smith, 488 F.3d
at 272 (internal quotation marks omitted). Government action
will be sufficiently chilling when it is "likely [to] deter a per-
son of ordinary firmness from the exercise of First Amend-
ment rights." Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005) (internal quo-
tation marks omitted).
2.
Before proceeding to an analysis of the standing to sue
question, we will also explore some procedural issues that can
arise when standing is at issue. The Supreme Court’s decision
in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) —
a case from this Circuit — is particularly instructive. There,
12 BENHAM v. CITY OF CHARLOTTE
the Court considered a Fair Housing Act claim where the
plaintiffs alleged that an apartment complex’s "racial steer-
ing" practices had resulted in the deprivation of the benefits
of interracial association. Id. at 375. The defendants con-
tended that the plaintiffs had suffered no "distinct and palpa-
ble" injury because they did not "demonstrate how the
asserted steering practices . . . may have affected the particu-
lar neighborhoods in which the [plaintiffs] resided." Id. at
377. The district court dismissed the case before any discov-
ery was undertaken. See id. at 369. The Supreme Court agreed
with us that the dismissal was premature because, "in the
absence of further factual development," one could not "say
as a matter of law that no injury could be proved." Id. at 377.4
The Court recognized that the "extreme generality of the com-
plaint makes it impossible to say that [the plaintiffs] have
made factual averments sufficient if true to demonstrate injury
in fact," but nonetheless refused to dismiss in light of "the lib-
eral federal pleading standards," because "[f]urther pleading
and proof might establish" a sufficiently particular injury. Id.
at 377-78. Accordingly, Havens Realty remanded for the
plaintiffs to have "an opportunity to make more definite the
allegations of the complaint," explaining that, "[i]f after that
opportunity the pleadings fail to make averments that meet
the standing requirements . . . , the claims should be dis-
missed." Id. at 378.5
4
In our Havens Realty decision, we explained that the "dismissal pre-
vented plaintiffs . . . from proceeding to trial. Since allegations bearing on
standing must be actualized by proof, the defendants may, on remand,
contest these as any other facts. . . . If the allegations are not supported
by proof at trial, the case may be terminated for lack of standing . . . ."
Coles v. Havens Realty Corp., 633 F.2d 384, 391 (4th Cir. 1980).
5
A defect of standing can arise at the pleading stage in either of two
events: first, where the complaint simply "fail[s] to allege facts upon
which subject matter jurisdiction can be based"; or second, where the alle-
gations are untrue. The procedures for evaluating these two circumstances
differ significantly, and are summarized in Kerns v. United States, 585
F.3d 187, 192 (4th Cir. 2009) (internal quotation marks omitted).
BENHAM v. CITY OF CHARLOTTE 13
B.
With these principles in mind, we turn to the standing to
sue issue in this case, which must be decided favorably to the
Plaintiffs before we can proceed to the merits of the constitu-
tional issues being pursued.
1.
We are confident that the Plaintiffs have not alleged any
injury arising from the lack of a permit for the Roe vs Wade
Memorial. Indeed, this is not a situation where the permit
sought by the Plaintiffs was a necessary prerequisite to any
form of the expressive activity they wished to undertake. And
it is clear that the Plaintiffs cannot invoke as injuries the
absence of street closures or the lack of sound amplification.
The Plaintiffs simply cannot complain that streets in Charlotte
were not closed for their event when they did not request any
street closures, and they have never asserted that the lack of
such closures interfered with their event.6 As for the lack of
sound amplification, the Plaintiffs cannot claim any injury
arising therefrom because they did not avail themselves of a
separate permit to authorize sound amplification that could
have been obtained without a public assembly permit, espe-
cially after defendant Parker went so far as to direct the Plain-
tiffs’ attention to the amplification permit ordinance. See
Charlotte City Code §§ 15-64 to -65.
This case is similar to Stephens v. County of Albemarle,
524 F.3d 485 (4th Cir. 2008), where we faced nearly identical
procedural circumstances and comparably speculative allega-
tions. Stephens had alleged that certain confidentiality agree-
ments entered into by the defendants violated her First
6
On appeal, the Plaintiffs emphasize that, after their permit application
was initially refused, they offered to amend the application to request
street closures. This assertion is unpersuasive, however, because the Plain-
tiffs never allege that the lack of street closures interfered with their event.
14 BENHAM v. CITY OF CHARLOTTE
Amendment right to receive information. After initially dis-
missing her complaint for lack of standing, the district court
reinstated the matter. Thorough discovery was then
undertaken, and the court thereafter awarded summary judg-
ment to the defendants on the merits. On appeal, we raised
standing as an issue sua sponte, and requested supplemental
briefing. In an opinion authored by Chief Judge Williams, we
ruled that Stephens had not shown a cognizable injury,
because she did "not provide[ ] any factual support for" her
allegations. Id. at 493. Instead, she "merely speculate[d] that
she . . . would have been and that she continues to be a poten-
tial recipient of speech from" the individuals whose speech
was limited by the confidentiality agreements. Id. Accord-
ingly, we vacated the district court’s judgment and remanded
for dismissal.
The Plaintiffs’ claims in this case are even more conjectural
and speculative than those involved in Stephens. Indeed, the
Plaintiffs have never explained how the event they held was
any different from the one that would have taken place had a
permit been granted. In Stephens, by contrast, the plaintiff
articulated a chain of events by which the complained-of
harm might have been averted; the deficiency we identified
was the lack of any factual support for the hypothetical chain
of events. Here, however, the Plaintiffs ask that we compare
two events — one purely imaginary — and, on that basis,
divine an injury. Such an inquiry would be an exercise fraught
with supposition, and we decline to take it up.
2.
On the other hand, a question that warrants careful consid-
eration is whether the Plaintiffs suffered some injury because
their lack of a permit prevented them from reserving space,
and thus made the Roe vs Wade Memorial susceptible to
being "displaced" by a recreational or commercial event. The
Plaintiffs simply have not alleged any burden they suffered
from the possibility of such a displacement, however, and
BENHAM v. CITY OF CHARLOTTE 15
they have failed to adduce evidence thereof despite the oppor-
tunity to do so in discovery.
The framework of the Public Assembly and Picketing Ordi-
nances prevents us from immediately foreclosing the possibil-
ity that the Plaintiffs sustained an injury on account of some
burden that those ordinances place on certain forms of expres-
sive assembly. Under that framework, an event in Charlotte
with the characteristics of the Roe vs Wade Memorial — that
is, an event that (1) is a "demonstration" rather than a "festi-
val," (2) does not anticipate street closures, and (3) is set to
take place in a park such as Independence Square Plaza — is
categorically excluded from obtaining a permit under the Pub-
lic Assembly Ordinance. Because the organizers of such an
event will never secure a permit, and because the Picketing
Ordinance forbids a by-right picket from being conducted in
a location reserved for an event that has secured a permit, see
Charlotte City Code § 19-303(b)(1), an event such as this
could be displaced by a later-arriving group that obtained a
permit. The later-arriving group could do so if its event was
either (1) a "demonstration" that sought street closures or (2)
a "festival" that sought street closures or took place in a park.
See id. § 19-311.
The possibility of such a displacement might be a cogniza-
ble constitutional injury on the ground that it would hamper
event organizers from organizing, publicizing, or carrying out
First Amendment protected expression and assembly.
Because a selected venue could be displaced by a second
group that comes along later — perhaps a group expressly
seeking to upset the first group’s planned event — organizers
must plan a by-right event knowing that it could be forced to
change venues at the last moment. Such last-minute changes
could decrease an event’s turnout, and the possibility of dis-
placement could compel the organizers to inform prospective
attendees of a last-minute venue change. Such a burden could
discourage potential organizers from planning by-right pickets
at all. In such circumstances, organizers such as the Plaintiffs
16 BENHAM v. CITY OF CHARLOTTE
might be able to allege a cognizable injury, because the regu-
lations "reduce[d] the size of [their] audience," Stroube, 413
F.3d at 461; because they were denied a "particular opportu-
nity to express [their] views," id.; because the regulations
interfered with their "need[ ] to plan the substance" or, at
least, "placement" of their message, Va. Soc’y for Human
Life, 263 F.3d at 389; or because the challenged ordinances
caused sufficient self-censorship, see Constantine, 411 F.3d at
500.
Even though the possibility of such a displacement might
constitute an injury in some circumstances, we have little dif-
ficulty concluding that the Plaintiffs have not sufficiently
alleged any such injury, and they did not adduce any evidence
thereof in the extensive discovery conducted below. With
respect to an injury that might arise from the mere possibility
that their event could have been displaced, the Plaintiffs are
silent. And the parties conducted extensive discovery that
revealed no evidence of past displacement by other groups, or
evidence of past or present fear of displacement on the part
of the Plaintiffs. The discovery proceedings should have
revealed any such injury, however, since the merits and stand-
ing questions in this case are closely bound together: evidence
of logistical burdens arising from a possibility of displace-
ment would speak both to standing and the merits. Indeed, the
record is replete with earlier permit applications in Charlotte
for other events, as well as deposition testimony of City offi-
cials about such applications. There is not, however, a single
instance where a group sought and was denied a permit, and
then was displaced from its intended venue by another
group’s successful permit application.
In the discovery proceedings, the City repeatedly pressed
Benham to articulate how the Roe vs Wade Memorial would
have differed had it been granted a permit, but he elected to
rest on his counsel’s suggestion that the question called for
speculation. Having chosen not to develop facts that might
have shown a cognizable injury, the Plaintiffs cannot point to
BENHAM v. CITY OF CHARLOTTE 17
that very choice as a basis for their standing, or for a remand
for yet more discovery. Such an assertion would run headlong
into the interests of judicial economy and efficiency; after all,
this appeal is from an award of summary judgment based on
a well-developed record.7
The full evidentiary record readily distinguishes this case
from those where appellate courts have remanded for more
definite allegations, see Havens Realty, 455 U.S. at 377-78, or
for jurisdictional discovery, see Kerns, 585 F.3d at 196. In
Havens Realty and Kerns, for example, there was no discov-
ery conducted before the dismissals, even though such discov-
ery might have shed light on the jurisdictional issues. Here, by
contrast, the district court did not dismiss for lack of standing
and had a fully developed evidentiary record when it awarded
summary judgment. Thus, the Plaintiffs had a full opportunity
to establish their standing to sue, if they could do so.
Although the Plaintiffs allege that they are chilled from hold-
ing future events because of the Public Assembly and Picket-
ing Ordinances, the only evidence on the point — the holding
of the Roe vs Wade Memorial, with apparently no change in
how the event was conducted — belies this conclusory asser-
tion. The discovery already conducted, moreover, afforded the
Plaintiffs the opportunity to adduce evidence of any burden
they would face going forward. Under these circumstances,
therefore, the Plaintiffs lack standing to sue and we are unable
to sustain the summary judgment award.
7
Although these Plaintiffs proceeded to hold their event in Indepen-
dence Square Plaza (as planned), we do not rule out the possibility that a
person hardy enough to withstand a chilling effect could assert an injury
on account of the burden she faced in carrying out the desired activity. A
ruling to the contrary might be especially problematic when a chilling
effect is plausible, since others might never come forward to challenge the
ordinances. See Constantine, 411 F.3d at 500. Here, the defect is simply
the Plaintiffs’ failure to allege (much less prove) that they labored under
any burden in holding their event.
18 BENHAM v. CITY OF CHARLOTTE
3.
As the final aspect of our disposition of the standing to sue
inquiry, we turn to the Plaintiffs’ assertion that the Public
Assembly Ordinance is unconstitutionally vague because the
terms "festival" and "demonstration" overlap, thereby afford-
ing the City impermissible discretion in classifying a pro-
posed event. The Plaintiffs are unable to substantiate this
assertion, however, because "[o]ne to whose conduct a statute
clearly applies may not successfully challenge it for vague-
ness." Parker v. Levy, 417 U.S. 733, 756 (1974). The purpose
of the Roe vs Wade Memorial was public advocacy regarding
the Roe v. Wade decision. As such, the event fell squarely
within the Public Assembly Ordinance’s definition of "dem-
onstration" — that is, "a public display of sentiment for or
against . . . a cause," Charlotte City Code § 19-311. The Pub-
lic Assembly Ordinance, therefore, is not even "arguably
vague" in the context of the Roe vs Wade Memorial. Harrell,
608 F.3d at 1254 (emphasis omitted). Accordingly, the Plain-
tiffs’ vagueness challenge cannot succeed, as "even if the out-
ermost boundaries of [the Public Assembly Ordinance] may
be imprecise, any such uncertainty has little relevance here,
where [the Plaintiffs’] conduct falls squarely within the ‘hard
core’ of the statute’s proscriptions." Broadrick v. Oklahoma,
413 U.S. 601, 608 (1973); see also Hill v. Colorado, 530 U.S.
703, 733 (2000).
IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for dismissal for lack of jurisdiction.
VACATED AND REMANDED