Van Wagner Boston, LLC v. Davey

United States Court of Appeals
For the First Circuit

No. 13-2087

VAN WAGNER BOSTON, LLC AND
VAN WAGNER COMMUNICATIONS, LLC,

Plaintiffs, Appellants,

v.

RICHARD A. DAVEY AND EDWARD J. FARLEY, IN THEIR
OFFICIAL CAPACITIES; MASSACHUSETTS DEPARTMENT OF TRANSPORTATION;
AND MASSACHUSETTS OFFICE OF OUTDOOR ADVERTISING,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Selya and Lipez,
Circuit Judges.

Henry C. Dinger, with whom Michael K. Murray, E. Abim Thomas,
and Goodwin Procter LLP were on brief, for appellants.
Sookyoung Shin, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellees.

October 20, 2014
 SELYA, Circuit Judge. First Amendment rights are

fragile, and it is not only the occasional abuse of censorship

power but also the threat inherent in the existence of that power

that may chill protected expression. Where those risks exist to a

significant degree, facial challenges to the grant of such

authority may be mounted.

In this case, the plaintiffs (related companies engaged

in the business of erecting and displaying billboards and other

outdoor signage) undertook a facial challenge to a state permitting

scheme. The district court dismissed their First Amendment claim

for lack of standing. See Van Wagner Commc'ns, LLC v. Mass. Dep't

of Transp., 953 F. Supp. 2d 313, 316-19 (D. Mass. 2013). After

careful consideration, we conclude that the complaint plausibly

alleges that the plaintiffs are subject to a regulatory permitting

scheme that grants an official unbridled discretion over the

licensing of their expressive conduct and poses a real and

substantial threat of censorship. No more is exigible to give the

plaintiffs standing to proceed with their challenge. Because the

district court erroneously dismissed the plaintiffs' First

Amendment claim for lack of standing, we reverse.

I. BACKGROUND

Massachusetts has long regulated the display of

billboards and other outdoor signage. Van Wagner challenges the

Commonwealth's most recent regulatory scheme, which was enacted in

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2012. A scheme similar to the one now in effect has existed since

2008.1

The challenged regulatory scheme requires most parties

wishing to engage in outdoor advertising to obtain a license in

advance. See 700 Mass. Code Regs. 3.02(1). Such parties must also

(with some exceptions) obtain a permit for each sign. See id.

§ 3.02(2)(a); see also id. § 3.02(2)(b) (limning exceptions for,

inter alia, on-premise signs, on-property for sale or for rent

signs, artistic signs, and signs "erected solely for . . . public

elections"). The regulations vest the authority to issue such

licenses and permits in the Director of the Commonwealth's Office

of Outdoor Advertising (the Director), see id. § 3.01, and provide

that he may withhold a permit, in his sole discretion, upon a

determination that the particular sign "would not be in harmony

with or suitable for the surrounding area or would do significant

damage to the visual environment," id. § 3.07(4). In making such

determinations, the Director "may" consider an array of enumerated

factors, including (but not limited to) the physical

characteristics of both the proposed sign and the locality; the

effects on scenic beauty; and "the health, safety and general

welfare of the public." Id.

1
The parties dispute the extent to which the 2012 iteration
of the regulatory scheme effected a meaningful change in
preexisting procedure. This appeal does not require us to enter
into the merits of this dispute.

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 When issued, a permit is for a fixed duration and is

subject to annual renewal based on the same criteria. See id.

§§ 3.02(2)(c), 3.08(3). It is, moreover, subject to revocation at

any time for cause. See id. §§ 3.03(2)(d), 3.09(2). The

regulations provide an illustrative list of grounds constituting

cause for the revocation of a permit. See id. §§ 3.03(2)(d),

3.09(2)(a)-(e) (listing, as examples, noncompliance with state and

federal law; actions having an adverse effect on "the public

health, safety, welfare or the environment"; submission of false or

misleading information; and refusal to submit requested

information). Nevertheless, this list is non-exclusive, and the

regulations emphasize that the Director's revocation authority is

"[w]ithout limitation." Id. The regulations grant the Director

similarly broad authority to revoke a billboard owner's license.

See id. §§ 3.03(1)(b), 3.09(2).

This new permitting scheme did not please all comers.

Van Wagner Boston, LLC is a wholly owned subsidiary of Van Wagner

Communications, LLC, which is the fourth largest outdoor

advertising company in the United States. These two entities

(collectively, Van Wagner) had lobbied unsuccessfully against the

2012 amendments to the regulatory scheme and, when those amendments

were adopted, sought relief from them. To this end, Van Wagner

brought suit in the United States District Court for the District

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of Massachusetts against state agencies and officials charged with

administering the regulations (collectively, the Commonwealth).

The complaint invoked 42 U.S.C. § 1983 and sought a

declaration that the regulations imposed a prior restraint on, and

therefore violated, Van Wagner's free speech rights under the First

and Fourteenth Amendments.2 It also alleged that the regulations

were infirm on various state-law grounds.

The Commonwealth moved to dismiss for lack of subject-

matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The district

court obliged: it jettisoned the First Amendment claim for want of

standing and declined to exercise supplemental jurisdiction over

the state-law claims. See Van Wagner, 953 F. Supp. 2d at 318-19.

This timely appeal followed.

II. STANDING

This appeal raises only "pure (or nearly pure) questions

of law" and, thus, engenders de novo review. Valentin v. Hosp.

Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). In carrying out

this review, "we take as true all well-pleaded facts in the

plaintiffs' complaint[], scrutinize them in the light most

hospitable to the plaintiffs' theory of liability, and draw all

2
In addition to the section 1983 count, the complaint
contained a parallel count brought under the Declaratory Judgment
Act, 28 U.S.C. §§ 2201-2202. The district court dismissed this
count on the ground that the Declaratory Judgment Act provides no
independent basis for federal jurisdiction. See Van Wagner, 953 F.
Supp. 2d at 316. Van Wagner has not challenged this ruling.

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reasonable inferences therefrom in the plaintiffs' favor."

Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009).

"Where, however, those facts are illuminated, supplemented, or even

contradicted by other materials in the district court record, we

need not confine our jurisdictional inquiry to the pleadings, but

may consider those other materials." Aguilar v. U.S. ICE, 510 F.3d

1, 8 (1st Cir. 2007).

The Constitution confines federal courts to the

adjudication of actual cases and controversies. See U.S. Const.

art. III, § 2; see also Valley Forge Christian Coll. v. Ams. United

for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982).

This circumscription must be taken seriously: ascertaining whether

a matter is a case or controversy within the meaning of Article III

"assumes particular importance in ensuring that the Federal

Judiciary respects the proper — and properly limited — role of the

courts in a democratic society." DaimlerChrysler Corp. v. Cuno,

547 U.S. 332, 341 (2006) (internal quotation marks omitted). After

all, "[i]f a dispute is not a proper case or controversy, the

courts have no business deciding it, or expounding the law in the

course of doing so." Id.

A fundamental component of an Article III case is that

the plaintiff has standing to press its claim. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). The "irreducible

constitutional minimum of standing" requires that the plaintiff has

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suffered an injury in fact, that this injury was caused by the

conduct complained of, and that the relief sought is likely to

redress the injury suffered. See id. at 560-61; Katz v. Pershing,

LLC, 672 F.3d 64, 71-72 (1st Cir. 2012). The party invoking

federal jurisdiction bears the burden of establishing each of the

three elements required for standing. See Lujan, 504 U.S. at 561;

McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 67 (1st Cir. 2003).

The only debatable question regarding Van Wagner's standing

involves the first element, that is, whether Van Wagner has

sufficiently alleged an injury in fact.

The district court answered this injury-in-fact question

in the negative. See Van Wagner, 953 F. Supp. 2d at 316-18.

According to the Commonwealth, Van Wagner had applied for more than

seventy permits since November of 2009 without having had a single

application denied.3 Van Wagner challenges the district court's

conclusion, asserting that it is subject to a regulatory scheme

that gives the Director unbridled discretion with respect to

licensing its expressive conduct and that being subject to such a

standardless regime is itself a cognizable injury under the

3
Van Wagner alleges that several months after the district
court entered its order of dismissal, the Commonwealth rejected one
of its permit applications. For present purposes, this denial is
an irrelevancy. An inquiry into standing must be premised on the
facts existing at the time suit was commenced. See Ramírez v.
Sánchez Ramos, 438 F.3d 92, 97 (1st Cir. 2006).

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doctrine announced in City of Lakewood v. Plain Dealer Publishing

Co., 486 U.S. 750 (1988).

An injury in fact must be both "concrete and

particularized and actual or imminent, not conjectural or

hypothetical." Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,

2341 (2014) (internal quotation marks omitted). With regard to

facial First Amendment challenges to laws imposing prior restraints

on constitutionally protected expression, those requirements have

been given a special gloss. In City of Lakewood, the Supreme Court

confronted a municipal ordinance that was alleged to vest the mayor

with unbridled discretion to grant or deny permits for the

placement of newsracks on city property. See 486 U.S. at 753-55.

Though the plaintiff there (a newspaper publisher) had not yet

applied for any permits, the Court nonetheless allowed it to mount

a facial challenge to the ordinance. See id. at 754-55. The Court

reasoned that "when a licensing statute allegedly vests unbridled

discretion in a government official over whether to permit or deny

expressive activity, one who is subject to the law may challenge it

facially without the necessity of first applying for, and being

denied, a license." Id. at 755-56 (citing, inter alia, Freedman v.

Maryland, 380 U.S. 51, 56 (1965)).

The Court voiced two salient concerns about laws that

cede unfettered discretion to government officials over

"expression, or . . . conduct commonly associated with expression."

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Id. at 759. For one thing, such schemes may prompt regulated

parties to self-censor their speech out of, say, a desire "to

receive a favorable and speedy disposition on [a] permit

application." Id. at 758. For another thing, without clear

standards "post hoc rationalizations by the licensing official and

the use of shifting or illegitimate criteria are far too easy,

making it difficult for courts to determine in any particular case

whether the licensor is permitting favorable, and suppressing

unfavorable, expression." Id. These concerns undergirded the

Court's conceptualization of injury sufficient to support standing

in a way that would allow facial challenges to such licensing

schemes to proceed before the twin threats of self-censorship and

undetectable content-based censorship could take hold. See id. at

759.

To be sure, one might argue (as the Commonwealth does)

that merely being "subject to" a regulation is too subtle a harm to

constitute a cognizable injury in fact. But such an argument flies

in the teeth of City of Lakewood. What is more, it has

consistently been rejected by federal appellate courts, which

regularly have held that when a regulation is alleged to vest

unbridled discretion in a government official to license a

plaintiff's expressive activity and to pose a real and substantial

threat of censorship, the plaintiff need only be subject to that

regulation to establish a cognizable injury in fact. See, e.g.,

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Miller v. City of Cincinnati, 622 F.3d 524, 531-32 (6th Cir. 2010);

CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257,

1274-75 (11th Cir. 2006); Southworth v. Bd. of Regents of the Univ.

of Wis. Sys., 307 F.3d 566, 580-81 (7th Cir. 2002); MacDonald v.

Safir, 206 F.3d 183, 188-89 (2d Cir. 2000); see also Get Outdoors

II, LLC v. City of San Diego, 506 F.3d 886, 894-95 (9th Cir. 2007)

(recognizing doctrine). It is being subject to a prior restraint

on protected expression through requirements embodying standardless

discretion, not being harmed by the unfavorable exercise of such

discretion, that causes the initial injury.

This construct is consistent with statements in one of

our own cases. In Osediacz v. City of Cranston, 414 F.3d 136 (1st

Cir. 2005), a local resident challenged a municipal policy

allegedly granting the mayor unfettered discretion to approve or

reject the erection of holiday displays on a prime piece of city

property. See id. at 137. We held that the plaintiff had suffered

no injury in fact because she had failed to allege that she had any

interest in ever erecting a holiday display on the site. See id.

at 141-42. She was, therefore, not "subject to" the suspect policy

in any meaningful sense. See id. at 143. At the same time, we

noted that the standing inquiry in this context is "not very

demanding"; and we made it pellucid that a plaintiff could satisfy

the injury-in-fact requirement without actually applying for a

permit. Id.

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 Of course, there are limits to the City of Lakewood

standing doctrine. In delineating these boundaries, the Court

declared that the challenged regulation "must have a close enough

nexus to expression, or to conduct commonly associated with

expression, to pose a real and substantial threat of the identified

censorship risks." City of Lakewood, 486 U.S. at 759; accord

MacDonald, 206 F.3d at 189. The Court reasoned that a facial

challenge was appropriate because the challenged regulation was

narrowly directed at an activity closely associated with expression

and required annual relicensing, thereby enabling the decisionmaker

to consider a speaker's viewpoint over time. See City of Lakewood,

486 U.S. at 759-60.

The case at hand falls comfortably within the compass of

the City of Lakewood doctrine. The regulatory permitting scheme is

alleged to confer unbridled discretion on the Director with respect

to granting permits for billboards. Billboards, in turn, have a

close nexus to expression. See, e.g., Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 501-02 (1981) (plurality opinion); id. at

524 (Brennan, J., concurring). After all, the very purpose of a

billboard is to serve as a medium for conveying information and

ideas. Moreover, it is evident that Van Wagner (which, at the time

of the commencement of the action, already had applied for dozens

of permits) is subject to the challenged scheme. See MacDonald,

206 F.3d at 189. And, finally, the regulations require the annual

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renewal of permits. This complex of circumstances makes out an

injury in fact that is sufficient to ground Van Wagner's standing.

The Commonwealth presents a host of arguments in

opposition to this conclusion. We find none of them convincing.

The Commonwealth's principal argument is that the City of

Lakewood doctrine applies only after a court finds some evidence

that the twin threats of self-censorship and undetectable content-

based censorship have materialized. Those threats, the

Commonwealth's argument runs, are not apparent here for two

reasons.

First, the Commonwealth notes that the Massachusetts

regulatory scheme is content-blind; that is, it does not require a

permit-seeker to disclose the proposed content of its sign as part

of the permit application process. See 700 Mass. Code Regs. 3.06.

This circumstance, the Commonwealth says, makes any prospect of

self-censorship or veiled content-based censorship wildly

speculative. This argument has a patina of plausibility, but upon

closer examination that patina melts away like late-fallen snow on

a balmy day in May.

The Commonwealth's argument stems from a misreading of

City of Lakewood. We do not understand the Court's discussion of

the twin threats presented by unbridled discretion as a set of

prerequisite conditions that must actually be tripped before the

City of Lakewood doctrine can be invoked. In particular, City of

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Lakewood does not require a plaintiff to identify instances of

self-censorship or content-based decisionmaking before a facial

challenge may be mounted. The Court's decision imposes no such

requirement, and no federal appellate court has espoused such a

view. Rather, the federal cases all are in harmony with the

Supreme Court's presumption that regulatory schemes exhibiting the

features it identified pose these threats.4 See, e.g., Miller, 622

F.3d at 531-32; Get Outdoors II, 506 F.3d at 894-95; CAMP Legal

Defense Fund, 451 F.3d at 1274-75; Osediacz, 414 F.3d at 143;

Southworth, 307 F.3d at 580-81; MacDonald, 206 F.3d at 188-89.

This is a perfectly sensible approach. The case law teaches — and

common sense verifies — that the threats are inherent in the

standardless nature of such regulatory schemes.

In all events, the ordinance that was before the City of

Lakewood Court — like the regulations at issue here — contained a

content-blind permitting scheme. See City of Lakewood, 486 U.S. at

753-54 & n.2. The Court found that the scheme's periodic licensing

requirement subjected it to facial attack even though the regulator

could not view the content of the speech for which a license was

sought. See id. at 759. Such standardless renewal provisions give

4
The Ninth Circuit's decision in Hunt v. City of L.A., 638
F.3d 703 (9th Cir. 2011) is not to the contrary. Although the
court found that the plaintiffs lacked standing to challenge an
ordinance because they had been granted permits, it recognized that
the cognizable injury is the "threat of prior restraint." Id. at
718. Inasmuch as the challenged ordinance had been repealed, see
id. at 706-07, the threat of prior restraint had dissipated.

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rise to a well-founded fear that speakers may feel pressure to

self-censor, "under no illusion regarding the effect of the[ir]

'licensed' speech on the[ir] ability to continue speaking in the

future." Id. at 759-60. The Massachusetts regulatory scheme

contains just such a provision.

Indeed, the Massachusetts scheme goes even further than

the permitting scheme at issue in City of Lakewood. The Director

has broad authority to revoke permits previously issued. See 700

Mass. Code Regs. 3.03(2)(d), 3.09(2). The regulations place no

limit on what constitutes cause for revoking a permit. See id. §

3.09(2). Because the revocation of a permit prevents a billboard

owner from engaging in further protected expression, those

provisions pose the same potential threat as the provisions

governing the granting and renewal of permits. See New Eng. Reg'l

Council of Carpenters v. Kinton, 284 F.3d 9, 25 & n.8 (1st Cir.

2002). Under this paradigm, a permit holder always must be wary of

displaying a contentious message out of concern that the Director

will retaliate by revoking its existing permits.5

5
Van Wagner also alleged in its complaint that the license
revocation provisions grant the Director unbridled discretion and
threaten free expression. The regulations grant the Director
similarly broad authority to revoke licenses, and revocation
requires a party to remove all its billboards within sixty days.
See 700 Mass. Code Regs. 3.03(1)(b)-(c). License revocation
potentially threatens self-censorship to an even greater degree
than permit revocation since the Director's broad discretion can
mask retaliation targeting a party's entire business as opposed to
a single billboard.

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 Second, the Commonwealth points out that between November

2009 and May 2013, Van Wagner had applied for over seventy permits

without having a single application denied. As the Commonwealth

sees it, this fact shows that the censorship risks are only

theoretical. But that is far too optimistic a view. Van Wagner is

a large, repeat player in the world of outdoor advertising.

Consequently, it may plausibly fear incurring the Director's ire

any time an existing or potential client seeks to display what

might be deemed a controversial message. That threat exists

regardless of how many applications Van Wagner has had approved in

the past. After all, "[i]t is not merely the sporadic abuse of

power by the censor but the pervasive threat inherent in its very

existence that constitutes the danger to freedom of discussion."

City of Lakewood, 486 U.S. at 757 (quoting Thornhill v. Alabama,

310 U.S. 88, 97 (1940)). Seen in this light, Van Wagner's record

of success is irrelevant to determining whether it continues to

suffer an injury.

The Commonwealth next contends that the Massachusetts

regulatory scheme does not grant unbridled discretion to the

Director. In its estimation, the illustrative list of factors to

be used by the Director in making permitting decisions, see 700

Mass. Code Regs. 3.07(4), cabins his discretion. This compendium

of considerations includes, among other things, "the health, safety

and general welfare of the public; the scenic beauty of the area;

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[and] the physical, environmental, cultural, historical or

architectural characteristics of the location and the area." Id.

The weight of the burden on the party seeking to maintain

standing depends on "the manner and degree of evidence required at

the . . . stage[] of the litigation" at which the issue arises.

Lujan, 504 U.S. at 561. Here, the Commonwealth purposed to test

standing by an immediate motion to dismiss. At this early stage,

we are bound to accept the well-pleaded factual allegations in the

complaint and draw all reasonable inferences therefrom in Van

Wagner's favor. See Fothergill, 566 F.3d at 251. Thus, we are not

tasked with determining whether the challenged regulatory scheme

actually vests the Director with unbridled discretion. Instead, we

only must determine whether the complaint plausibly pleads the

unbridled discretion theory. See Ashcroft v. Iqbal, 556 U.S. 662,

678-79 (2009).

This is a low bar, and the complaint clears it with ease.

It alleges that the challenged regulations "fail to provide the

Director with objective standards to govern his permitting

decisions, and effectively provide the Director with standardless

discretion over whether and when to issue, renew and revoke

licenses and permits." Those allegations are far from implausible.

A reasonable adjudicator plausibly could conclude that the

regulatory scheme contains a paucity of objective factors, relying

instead on a number of subjective factors that the Director "may"

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consider.6 See 700 Mass. Code Regs. 3.07(4). These factors

plausibly could be read to be so general and amorphous as to

provide easy cover for decisions that are actually content-based.

See Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d

814, 818-19 (9th Cir. 1996) (holding unconstitutional ordinance

that gave city officials unbridled discretion to determine whether

a particular sign was harmful to community welfare or aesthetic

quality).

Fighting on, the Commonwealth questions whether the City

of Lakewood doctrine has any purchase in the context of commercial

speech. This argument has an ephemeral quality. The Commonwealth

notes an "open question"; refers to a suggestion to this effect in

the district court's rescript, see Van Wagner, 953 F. Supp. 2d at

317; and cites footnotes in two Supreme Court cases, see Cent.

Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S.

557, 571 n.13 (1980) (observing that "traditional prior restraint

doctrine may not apply" to commercial speech); Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771

n.24 (1976) (recognizing that "commercial speech may be more

6
It is true that the regulatory scheme contains some
objective criteria pertaining to the location and physical
characteristics of a sign. See, e.g., 700 Mass. Code Regs.
3.07(3), (5)-(8), (14)-(16). But it also directs the denial or
non-renewal of permits for signs that the Director deems to be
incompatible with the surrounding area or visually destructive.
See id. §§ 3.07(4), 3.08(3). That determination is wholly within
the Director's discretion and guided in substantial part by an open
set of highly amorphous factors that he "may" consider. See id.

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durable than other kinds"). Its thesis seems to be that this case

implicates strictly commercial speech and that, therefore, City of

Lakewood is inapposite.

The factual premise of the Commonwealth's thesis is

simply wrong. It confuses a recognized category of First Amendment

analysis — commercial speech simpliciter — with something quite

different: those who have a commercial interest in protected

expression. See Metromedia, 453 U.S. at 504 n.11 (plurality

opinion). Although Metromedia was a fractured opinion, no fewer

than seven Justices gave weight to the billboard companies' plaints

regarding the impact of regulations on the noncommercial speech

that sometimes appears on billboards. See id. at 504 & n.11

(plurality opinion); id. at 524-26 (Brennan, J., concurring); id.

at 543-44 (Stevens, J., dissenting). The courts of appeals

(including this court) have followed that lead, repeatedly

analyzing billboard regulations with an eye to their effect on both

the commercial and noncommercial messages that billboards may

carry. See, e.g., Interstate Outdoor Adver., L.P. v. Zoning Bd. of

Twp. of Mount Laurel, 706 F.3d 527, 530, 534 (3d Cir. 2013);

Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 802-

03 (8th Cir. 2006); Ackerley Commc'ns of Mass., Inc. v. City of

Somerville, 878 F.2d 513, 517-18 (1st Cir. 1989).

Here, Van Wagner has alleged that one use of billboards

and other outdoor signs is to "convey non-commercial messages to

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the public."7 Crediting this well-pleaded fact (as we must at this

stage of the litigation), billboard vendors like Van Wagner are

better regarded as entities that have a commercial interest in

protected expression. Thus, any regulation restricting Van

Wagner's operations has the potential to affect the availability of

channels of communication for noncommercial speech. Seen in this

light, the Commonwealth's attempt to categorize this case as one

implicating only commercial speech interests is struthious.

In a last-ditch effort to snatch victory from the jaws of

defeat, the Commonwealth suggests that the holding in City of

Lakewood turned, at least in part, on censorship risks unique to

newspapers. We do not understand the Court to have been so

narrowly focused; rather, the Court's holding is broadly applicable

to many forms of expression.

The City of Lakewood dissenters questioned whether the

Court's holding would apply to a section of the challenged

ordinance requiring a permit to place a soda machine on city

property. See 486 U.S. at 788-89 (White, J., dissenting). Instead

of distinguishing the case on the obviously available ground that

the plaintiff was a newspaper publisher, the majority stated only

7
Although Van Wagner has not made a specific allegation anent
the carriage of noncommercial messages on its billboards, it does
allege that its signs are capable of carrying both commercial and
noncommercial messages. At any rate, we think it reasonable to
infer from the complaint that Van Wagner's billboards from time to
time have carried and will carry noncommercial messages.

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that its holding would not apply to "laws of general application

that are not aimed at conduct commonly associated with expression."

Id. at 760-61. Moreover, the majority drew its reasoning from a

venerable line of cases addressing expressive activities other than

newspaper publication. See id. at 755-56 & n.6. If more were

needed — and we doubt that it is — the legion of cases applying

City of Lakewood outside the newspaper industry leads inexorably to

the conclusion that the limitation proposed by the Commonwealth is

insupportable. See, e.g., CAMP Legal Defense Fund, 451 F.3d at

1274-75; Southworth, 307 F.3d at 580-81; MacDonald, 206 F.3d at

188-89.

To say more about standing would be supererogatory. The

short of it is that Van Wagner has plausibly alleged that it is

subject to a regulatory permitting scheme that chills protected

expression by granting a state official unbridled discretion over

the licensing of its expressive conduct. It follows — as night

follows day — that Van Wagner has standing to mount a facial

challenge to that regulatory permitting scheme.

III. MISCELLANEOUS MATTERS

This leaves two loose ends, which we can tie up with some

celerity. The first loose end involves Van Wagner's state-law

claims. After the district court dismissed Van Wagner's First

Amendment claim for lack of standing, it declined to exercise

supplemental jurisdiction over these state-law claims. See 28

-20-
U.S.C. § 1367(c). It proceeded to dismiss them without prejudice.

See Van Wagner, 953 F. Supp. 2d at 318-19.

Van Wagner asks us to reinstate its state-law claims.

When a federal claim forms the linchpin for federal jurisdiction

and the court dismisses that claim early in the game, it often will

decline to exercise supplemental jurisdiction over related state-

law claims. If, however, the dismissal of the linchpin federal

claim proves to have been improvident, the state-law claims

routinely are reinstated. See, e.g., Grajales v. P.R. Ports Auth.,

682 F.3d 40, 50 (1st Cir. 2012); Sepúlveda-Villarini v. Dep't of

Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010).

We discern no reason why that salutary praxis should not

be followed here. Consequently, we direct the district court, on

remand, to reinstate Van Wagner's state-law claims.

The other loose end involves the Commonwealth's two

additional defenses. It argues, in the alternative, that the

district court lacks jurisdiction over Van Wagner's state-law

claims under the Eleventh Amendment. See U.S. Const. amend. XI;

see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

103-06 (1984). It also argues that the district court ought to

abstain from deciding Van Wagner's First Amendment claim until the

Massachusetts courts have had an opportunity to weigh in on the

construction and operation of the regulatory permitting scheme.

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See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941);

Barr v. Galvin, 626 F.3d 99, 107-08 (1st Cir. 2010).

We take no view on either of these issues. The court

below did not address them, and we think that it would be

inappropriate for us to do so without a better developed record and

rulings from the district court. See Montalvo v. Gonzalez-Amparo,

587 F.3d 43, 49 nn.5-6 (1st Cir. 2009).

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we reverse the order dismissing Van Wagner's First Amendment claim

for lack of standing and remand for further proceedings consistent

with this opinion. We express no opinion on the merits of Van

Wagner's First Amendment claim.

Reversed and remanded.

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