United States Court of Appeals
For the Eighth Circuit
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No. 20-1538
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Animal Legal Defense Fund; Animal Equality; Center for Biological Diversity;
Food Chain Workers Alliance,
lllllllllllllllllllllPlaintiffs - Appellants,
v.
Jonathan Vaught, doing business as Prayer Creek Farm; DeAnn Vaught, doing
business as Prayer Creek Farm; Peco Foods, Inc.,
lllllllllllllllllllllDefendants - Appellees.
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Reporters Committee for Freedom of the Press; Deans and Law Professors; 23
Media Organizations,
lllllllllllllllllllllAmici on Behalf of Appellants.
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: February 25, 2021
Filed: August 9, 2021
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Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Animal Legal Defense Fund, Animal Equality, Center for Biological Diversity,
and Food Chain Workers Alliance brought an action against Peco Foods, Inc., and
Jonathan and DeAnn Vaught. The complaint sought an order that would prevent Peco
Foods and the Vaughts from bringing a civil suit against the plaintiffs under an
Arkansas statute, Ark. Code Ann. § 16-118-113. The district court dismissed the
action, reasoning that the complaint failed to allege sufficient facts to establish Article
III standing. We reach a different conclusion, and reverse and remand for further
proceedings.
The statute at issue provides a “[c]ivil cause of action for unauthorized access
to property.” Ark. Code Ann. § 16-118-113. The law prohibits a person “who
knowingly gains access to a nonpublic area of a commercial property” from engaging
in “an act that exceeds the person’s authority.” Id. § 16-118-113(b). The plaintiffs,
who describe themselves as “nonprofit organizations dedicated to reforming industrial
animal agriculture,” claim that the statute violates their rights to free speech under the
First Amendment. According to the complaint, defendant DeAnn Vaught was a
sponsor of the legislation while serving in the Arkansas legislature.
The two lead organizations, Animal Legal Defense Fund and Animal Equality,
allege that they have “specific and definite plans” to investigate Peco Foods’s chicken
slaughterhouses and the Vaughts’ pig farm. The organizations allege that they would
send undercover investigators to seek employment with the slaughterhouse and the
farm, or with third parties who have access to the target facilities. Once employed,
the investigators would collect information on the operation of the facilities by
personal observation or through the use of unattended recording devices. But the lead
organizations have refrained from investigating due to the threat that Peco Foods and
the Vaughts, as commercial property owners, will bring a lawsuit against them under
the statute. Center for Biological Diversity and Food Chain Workers Alliance engage
in advocacy and assert that they have made arrangements with the lead organizations
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to receive useful information that would result from their investigations. The
plaintiffs argue that they have been “chilled” from engaging in activity that is
protected under the First Amendment.
The district court concluded that the plaintiffs failed adequately to allege Article
III standing to sue. The court decided that any injury was too speculative, because
neither Peco Foods nor the Vaughts had hired an investigator affiliated with the
plaintiffs, so no such investigator had developed information that the organizations
would seek to publish. The court further reasoned that the complaint failed to allege
that Peco Foods and the Vaughts engage “in the type of practices [the plaintiffs]
would like to expose.” The plaintiffs appeal, and we review the district court’s
decision de novo.
To establish Article III standing, plaintiffs must show (1) an injury in fact, (2)
a causal relationship between the injury and the challenged conduct, and (3) that a
favorable decision will likely redress the injury. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992). The plaintiffs bear “the burden of establishing these elements,”
and must support each element “in the same way as any other matter” on which they
bear the burden of proof. Id. at 561. On a motion to dismiss, therefore, the plaintiffs
must allege sufficient facts to support a reasonable inference that they can satisfy the
elements of standing. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007); Stalley v. Cath. Health Initiatives, 509 F.3d
517, 521 (8th Cir. 2007). A plaintiff satisfies the injury-in-fact element if it alleges
“an intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
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(1979)). “An allegation of future injury may suffice if the threatened injury is
‘certainly impending,’ or there is a ‘substantial risk that the harm will occur.’” Id. at
158 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410, 414 n.5 (2013)).
We conclude that the complaint adequately alleges the elements of Article III
standing. First, the plaintiffs allege that, but for the statute, the lead organizations
would send an investigator to gather information and take video and audio recordings
in the facilities owned by Peco Foods and the Vaughts. They assert that all plaintiffs
would use the results of the investigations in their advocacy. This conduct is arguably
affected with a constitutional interest, because “the creation and dissemination of
information are speech within the meaning of the First Amendment.” Sorrell v. IMS
Health Inc., 564 U.S. 552, 570 (2011).
Second, the complaint alleges an intention to engage in a course of conduct
arguably proscribed by the Arkansas statute. See Susan B. Anthony List, 573 U.S. at
162-63; PETA, Inc. v. Stein, 737 F. App’x 122, 130 (4th Cir. 2018) (per curiam). The
statute prohibits “an act that exceeds” a person’s authority in nonpublic areas of
commercial property, and it lists activities in which an employee may not engage.
Ark. Code Ann. § 16-118-113(b), (c).
The lead organizations allege that they have retained an experienced
investigator to conduct an employment-based investigation into Peco Foods’s
facilities and the Vaughts’ farm. The complaint asserts that the investigator will
“apply for and obtain a job through the usual channels,” and “gather information and
record audio files and video footage in the facilities’ nonpublic areas” for use in
advocacy. In the terms of the statute, the complaint describes an intention to engage
in an act that “[c]aptures or removes the employer’s data, paper, [or] records,” or
“[r]ecords images or sound” in order to use that information “in a manner that
damages the employer.” Id. § 16-118-113(c)(1)-(2). The organizations also allege
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that by so doing, they would commit “an act that substantially interferes with the
ownership or possession” of the property. Id. § 16-118-113(c)(5). The complaint
further provides that the investigators will place “an unattended camera . . . to record
images or data” without authorization and in violation of the statute. Id. § 16-118-
113(c)(3).
The lead organizations agreed to “share the information they obtain[] from [the]
investigations” into the Vaughts’ farm and Peco Foods’s facilities, so that the Center
for Biological Diversity and Food Chain Workers Alliance may advocate against the
activities at the facilities. The advocacy organizations thus allege an intent to engage
in a course of conduct that arguably “assists” an employee to use a “recording in a
manner that damages the employer.” Id. § 16-118-113(c)(2), (d).
Third, the complaint sufficiently alleges a credible threat of enforcement. A
plaintiff’s fear of enforcement must be objectively reasonable, meaning that the threat
of enforcement may not be “imaginary or wholly speculative.” Susan B. Anthony List,
573 U.S. at 160 (quoting Babbitt, 442 U.S. at 302); see also 281 Care Comm. v.
Arneson, 638 F.3d 621, 629-30 (8th Cir. 2011). Peco Foods and the Vaughts first
contend that it is speculative that an investigator will be hired by either of them, and
the Vaughts suggest that a family farm “does not frequently hire employees.” But
Animal Legal Defense Fund states that it has successfully investigated “facilities like
those” owned by Peco Foods and the Vaughts. Animal Equality alleges that it has
filmed inside hundreds of facilities, and that it was “the first organization” to do so at
several facilities. These allegations of previous success lend “concreteness and
specificity to the plaintiffs’ claims.” Initiative & Referendum Inst. v. Walker, 450
F.3d 1082, 1089 (10th Cir. 2006) (en banc). The complaint also explains that
investigators need not be placed directly with Peco Foods or the Vaughts, but could
be employed by another business that has access to the target facilities.
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Like the plaintiffs in PETA, Inc. v. Stein, the organizations here alleged they
have “in the past conducted actual undercover investigations . . . for the purpose of
uncovering unethical or illegal treatment of animals and disseminating such
information to the public.” 737 F. App’x at 130. And they allege that “they wish to
continue such investigations in furtherance of their missions and that they are fully
prepared to go forward but for their fear of liability.” Id. Under those circumstances,
we agree with the Fourth Circuit that the complaint has alleged sufficient facts to
establish a plausible claim of injury in fact and jurisdiction.
The Vaughts and Peco Foods argue that there is no credible threat that they
would enforce the statute, because the organizations would not find it worthwhile to
infiltrate their facilities in the first place. This is so, say the property owners, because
they do not engage in the type of practices that the lead organizations would like to
document. The complaint alleges, however, that it is “likely,” given the dimensions
of the Vaughts’ farm, that pigs will be contained in “nearly immovable quarters.” The
plaintiffs further assert that “regardless of what particular practices” the farm employs,
the organizations “have an interest in uncovering the activities and conditions” on the
farm, because DeAnn Vaught sponsored the legislation and allegedly wished to
conceal the activities and conditions. The complaint also alleges that the federal
government authorized one of Peco Foods’s facilities to use a high-speed slaughter
line, and all of Peco Foods’s facilities use a “live hang” method for slaughter. The
complaint states that the investigator will document the conditions in the facilities
because there is an “important public interest in understanding how Peco operates.”
These allegations, taken as true, show an intent to record the conditions of the
facilities and to use those recordings.
Peco Foods and the Vaughts next argue that for the plaintiffs to have an injury
in fact, they must be poised to publish information gathered from the facilities. This
argument understates the scope of the statute. The law prohibits the placement of an
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“unattended camera . . . to record images or data for an unlawful purpose,” with no
requirement that the “images or data” be published. Ark. Code Ann. § 16-118-
113(c)(3). The statute provides for liquidated damages up to $5,000 per day of
violation. Id. § 16-118-113(e)(4). The complaint, moreover, plausibly alleges that the
plaintiffs would collect and disseminate information from the facilities in violation of
the statute. A plaintiff need not expose itself to liability in order to show an injury in
fact, and the statute’s deterrent effect on the investigations is sufficient to establish an
injury. See Susan B. Anthony List, 573 U.S. at 158-59.
Peco Foods and the Vaughts argue finally that there is no credible threat of
enforcement because they are private parties and have not threatened to bring suit. A
formal threat, however, is not required to establish an injury in fact. The question is
whether the plaintiffs have an objectively reasonable fear of legal action that chills
their speech. Balogh v. Lombardi, 816 F.3d 536, 542 (8th Cir. 2016).
Citing Eckles v. City of Corydon, 341 F.3d 762 (8th Cir. 2003), the Vaughts
argue that a specific threat of enforcement is necessary before there is an objectively
reasonable fear of enforcement. Eckles does not support that proposition. The
plaintiff in Eckles was embroiled in a dispute with a city and county over signage on
his property that violated a city ordinance. The lawsuit asserted an injury in fact based
on a letter from a law firm saying that it would “recommend” that county officials
pursue a libel action against the plaintiff if he did not remove certain signs. This court
noted that the law firm’s letter did not contain a threat of prosecution (no county
ordinance was involved), but the decision did not hold that such a threat was essential
to establish injury. Rather, the court determined that the alleged injury from the
county in that case was “merely conjectural or hypothetical,” because it was premised
on a conditional recommendation from a law firm to pursue a private civil action. Id.
at 768-69.
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In this case, the lead organizations sent letters to Peco Foods and the Vaughts
requesting that they waive their rights under the statute; neither defendant responded.
The purpose of the Arkansas statute is to provide parties like Peco Foods and the
Vaughts a right of action against organizations like the plaintiffs if they gain
unauthorized access to commercial property. The property owners have declined to
disavow an intent to pursue their rights under the law if they are subjected to
violations. It is plausible to believe that the defendants “will likely react in predictable
ways” by resorting to their legal remedies. See Dep’t of Com. v. New York, 139 S. Ct.
2551, 2565-66 (2019). Under those circumstances, we conclude that the
organizations’ alleged fear of enforcement is objectively reasonable. Cf. Phelps-
Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en banc). Finally, the
injury is fairly traceable to potential legal action by Peco Foods and the Vaughts, and
a favorable decision will likely redress the injury. See Rodgers v. Bryant, 942 F.3d
451, 455 (8th Cir. 2019). Accordingly, the complaint is sufficient to establish a case
or controversy.*
Separate from Article III standing, Peco Foods argues that the district court
lacked jurisdiction because the plaintiffs have no cause of action to enjoin private
parties from commencing a lawsuit. Whether a plaintiff has a cause of action,
*
The dissent concludes in a footnote that the plaintiffs’ claims are not ripe for
review because they rest upon contingent future events. The ripeness doctrine draws
“both from Article III limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.” Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 n.18
(1993). Where a plaintiff alleges a chill on speech, “Article III standing and ripeness
issues . . . ‘boil down to the same question.’” Susan B. Anthony List, 573 U.S. at 157
n.5 (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007)). For
the same reasons that the plaintiffs have adequately alleged Article III standing, the
case is ripe for purposes of Article III. To the extent the dissent suggests that
prudential concerns make the claims nonjusticiable, we disagree. The constitutional
challenges to the Arkansas statute present legal issues that are fit for review, and
delaying judicial review would result in hardship to the plaintiffs. Id. at 167-68.
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however, goes to the merits of a claim and does not implicate the court’s “statutory
or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 89 (1998); see Davis v. Passman, 442 U.S. 228, 239 n.18 (1979).
Having concluded that the plaintiffs have established Article III standing, we will
remand the case for the district court to consider the merits in the first instance.
For these reasons, the judgment of the district court is reversed, and the case is
remanded for further proceedings.
SHEPHERD, Circuit Judge, dissenting.
I disagree that Appellants have alleged an injury in fact sufficient to confer
Article III standing because they are not yet, and may never be, in a position to engage
in the course of conduct actually proscribed by Ark. Code Ann. § 16-118-11 3. “To
establish injury in fact for a First Amendment challenge to a state statute, . . . the
plaintiff needs only to establish that he would like to engage in arguably protected
speech, but that he is chilled from doing so by the existence of the statute.” 281 Care
Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (citation omitted). Such “[s]elf-
censorship can itself constitute injury in fact,” but the plaintiff’s self-censorship must
be based upon more than “mere allegations of a ‘subjective’ chill resulting from a
statute.” Id. (citation omitted). Instead, “[t]he relevant inquiry is whether a party’s
decision to chill his speech in light of the challenged statute was ‘objectively
reasonable,’” which requires the plaintiff to show “an intention to engage in a course
of conduct arguably affected with a constitutional interest, but proscribed by [the]
statute, and [that] there exists a credible threat of prosecution.” Id. (second alteration
in original) (citations omitted). However, the plaintiff suffers no injury when his fears
of prosecution are the product of mere imagination or speculation. See id.
Here, I find that Appellants’ fears of prosecution are currently nothing more
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than the product of their own imagination and thus are insufficient to constitute an
injury in fact. As the district court noted, for Appellants to open themselves up to
civil liability under Ark. Code Ann. § 16-118-113, the following would need to occur:
An investigator hired by ALDF and AE (who they have already chosen)
gets a job at one of [Appellees’] facilities, the investigator performs the
investigation (such as ALDF and AE have successfully done numerous
times in the past), ALDF and AE receive information from the
investigations that they and CBD and FCWA promulgate in the public
interest (information such as has led to prosecutions, food safety recalls,
citation and closures in the past), and [Appellees] file civil actions
pursuant to [the statute] as a result.
R. Doc. 51, at 5. This chain of events, which may or may not occur, is “too
speculative for Article III purposes” which requires the injury to be “certainly
impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (citation
omitted); see also 281 Care Comm., 638 F.3d at 627 (“[P]ersons having no fears
of . . . prosecution except those that are imaginary or speculative, are not to be
accepted as appropriate plaintiffs.” (citation omitted)).
True, a plaintiff need only allege an intention to engage in the course of conduct
rather than actually engaging in such conduct. See Iowa Right to Life Comm., Inc.
v. Tooker, 717 F.3d 576, 604 (8th Cir. 2013). But without the actual ability to engage
in that course of conduct, there can be no credible threat of prosecution. See Zanders
v. Swanson, 573 F.3d 591, 594 (8th Cir. 2009) (“The gravamen of Plaintiffs’ claims
on appeal is whether Plaintiffs satisfy the injury-in-fact requirement for constitutional
standing[—]that is, have they asserted facts that affirmatively and plausibly suggest
that they are indeed subject to a credible threat of prosecution under the statute for
engaging in the conduct for which they invoke constitutional protection.”). Generally,
our cases where we have found that an injury in fact exists involve a plaintiff who is
already in the position to carry out the proscribed conduct and refuses to do so only
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out of fear of being prosecuted under the statute. See generally, e.g., Jones v. Jegley,
947 F.3d 1100 (8th Cir. 2020) (donating to a candidate during “blackout” dates);
Balogh v. Lombardi, 816 F.3d 536 (8th Cir. 2016) (publishing the identities of
individuals who participate in executions); 281 Care Comm., 638 F.3d 621
(publishing false statements about proposed ballot initiatives); St. Paul Area Chamber
of Com. v. Gaertner, 439 F.3d 481 (8th Cir. 2006) (using general treasury funds to
support candidates for office). Instead, Appellants’ claim here is contingent upon
events out of their control: whether Appellees (or another organization with access to
Appellees’ facilities) will hire Appellants’ investigator and whether Appellees are
engaged in the type of practices that Appellants suspect. See Clapper, 568 U.S. at 413
(“In the past, we have been reluctant to endorse standing theories that require
guesswork as to how independent decisionmakers will exercise their judgment.”).1
Appellants argue that executing their plans would expose them to liability, but
the course of conduct proscribed by the statute does not begin until an employee (or
another individual with access to Appellees’ facilities) exceeds his or her authority to
enter a nonpublic area of Appellees’ facilities. See Ark. Code Ann. § 16-118-113(b).
Appellants cannot be chilled from engaging in speech that is not proscribed by the
1
Alternatively, I would find that Appellants have brought their claim
prematurely, i.e., their claim is not ripe. “The touchstone of a ripeness inquiry is
whether the harm asserted has ‘matured enough to warrant judicial intervention.’”
Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (citation omitted); see also Vogel
v. Foth & Van Dyke Assocs., Inc., 266 F.3d 838, 840 (8th Cir. 2001) (“The ripeness
doctrine ‘seeks to prevent courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements.’” (citation omitted)); Johnson v.
Missouri, 142 F.3d 1087, 1090 n.4 (8th Cir. 1998) (“Although we realize that standing
and ripeness are technically different doctrines, they are closely related in that each
focuses on ‘whether the harm asserted has matured sufficiently to warrant judicial
intervention.’” (citation omitted)). Appellants’ current apprehension of a credible
threat of prosecution impermissibly rests upon “contingent future events that may not
occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.
296, 300 (1998) (citation omitted). Accordingly, I would find that their claim,
notwithstanding the absence of an injury, is not yet ripe for adjudication.
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statute. Cf. Zanders, 573 F.3d at 594-95 (holding that plaintiffs had not suffered an
objective chill when the statute did not proscribe plaintiffs’ intended speech). Unlike
the statute in ALDF v. Reynolds that prohibited even accessing an agricultural facility
through fraudulent means, see 297 F. Supp. 3d 901, 909 (S.D. Iowa 2018), nothing in
§ 16-118-113 prohibits Appellants’ investigator from gaining employment, even by
fraudulent means, at Appellees’ facilities. Nor do the provisions Appellants challenge
prevent that investigator from investigating nonpublic areas in Appellees’ facilities.
It is only after the investigator sets up an “unattended camera or electronic
surveillance device . . . to record images or data for an unlawful purpose” that
Appellants would face liability under the statute. See Ark. Code Ann. § 16-118-
113(c)(3). Furthermore, under subsections (c)(1) and (2), Appellants would not face
liability until they use the information or effects “in a manner that damages the
employer.” I do not attempt to draw the exact line that Appellants must approach to
suffer an injury in fact, but at minimum their investigator must “knowingly gain
access to a nonpublic area” of Appellees’ facilities before Appellants can be said to
have been chilled from engaging in the course of conduct proscribed by the statute and
for any credible threat of prosecution to exist.
Nothing in Appellants’ complaint otherwise convinces me that there currently
exists a credible threat of prosecution. While evidence of Appellants’ past
engagement in undercover investigations supports the “concreteness and specificity
of the [Appellants’] claims” by substantiating their intentions to commit such an
investigation, see Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th
Cir. 2006) (en banc), it does not make their current risk of prosecution any more
credible when they currently lack the ability to carry out their intentions due to
circumstances out of their control. Similarly, while DeAnn Vaught’s connection to
the legislation and the alleged “important public interest in understanding how Peco
operates” may give credence to Appellants’ intentions, these allegations do not speak
to whether Appellants are in fact able to engage in their desired First Amendment
activity. And while Appellants allege that Appellees are “likely” engaged in
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inhumane practices, these are not statements of fact upon which this Court can draw
reasonable inferences, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lujan
v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (noting that “each element [of standing]
must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof”), but rather hypotheticals upon which Article III standing cannot be
based, see Zanders, 573 F.3d at 594 (“While general factual allegations of injury
might suffice to establish standing in some instances, general allegations of possible
or potential injury do not.”). Further, as noted above, the statute does not prevent
Appellants from conducting an investigation into Appellees’ facilities
(notwithstanding the use of an unattended camera to record). In my view, this Court
should not accept Appellants’ chain of speculation when Appellants could proceed
with their plan (as allowable under the statute) and establish a credible threat of
prosecution with more concreteness and particularity.
In short, I find that Appellants are not actually exercising self-censorship. At
this time, their ability to engage in their desired speech is inhibited not by the statute,
but instead by a chain of events yet to occur. Under these circumstances, I find that
Appellants are “simply attempting to obtain an advisory opinion or to enlist the court
in a general effort to purge the [Arkansas] statute books of unconstitutional
legislation.” United Food & Com. Workers Int’l Union v. IBP, Inc., 857 F.2d 422,
430 (8th Cir. 1988). Accordingly, I respectfully dissent, and I would affirm the
district court’s dismissal.
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