[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10705 DECEMBER 6, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-01657-CV-T-23-TGW
ADAM ELEND,
JEFF MARKS,
JOE REDNER,
Plaintiffs-Appellants,
versus
W. RALPH BASHAM, in his official capacity as
Director of the U.S. Secret Service,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 6, 2006)
Before CARNES and MARCUS, Circuit Judges, and JORDAN,* District Judge.
MARCUS, Circuit Judge:
*
Honorable Adalberto J. Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
At issue today is whether the district court erred in dismissing a First
Amendment claim for declaratory and injunctive relief on standing and ripeness
grounds. After thorough review, we affirm because the requested relief concerns
wholly prospective conduct for which the details of time, location, audience, and
the nature of the protest activity are utterly lacking. Quite simply, this case is not
justiciable.
I.
The basic facts and procedural history are straightforward. Plaintiffs Adam
Elend, Jeff Marks, and Joe Redner allege that their First Amendment rights were
violated on November 2, 2002, when they attempted to protest at a political rally
attended by President Bush at the University of South Florida (USF) Sun Dome.
Marks and Redner held up placards,1 while Elend videotaped the event and
distributed copies of certain Supreme Court decisions pertaining to the First
Amendment. Plaintiffs began to conduct this activity on a median adjacent to a
1
The placards contained the following three messages:
“Freedom of expression would not truly exist if the right could
only be exercised in an area that a benevolent government has
provided as a safe haven for crackpots.” Tinker v. DesMoines, 393
U.S. 503 [sic]
“Why do you let these crooks fool you?”
“War is good for business. Invest your sons.”
2
parking lot on the USF campus, approximately 150 feet from the nearest Sun
Dome entrance and 30 feet from event attendees who were waiting in line. Soon
after the commencement of this activity, USF police officers told the Plaintiffs that
they would have to stand in the “First Amendment zone,” an area estimated to be
one quarter of a mile away from the Sun Dome. The “protest zone” consisted of a
metal fence patrolled by law enforcement personnel, some of whom were on
horseback. Plaintiffs contend that others carrying placards and signs indicating
support of President George Bush or Governor Jeb Bush were not asked to move
to the protest zone.
Plaintiffs explained to USF officers their belief that the creation of such a
zone unconstitutionally restricted their freedom of speech. At that point, they
were approached by a purported agent of the Sun Dome, Kelly Hickman, who also
requested they move to the protest zone. When Plaintiffs refused to relocate,
Hillsborough County Sheriff’s deputies arrested them for “trespass after warning,”
Fla. Stat. § 810.09 (2006). Plaintiffs were released and the charges dropped after
it was determined that no agent of the Sun Dome had the requisite authority to
provide a warning, as required by state trespass law.2
2
To be convicted under § 810.09(b) of the Florida penal code, an offender must defy an
“order to leave, personally communicated to the offender by the owner of the premises or by an
authorized person. . . .”
3
Invoking federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343,
Plaintiffs commenced this lawsuit in the United States District Court in the Middle
District of Florida in August 2003. The named defendants were Sun Dome, Inc.;
the USF Board of Trustees, “in their representative capacity” for USF; W. Ralph
Basham in his official capacity as Director of the U.S. Secret Service [hereinafter
“Secret Service”]; and Cal Henderson, the Sheriff of Hillsborough County in his
official capacity. Plaintiffs sought damages against Sun Dome and USF, through
42 U.S.C. §§ 1983, 1985, and 1988, for violations of their First and Fourteenth
Amendment rights. Plaintiffs also sought declaratory relief for the allegedly
unconstitutional “acts, practices, and customs” of defendants and an injunction
against “any further constitutional violations.” Their claims against the Secret
Service were made pursuant to 5 U.S.C. § 702, which removes governmental
immunity from suits seeking declaratory or injunctive relief against federal
agencies or employees acting in their official capacity. Notably, Plaintiffs did not
seek any monetary damages from the Secret Service.
Soon thereafter, the Secret Service moved to dismiss the claim for lack of
subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, and, in July 2004, the district court granted the motion because the
complaint failed to “allege that the plaintiffs desire to engage further in the type of
4
activities that are the subject of this action.” Plaintiffs then filed a second verified
amended complaint in response to the district court’s observation that the first
complaint did not contain specific allegations of future injury. In the amended
complaint, Plaintiffs alleged that they “fully intend to peacefully express their
viewpoints in the future in a manner similar to their activities on November 2,
2002 in concert with presidential appearances at the USF Sun Dome and at other
locations around the country.” Verified Second Amended Complaint, para. 46.
The complaint contained no further explication of the time, location, audience, or
nature of protest activity contemplated.
The Secret Service again moved to dismiss on justiciability grounds.
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district
court again dismissed Plaintiffs’ claims against the Secret Service on May 18,
2005, holding that Plaintiffs’ claims that they would protest in a similar manner in
the future were too speculative to satisfy the requirements of both standing and
ripeness. The court reasoned that the Plaintiffs could wait until it became known
when and where they would protest before seeking declaratory and injunctive
relief.
On August 24, 2005, Plaintiffs sought leave to amend the complaint still
again in order to add the Hillsborough County Sheriff’s Department and individual
5
employees, the USF Police Department and individual employees, and Sun Dome
employees “who actively participated in the incident.” Sun Dome and USF moved
for summary judgment on the claims against them. The district court granted
summary judgment for the remaining defendants Sun Dome and USF on the basis
of Eleventh Amendment immunity because they were state actors and because of
the lack of evidence that Sun Dome had any policy or custom that violated the
First Amendment. The district court also determined the claims against Sun Dome
and USF to be nonjusticiable, again on standing and ripeness grounds. Finally, the
district court denied Plaintiffs’ motion for leave to amend because it was untimely,
having been filed after the scheduling order deadline had passed and because no
good cause was shown.
Plaintiffs filed a timely notice of appeal, urging that 1) the district court
erred in dismissing the Secret Service as a defendant on justiciability grounds, and
2) the district court also erred in denying Plaintiffs’ motion for leave to file an
additional amended complaint. Subsequent to the filing of the notice of appeal,
Plaintiffs, Sun Dome, and the USF Board of Trustees agreed to the voluntary
dismissal of the appeal as to all other appellees, leaving the Secret Service as the
sole appellee and only the first issue for us to resolve.
II.
6
We review de novo questions concerning our subject matter jurisdiction,
including standing and ripeness. See Fla. Pub. Interest Research Group Citizen
Lobby, Inc. v. EPA, 386 F.3d 1070, 1082 (11th Cir. 2004); London v. Wal-Mart
Stores, Inc., 340 F.3d 1246, 1251 (11th Cir. 2003).
Standing and ripeness present the threshold jurisdictional question of
whether a court may consider the merits of a dispute. See Bochese v. Town of
Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (“In the absence of standing, a
court is not free to opine in an advisory capacity about the merits of a plaintiff's
claims.”); Nat'l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005)
(“Strict application of the ripeness doctrine prevents federal courts from rendering
impermissible advisory opinions and wasting resources through review of
potential or abstract disputes.”). Both standing and ripeness originate from the
Constitution’s Article III requirement that the jurisdiction of the federal courts be
limited to actual cases and controversies. Flast v. Cohen, 392 U.S. 83, 94-101
(1968) (discussing the origins of the standing doctrine); Abbott Labs. v. Gardner,
387 U.S. 136, 148-149 (1967) (discussing the origins of the ripeness doctrine).
This jurisdictional limitation “defines with respect to the Judicial Branch the idea
of separation of powers on which the Federal Government is founded.” Allen v.
Wright, 468 U.S. 737, 750 (1984); see also Socialist Workers Party v. Leahy, 145
7
F.3d 1240, 1244 (11th Cir. 1998).
This case presents an instance of the doctrinal overlap between standing and
ripeness analysis. “Few courts draw meaningful distinctions between the two
doctrines; hence, this aspect of justiciability is one of the most confused areas of
the law.” Wilderness Soc'y v. Alcock, 83 F.3d 386, 389-90 (11th Cir. 1996). The
distinction traditionally made, however, is that standing deals with which party
can appropriately bring suit, while ripeness relates to the timing of the suit. See
id. at 390. Thus, there may be standing without ripeness, as when a party alleges a
concrete injury but has not exhausted prescribed administrative remedies, see, e.g.,
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938); or there may
be ripeness without standing, as when an injury is fully formed, but the remedy
sought would simply not redress the harm, see, e.g., Linda R. S. v. Richard D., 410
U.S. 614, 617-18 (1973). There may also be ripeness without standing when an
injury is fully formed but the plaintiff simply asserts the claims of third parties.
See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 151 (1990). But in cases
involving pre-enforcement review, the standing and ripeness inquiries may tend to
converge. See, e.g., Socialist Workers Party, 145 F.3d at 1244-1245; ACLU v.
Fla. Bar, 999 F.2d 1486, 1490 (11th Cir. 1993). This is because claims for pre-
enforcement review involve the possibility of wholly prospective future injury, not
8
a prayer for relief from damages already sustained.
It is by now axiomatic that standing requires the plaintiff to demonstrate
injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992). It is the first element, injury in fact, that most often
converges with ripeness. If an action for prospective relief is not ripe because the
factual predicate for the injury has not fully materialized, then it generally will not
contain a concrete injury requisite for standing. In this case the Plaintiffs’ suit
against the Secret Service establishes neither standing nor ripeness.
Despite the conspicuous overlap of the two doctrines, we discuss standing
and ripeness separately. But whether this case is examined through the prism of
standing or ripeness, it can be distilled to a single question: whether the Plaintiffs
have sufficiently alleged an imminent and concrete threat of future injury by
stating their intention to protest at an unspecified, prospective event supervised by
the Secret Service? The answer is plainly in the negative.
A.
The standing inquiry “requires careful judicial examination of a complaint’s
allegations to ascertain whether the particular plaintiff is entitled to an
adjudication of the particular claims asserted.” Allen, 468 U.S. at 752; Warth v.
Seldin, 422 U.S. 490, 518 (1975) (“It is the responsibility of the complainant
9
clearly to allege facts demonstrating that he is a proper party to invoke judicial
resolution of the dispute and the exercise of the court’s remedial powers.”). It is
not enough that “the [plaintiff]’s complaint sets forth facts from which we could
imagine an injury sufficient to satisfy Article III's standing requirements.”
Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm’n, 226 F.3d 1226,
1229 (11th Cir. 2000) (citations omitted). Indeed, “we should not speculate
concerning the existence of standing, nor should we imagine or piece together an
injury sufficient to give plaintiff standing when it has demonstrated none. . . . If
the plaintiff fails to meet its burden, this court lacks the power to create
jurisdiction by embellishing a deficient allegation of injury.” Id. at 1229-30.
From these principles flow the two strands of standing analysis: a court
must take into account “both constitutional limitations on federal-court
jurisdiction and prudential limitations on its exercise.” Warth, 422 U.S. at 498
(citing Barrows v. Jackson, 346 U.S. 249, 255-56 (1953)). The prudential
requirements for standing -- that a plaintiff cannot raise the claims of third parties;
cannot claim standing based on a generalized grievance; and must raise a claim
within the zone of interest covered by a statutory conferral of standing, Cone
Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1203-10 (11th Cir. 1991) -- are not
in dispute in this case. The constitutional requirements of standing are that “[1]
10
the plaintiff must have suffered an ‘injury in fact’ . . . . [2] there must be a causal
connection between the injury and the conduct complained of . . . . and [3] it must
be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by
a favorable decision.’” Lujan, 504 U.S. at 560-61 (citing Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 38, 41-43 (1976)). The plaintiff bears the burden of
establishing each of these elements. See Bennett v. Spear, 520 U.S. 154, 167-68
(1997). Here, the causation requirement is satisfied because Plaintiffs’ alleged
First Amendment injury is fairly traceable to the purported Secret Service practice
or policy. As for the requirements of injury and redressability, however,
Plaintiffs’ complaint is undeniably deficient.
In their complaint, Plaintiffs allege that the “Secret Service [has] previously
instituted a policy and practice of forcing ‘demonstrators’ or selected political
speakers (specifically selected on the basis of the content of their message) to
constrain themselves to other ‘Protest Zones,’” which “have been widely utilized
as a reflection of their custom and practice of implementing constitutionally
impermissible restrictions on protected political speech at virtually every domestic
presidential appearance.” Putting aside whether such a policy actually exists, we
examine whether Plaintiffs’ claimed future injury is imminent and concrete
enough for judicial consideration. As we have noted already, the Plaintiffs failed
11
to characterize their future injury in any way, other than to say at the highest order
of abstraction that they “fully intend to peacefully express their viewpoints in the
future in a manner similar to their activities on November 2, 2002 in concert with
presidential appearances at the USF Sun Dome and at other locations around the
country.” Given the entirely speculative inquiry of whether Plaintiffs will protest
again and -- even assuming that such a protest will take place -- the unspecified
details of where, at what type of event, with what number of people, and posing
what kind of security risk, we are being asked to perform the judicial equivalent of
shooting blanks in the night. Consistent with our obligation to adjudicate only a
live case or controversy, we refuse to pull the trigger.
A plaintiff is deemed to have suffered an injury in fact -- “an invasion of a
judicially cognizable interest” -- when he demonstrates a harm that is “(a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical.” 31
Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003).
Plaintiffs’ complaint can be separated into two purported injuries. First, the
protest zone was allegedly located at a distance too far from the event itself for
Plaintiffs to effectively exercise their First Amendment rights. Second, the
Plaintiffs claimed they were discriminated against based on the content of their
12
message3 by being sent to a special protest zone while others with signs favorable
to President Bush were not treated similarly.
The content-based discrimination alleged, if true, could constitute a breach
of First Amendment protections. “[T]he First Amendment has its fullest and most
urgent application to speech uttered during a campaign for political office.” Eu v.
San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 223 (1989) (internal
quotation marks omitted). For elections to occur with due respect for the
democratic process, competing political views cannot be asphyxiated by locating
their expression at a distance so far as to render them meaningless, or by treating
one viewpoint less favorably than another.
But a prayer for injunctive and declaratory relief requires an assessment, at
this stage in the proceeding, of whether the plaintiff has sufficiently shown a real
and immediate threat of future harm. See City of Los Angeles v. Lyons, 461 U.S.
95, 105 (1983) (where a plaintiff seeks prospective relief, he must demonstrate a
“real and immediate threat” of future injury); Cone Corp., 921 F.2d at 1203
3
Although Plaintiffs characterize their injury as content-based discrimination, the facts
they allege may more aptly be described as viewpoint-based discrimination. Plaintiffs contend
they were treated differently based on expressing disapproval of the President, not based on
expressing any political message at all. But in truth, it makes little practical difference here
whether the First Amendment claims are labeled content-based or viewpoint-based since
analytically both are treated using strict scrutiny. Burson v. Freeman, 504 U.S. 191, 197 (1992)
(plurality opinion) (“The First Amendment’s hostility to content-based regulation extends not
only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an
entire topic.”). Regardless, we cannot reach the merits of the claim.
13
(same); Johnson v. Bd. of Regents, 263 F.3d 1234, 1265 (11th Cir. 2001) (same);
Wooden v. Bd. of Regents, 247 F.3d 1262, 1284 (11th Cir. 2001) (same). The
binding precedent in this circuit is clear that for an injury to suffice for prospective
relief, it must be imminent. See 31 Foster Children, 329 F.3d at 1266-67 (noting
that standing for declaratory or injunctive relief requires that future injury
“proceed with a high degree of immediacy”); Bowen v. First Family Fin. Servs.,
233 F.3d 1331, 1340 (11th Cir. 2000) (observing that a “perhaps or maybe
chance” of an injury occurring is not enough for standing). Because of the
inquiry’s focus on wholly prospective conduct, it follows that “[p]ast exposure to
illegal conduct does not in itself show a present case or controversy regarding
injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”
Lyons, 461 U.S. at 102 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96
(1974)).
Viewed in this light, the Plaintiffs’ allegations are insufficient. When
standing is questioned at the pleading stage, as it is here, “general factual
allegations of injury resulting from the defendant’s conduct may suffice, for on a
motion to dismiss we presume that general allegations embrace those specific facts
that are necessary to support the claim.” Lujan, 504 U.S. at 561 (citations and
internal marks omitted). We accept as true all material allegations contained in the
14
complaint and construe the complaint in a light most favorable to the complaining
party. Warth, 422 U.S. at 501. Moreover, in the context of a Rule 12(b)(1)
challenge to standing, “we are obliged to consider not only the pleadings, but to
examine the record as a whole to determine whether we are empowered to
adjudicate the matter at hand.” Nat'l Parks Conservation Ass'n v. Norton, 324
F.3d 1229, 1242 (11th Cir. 2003).
The barest examination of several leading standing cases in this circuit
illustrates the pleading deficiencies in this complaint. Where we have found a
sufficient imminence of future harm based on a past injury, the plaintiff has
alleged with particularity that a future injury would likely occur in substantially
the same manner as the previous injury. Thus, for example, in 31 Foster Children,
329 F.3d at 1267, a panel of this Court found standing for children who actually
were in the custody of the foster care system involuntarily, but no standing for
children who had run away and were no longer in the defendants’ physical custody
because the prospect of their returning to foster care was too speculative. In
Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984), a mentally ill plaintiff, not
incarcerated at the time of the suit, sought to enjoin the state from detaining
individuals in county jails pending civil commitment hearings. He was found to
have standing because the court believed his mental problems were sufficiently
15
likely to recur and that “there [was] every indication that [he] could continue to be
the subject of [future] involuntary commitment petitions.” Id. at 1456. Plaintiff
was “at risk of being detained in jail not because of volitional acts on his part but
because his mental condition would prompt his family, as it [had] done on two
previous occasions, to petition for involuntary commitment.” Id. at 1457 n.7. And
in Church v. City of Huntsville, 30 F.3d 1332, 1339 (11th Cir. 1994), plaintiffs
had standing to pursue a preliminary injunction, which would enjoin the City of
Huntsville from arresting, harassing, or removing the plaintiffs because of their
homeless status. Pleading a complaint for prospective relief does not require
oracular vision -- this Court did not know exactly when the plaintiff in Lynch
would be incarcerated again or when the plaintiffs in Church would be harassed in
the future. But the claims in those cases indicated a credible threat that the injury
would be repeated imminently to justify declaratory or injunctive relief.
Even the precedents that Plaintiffs rely on -- Bischoff v. Osceola County,
222 F.3d 874 (11th Cir. 2000) and Florida Public Interest Research Group Citizens
Lobby v. EPA, 386 F.3d 1070 (11th Cir. 2004) (“Florida PIRG”) -- are inapposite.
In Bischoff, the district court raised the issue of standing sua sponte in response to
the parties’ cross motions for summary judgment. The plaintiffs unambiguously
alleged that they were told by officers to stop distributing handbills at a clearly
16
identified intersection, that they were threatened with arrest and their colleagues
were in fact arrested at that precise location, and that they intended to return to the
same spot to continue handbilling. Bischoff, 222 F.3d at 877.
Florida PIRG is even less on point because it involved a concrete, ongoing
injury. In that case, the plaintiffs alleged an injury involving their loss of
enjoyment of Florida’s waters because of overpollution. “[P]laintiffs have
provided detailed affidavits averring how they are particularly injured by the
EPA’s failure . . . .” Florida PIRG, 386 F.3d at 1083. The injury for the plaintiffs
in Florida PIRG began when the waters became overpolluted and would not cease
until the water quality improved, allowing them to resume the activities on the
water that they had engaged in before.
In sharp contrast, the injury alleged in this case remains wholly inchoate.
Unlike in Bischoff, where it was known exactly where the activists intended to
demonstrate and precisely which local ordinance was invoked to stop them,
Plaintiffs’ intention in this case to protest “in concert with presidential
appearances at the USF Sun Dome and at other locations around the country” fails
to provide any limitation on the universe of possibilities of when or where or how
such a protest might occur. Other than the one instance in November 2002, we are
not even given a description of Plaintiffs’ past conduct from which to infer that
17
they might act in a similar manner in the future. See Lynch, 744 F.2d at 1456
(“Past wrongs do constitute evidence bearing on whether there is a real and
immediate threat of repeated injury which could be averted by the issuing of an
injunction.”).
Moreover, it is entirely conjectural that President Bush would return to
speak at a political rally at the Sun Dome. In fact, we have no indication that he
has done so again since November 2002 despite numerous presidential visits to
Florida. Nor is it even remotely permissible to presume future injury from
Plaintiffs’ intention to protest “at other locations around the country.” To find that
this somehow constitutes “real and immediate” injury sufficient to confer standing
would eviscerate the meaning of both words.
Indeed, the Plaintiffs’ avowed intention to protest in a similar manner in the
future is akin to the plaintiff in Lujan who declared, “I intend to go back to Sri
Lanka [to observe endangered species],” but confessed that she had no current
plans: “I don't know [when].” Lujan, 504 U.S. at 564. “Such ‘some day’ intentions
-- without any description of concrete plans, or indeed even any specification of
when the some day will be -- do not support a finding of the ‘actual or imminent’
injury that our cases require.” Id. In the four years since Plaintiffs’ alleged First
Amendment violation, they have not asserted that they protested President Bush at
18
the Sun Dome or any other venue, for that matter. The entirely speculative nature
of the “future protests” would render wholly advisory any prospective relief.
B.
Plaintiffs also fail the standing requirements because the putative injury
lacks redressability. First, the inchoate nature of the claim provides an
insurmountable obstacle for a court to fashion an injunction that accomplishes
anything beyond abstractly commanding the Secret Service to obey the First
Amendment. It is well-established in this circuit that an injunction demanding that
a party do nothing more specific than “obey the law” is impermissible. See Burton
v. City of Belle Glade, 178 F.3d 1175, 1201 (11th Cir. 1999) (“As this injunction
would do no more than instruct the City to ‘obey the law,’ we believe that it would
not satisfy the specificity requirements of [Federal Rule of Civil Procedure] 65(d)
and that it would be incapable of enforcement.”). This would be the case if we
accepted Plaintiffs’ suggestion, made during a hearing before the district court,
that one possible injunction could read: “the Secret Service shall ensure there’s no
violation of the First Amendment.” Such an injunction would merely command
the Secret Service to obey the law. Nor would it be plausible for a court to craft an
injunction saying, for example, that a protest zone must be located no farther than
50 feet or 100 feet from an event entrance. A one-size-fits-all injunction would
19
serve no one’s interests because, depending on the circumstances, it still could
unconstitutionally muffle expression while at the same time compromising the
security of the President.
Second, promulgating an order in the face of such overwhelming ambiguity
would amount to an abdication of our duty to only adjudicate actual cases or
controversies. A proper deference to the Constitution’s separation of powers
means that a court may only reach the merits of those cases that present concrete
and immediate injury. It seems to us self-evident that a court would be unable to
conduct the First Amendment analysis required without knowing anything more
than vague generalities about future protests. Assuming that Plaintiffs were in fact
subject to content-based discrimination during their protest based on a Secret
Service policy, that policy would be reviewed using strict scrutiny. See Burson v.
Freeman, 504 U.S. 191, 197-98 (1992) (plurality opinion). Undeniably, strict
scrutiny analysis requires a court to examine the context of the claim to determine
if the government policy is necessary to serve a compelling interest in proscribing
such speech and if the regulation is narrowly tailored to serve the purported
government interest. See id. at 198; accord Bd. of Airport Comm'rs of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987); Cornelius v. NAACP
Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985); United States v. Grace,
20
461 U.S. 171, 177 (1983). At times this will require the court to weigh “truly
difficult issues involving the First Amendment,” Burson, 504 U.S. at 198, in
deciding whether a regulation contravenes the Constitution. Context is critical.
What is necessary to enable the Secret Service to provide adequate security at any
event will vary based on the size of the audience; the existence of any threat; the
kind of venue; and the type of event -- all things which Plaintiffs have not alleged
with any particularity. Cases cannot be decided in a vacuum. At a bare minimum,
standing requires that a plaintiff provide a concrete frame of reference for
evaluating an alleged future harm.
To be clear, our ruling today does not set the bar insuperably high for
prospective relief. We have recognized before that “[t]he injury requirement is
most loosely applied -- particularly in terms of how directly the injury must result
from the challenged governmental action -- where first amendment rights are
involved, because of the fear that free speech will be chilled even before the law,
regulation, or policy is enforced.” Hallandale Prof’l Fire Fighters Local 2238 v.
City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991). But for a case to be
entitled to an adjudication on the merits, there must be a substantial indication that
the injury will occur and, if so, what shape that injury may take. We are provided
neither.
21
III.
The ripeness problem in this case is much the same as standing. In essence,
this doctrine deals with when a party can seek pre-enforcement review: “whether
there is sufficient injury to meet Article III's requirement of a case or controversy
and, if so, whether the claim is sufficiently mature, and the issues sufficiently
defined and concrete, to permit effective decision-making by the court.” Digital
Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997) (quoting
Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir.1995)). Ripeness analysis involves
the evaluation of two factors: the hardship that a plaintiff might suffer without
court redress and the fitness of the case for judicial decision. Abbott Labs. v.
Gardner, 387 U.S. 136, 149 (1967).
Hardship can sometimes be established if a plaintiff demonstrates that he
would have to choose between violating an allegedly unconstitutional statute or
regulation and risking criminal or severe civil sanctions. See Steffel v. Thompson,
415 U.S. 452, 462 (1974) (holding, in a case where prosecution was threatened but
not pending, that to require arrest before issuing declaratory relief would place
“the hapless plaintiff between the Scylla of intentionally flouting state law and the
Charybdis of forgoing what he believes to be constitutionally protected activity in
order to avoid becoming enmeshed in a criminal proceeding”). In such a case,
22
however, plaintiffs must still demonstrate a “credible threat of prosecution.”
Babbitt v. UFW Nat'l Union, 442 U.S. 289, 298 (1979). In Steffel, the Court noted
that there was a credible threat of prosecution because the plaintiff had twice been
warned that he could be arrested for handbilling outside a mall and his handbilling
companion was in fact arrested. Steffel, 415 U.S. at 459.
In this case, however, it would strain credulity to say that there is a credible
threat that Plaintiffs’ First Amendment rights will be violated in the future. Again,
we don’t know when they will protest, we don’t know where they will protest, and
we don’t know how they will protest.
The injunctive and declaratory relief sought for the allegedly
unconstitutional protest zones would seem especially unfit for judicial decision on
ripeness grounds too, because, as we have noted already, that analysis depends so
critically on the location and circumstances of the protest zone. Cf. Cal. Bankers
Assoc. v. Schultz, 416 U.S. 21, 56 (1974) (“This Court, in the absence of a
concrete fact situation in which competing associational and governmental
interests can be weighed, is simply not in a position to determine whether an effort
to compel disclosure of such records would or would not be barred . . . .”). See
also United Pub. Workers v. Mitchell, 330 U.S. 75 (1947).
In saying that Plaintiffs lack standing and ripeness to prosecute their claims
23
today, we do not blithely discard the First Amendment rights that underpin their
claims. The opportunity to petition the President of the United States or other
high-ranking government officials for redress of grievances has long served as a
bedrock right enshrined in the First Amendment. Rules or regulations that stifle
speech based on the content of the message are the essence of what is proscribed
by free speech jurisprudence. See, e.g., Police Dept. v. Mosley, 408 U.S. 92
(1972); Kingsley Int’l Pictures Corp. v. Regents, 360 U.S. 684 (1959). But as we
recognize such basic freedoms, so too are we obliged to acknowledge the basic
limits on our jurisdiction in the constitutional scheme. When a case involving
prospective relief provides a court with no factual assurance that future injury is
likely and no clues about its contours should such an injury arise, we are left with
only the faintest picture of a possible constitutional transgression occurring
someday, somewhere in this country. Such a claim is not fit for adjudication by
this Court.
AFFIRMED.
24
Adam Elend v. Sun Dome, Inc.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-12-06
Citations: 471 F.3d 1199
Copy Citations