United States Court of Appeals
For the First Circuit
No. 04-2673
GRACE C. OSEDIACZ,
Plaintiff, Appellee,
v.
CITY OF CRANSTON, ETC., ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Tom Marcelle, with whom Steven Frias and Michael Glucksman,
City Solicitor, were on brief, for appellants.
Michael T. Eskey, with whom Amato A. DeLuca, Miriam Weizenbaum
and DeLuca & Weizenbaum Ltd. were on brief, for appellee.
July 6, 2005
SELYA, Circuit Judge. This appeal has its genesis in a
decision by Cranston, Rhode Island (the City) to institute a policy
(the Policy) that allowed private parties to erect holiday displays
on a prime piece of public property, subject to certain
administrative requirements and the approval of the mayor. A
number of individuals and groups seized the opportunity.
Collectively, they erected a myrioramic array of exhibits, some of
which (such as a nativity scene) were overtly religious. A citizen
of Cranston took umbrage and sued for declaratory and injunctive
relief.
The district court rebuffed the plaintiff's Establishment
Clause challenge but found her Free Speech Clause claim meritorious
and enjoined continued use of the Policy on the ground that it gave
the mayor unconstrained authority to approve (and, by extension, to
disapprove) proposed displays. Osediacz v. City of Cranston, 344
F. Supp. 2d 799, 814 (D.R.I. 2004). The City appeals. Concluding,
as we do, that the plaintiff lacks standing to mount a challenge
under the Free Speech Clause, we reverse.
I.
Background
The facts are straightforward. As the 2003 holiday
season approached, the City issued the Policy, which designated the
south lawn of City Hall as a limited public forum for the display
of holiday-themed and seasonal decorations. The Policy was
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designed to continue in force from year to year. It permitted the
public to erect "appropriate" displays between December 5 and
January 1, defined "appropriate" as "being suitable and proper for
the holiday occasion," and explicitly prohibited any display that
would "shock the consciousness [sic] of the community." The Policy
required any person wishing to erect an exhibit to provide his or
her name, address, and telephone number, a brief written
description of the exhibit, and a signed release absolving the City
of any liability for damage to the exhibit. Of particular
pertinence here, the Policy proclaimed that the mayor or his
designee "must approve" all displays.
In short order, several exhibits appeared on the south
lawn. These included a large menorah accompanied by a sign
conveying wishes for "a Happy Chanukah"; a near-life-size nativity
scene; an inflatable seven-foot-tall snowman and a similarly sized
Santa Claus; a huge holographic angel; a train of fifteen pink
flamingos with Santa Claus hats; and a sign that read "Happy
Holidays from the Teamsters Union." Faced with this embarrassment
of riches, the City determined on December 21, 2003 that the south
lawn could contain nothing more and barred further entries.
On December 22, 2003, plaintiff-appellee Grace Osediacz
filed suit in the United States District Court for the District of
Rhode Island. She asserted that the display of religious symbols
on the City Hall lawn violated the Establishment Clause. She also
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challenged the Policy as contravening the Constitution's
Establishment, Free Speech, and Due Process Clauses.
After a brief period of discovery, the City moved for
summary judgment with respect to the Establishment Clause claims.
The plaintiff opposed the motion. The district court expanded the
summary judgment battleground to include the free speech claim and
solicited additional affidavits and briefs. See Berkovitz v. Home
Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996) (discussing a
district court's authority to grant sua sponte summary judgment).
In her main affidavit, the plaintiff portrayed herself as
a Cranston resident and taxpayer who regularly conducts business at
City Hall. She stated that she found the spectacle of a menorah
and creche on municipal property an inappropriate governmental
endorsement of religion. She did not aver, however, that she
herself harbored any interest in erecting a display.
The district court ruled that the tableau on the south
lawn of City Hall, though it included religious symbols, was
nothing more than "a celebration of the holiday in both its
religious and secular senses." Osediacz, 344 F. Supp. 2d at 807
(citing Lynch v. Donnelly, 465 U.S. 668, 680-81 (1984)). The court
further ruled that the displays had no religious purpose and that
they did not have the effect of endorsing religion. Id. at 807-10
(citing County of Allegheny v. ACLU, 492 U.S. 573, 579-82 (1989)).
Consequently, the court granted partial summary judgment in the
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City's favor on the plaintiff's flagship Establishment Clause
claim.1 See id. at 815.
The court was less sanguine about the Policy's free
speech implications. After determining that the plaintiff had
standing to raise a free speech claim, id. at 811-12, the court
noted that the Policy, on its face, provided no meaningful
standards that in any way constrained the mayor's authority to
approve or disapprove displays, id. at 812-13. Nor was there a
sufficient history of past practice from which such standards could
be inferred. Id. at 813-14. Because the Policy vested essentially
standardless discretion in the mayor to grant or withhold approval
for displays at his whim, the Policy constituted a prior restraint
on speech and, therefore, transgressed the Free Speech Clause of
the First Amendment. Id. at 814 (citing City of Lakewood v. Plain
Dealer Publ'g Co., 486 U.S. 750, 772 (1988)). The court granted
partial summary judgment for the plaintiff on that claim, id., and
accordingly, declined to address her due process claim, id. at 801
n.2.
The City appeals from the district court's resolution of
the free speech claim. We have jurisdiction under 28 U.S.C. §
1291. Since the district court decided this case at the summary
1
The plaintiff has not appealed from this ukase. Accordingly,
that portion of the judgment is not before us and we eschew further
discussion of it.
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judgment stage, we undertake de novo review. Houlton Citizens'
Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).
II.
Analysis
Federal courts are courts of limited jurisdiction. Rhode
Island v. EPA, 378 F.3d 19, 22 (1st Cir. 2004). They are not
empowered to offer advisory opinions. United States v. Green, 407
F.3d 434, 444 (1st Cir. 2005). Thus, standing to sue is an
indispensable component of federal court jurisdiction. As the
Supreme Court has explained:
[T]he case or controversy requirement defines
with respect to the Judicial Branch the idea
of separation of powers on which the Federal
Government is founded. The several doctrines
that have grown up to elaborate that
requirement are founded in concern about the
proper — and properly limited — role of the
courts in a democratic society.
Allen v. Wright, 468 U.S. 737, 750 (1984) (citation and internal
quotation marks omitted).
In this instance, our discussion begins and ends with the
standing issue. Standing doctrine comprises a mix of
constitutional and prudential criteria. See Elk Grove Unified Sch.
Dist. v. Newdow, 124 S. Ct. 2301, 2308 (2004); N.H. Right to Life
PAC v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996). The constitutional
core of standing requires that a plaintiff make a tripartite
showing: she must demonstrate that she has suffered an injury in
fact, that her injury is fairly traceable to the disputed conduct,
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and that the relief sought promises to redress the injury
sustained. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992); Gardner, 99 F.3d at 13. The party seeking to invoke the
federal court's jurisdiction — normally, the plaintiff — bears the
burden of pleading and proof on each step of the standing pavane.
Lujan, 504 U.S. at 561.
In keeping with these important concepts, the Supreme
Court has embellished the constitutional requirements attendant to
standing with an array of prudential monitions. The prudential
aspects of standing include "the general prohibition on a
litigant's raising another person's legal rights, the rule barring
adjudication of generalized grievances more appropriately addressed
in the representative branches, and the requirement that a
plaintiff's complaint fall within the zone of interests protected
by the law invoked." Allen, 468 U.S. at 751.
In this case, the City challenges the plaintiff's
standing. It reasons that because the plaintiff never had any
interest in erecting a display, there was no chance that she would
be subjected to the vagaries of the approval process and, hence,
she has failed to show a sufficiently personalized injury emanating
from the Policy. To bolster this reasoning, the City relies
heavily on Laird v. Tatum, 408 U.S. 1 (1972), in which the Supreme
Court wrote that if the complaining parties "themselves are not
chilled, but seek only to represent those millions whom they
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believe are so chilled, [they] clearly lack that personal stake in
the outcome of the controversy essential to standing." Id. at 13
n.7 (citations and internal quotation marks omitted).
The plaintiff attempts to blunt the force of this
reasoning by touting a line of cases holding that traditional
standing requirements are relaxed in the precincts patrolled by the
First Amendment. See, e.g., Broderick v. Oklahoma, 413 U.S. 601,
612 (1973) (holding that when First Amendment concerns are at
stake, a plaintiff may "challenge a statute not because [her] own
rights are violated, but because . . . the statute's very existence
may cause others not before the court to refrain from
constitutionally protected speech or expression"). The district
court accepted this distinction. See Osediacz, 344 F. Supp. 2d at
812. We do not.
We think that this clash between competing lines of
authority may readily be resolved by sorting out some basic
concepts. Standing is not a unitary concept but, rather, a group
of doctrines collectively intended to ensure that the federal
courts adjudicate only those actual cases or controversies that
fall within the purview of Article III of the Constitution. See
Newdow, 124 S. Ct. at 2308 (describing standing doctrine as "a
series of rules"). When certain types of facial challenges to
statutes, ordinances, regulations, or governmental policies are
premised on First Amendment grounds, they invite a lowering of
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conventional standing barriers because the traditional jus tertii
ban on litigating the rights of third parties is arguably
inapplicable.2 See Forsyth County v. Nationalist Movement, 505
U.S. 123, 129 (1992) (explaining that third-party standing concerns
will not pretermit a facial challenge to a statute on First
Amendment grounds). Thus, the lowering of the bar intersects with
standing doctrine only on the issue of third-party standing.
That distinction demonstrates why City of Lakewood and
similar cases are not persuasive here. Historically, facial
challenges were disfavored, in part because they were thought to
require the challenger to raise the rights of others. See, e.g.,
United States v. Raines, 362 U.S. 17, 20-22 (1960). Under this
traditional approach, the normal jus tertii rules made it nearly
impossible to have a court declare a statute facially
unconstitutional; after all, an individual litigant would have
standing to object to it only as applied to her situation. See
Richard H. Fallon, As-Applied and Facial Challenges and Third Party
Standing, 113 Harv. L. Rev. 1321, 1322 (2000). As a corollary, a
plaintiff who had not herself been subjected to an unconstitutional
2
Even this limited relaxation of conventional standing
requirements is controversial. See, e.g., Richard H. Fallon, Jr.,
As-Applied and Facial Challenges and Third Party Standing, 113
Harv. L. Rev. 1321, 1359-64 (2000) (arguing that the Supreme
Court's permissive approach to facial challenges in the First
Amendment context has little to do with third-party standing but,
rather, reflects a substantive concern that facially invalid
statutes harm the plaintiff herself, regardless of whether a more
narrowly drawn statute could regulate her conduct).
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exercise of power could not challenge the offending statute at all.
See id.
The City of Lakewood Court recognized that as long as no
one was denied a permit, no one would have standing to mount a
challenge — yet the chilling effect of the unconstitutional grant
of standardless discretion would remain undiminished. Id. at 757-
58. To correct this problem, the Court loosened the customary
prudential limits that constrain a plaintiff's standing with
respect to facial challenges brought against statutes that vest
unbridled discretion in public officials to censor speech. See id.
at 759. Confronted with a facial challenge to a licencing statute,
it ruled that in the case of "a licensing statute [that] allegedly
vests unbridled discretion in a government official over whether to
permit or deny expressive activity," a plaintiff "who is subject to
the law may challenge it facially without the necessity of first
applying for, and being denied, a license." 468 U.S. at 755-56.
The Court did not, however, carve out any exception to
the core requirements of constitutional standing. These
requirements, including the bedrock requirement that the plaintiff
herself have suffered an injury in fact, were left intact.
Importantly, the Court recognized that the theoretical risk of
self-censorship inherent in statutes conferring standardless
discretion on public officials was not itself a sufficient injury
within the meaning of Article III. Id. at 759. Indeed, the
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Justices stressed that a plaintiff, as a prerequisite to suit, had
to show that the law that she aspired to challenge "pose[d] a real
and substantial threat [to] identified censorship risks." Id.
(emphasis supplied); see also Tatum, 408 U.S. at 13-14 & n.7
(explaining that even in First Amendment cases, courts must guard
against rendering advisory opinions).
Virtually by definition, the threat of self-censorship
cannot exist if a party has no intention either of speaking or
otherwise exposing herself to the vagaries of a standardless
licensing policy. It is, therefore, not surprising that in every
case the plaintiff cites, the party mounting a facial challenge at
the very least desired or intended to undertake activity within the
compass of the challenged statute. See, e.g., Forsyth County, 505
U.S. at 127; City of Lakewood, 486 U.S. at 753-54. Consequently,
those cases cannot be read to reduce to a state of irrelevancy the
constitutionally mandated requirement that a plaintiff must show an
injury in fact.
The short of it is that were the instant plaintiff armed
with constitutionally sufficient standing credentials, she could
prevail on an issue of this sort merely by showing that the Policy,
by vesting standardless discretion in the mayor, constitutes an
impermissible prior restraint. See, e.g., Freedman v. Maryland,
380 U.S. 51, 56 (1965). In that event, the plaintiff could press
the rights of others; she would not have to make the additional
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(prudential) showing that the mayor could not, consistent with the
Free Speech Clause, deny her permission to erect a particular
display. The net result, then, is that even though prudential
standing concerns are relaxed in certain facial challenges
implicating the First Amendment, a litigant still must demonstrate
that she satisfies the constitutional minima essential to establish
standing.
Seen in this light, the question reduces to whether the
plaintiff has been injured within the meaning of Article III.
Here, that inquiry is informed by what the plaintiff does not
assert. She does not assert that she herself unsuccessfully
attempted to place her handiwork on the south lawn of City Hall.
She does not assert that she has any interest in erecting a
display, but fears that her expression will be subjugated to a
standardless approval process. She does not assert that the Policy
takes away her appetite for expressing herself or chills her speech
in any cognizable way. Her only claim of injury is that, as a
resident and taxpayer, she is subject to the effects of the Policy
and that, by conferring unbridled discretion on the mayor to
approve or reject displays, the Policy has a chilling effect on the
speech of others.
This is not a sufficient predicate to allow this suit to
go forward. It is apodictic that a mere interest in seeing the
government turn square corners is not the kind of particularized
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interest that can satisfy the most basic constitutional
prerequisite for standing. See Fed. Election Comm'n v. Akins, 524
U.S. 11, 23-24 (1998) (collecting cases). It has been equally
clear for more than three-quarters of a century that, with certain
narrow exceptions not implicated here, taxpayers, as such, lack
generalized standing to challenge the constitutionality of
governmental action. See Frothingham v. Mellon, 262 U.S. 447, 487
(1923). The plaintiff's standing, therefore, cannot be grounded on
the mere fact that she pays taxes to a municipality which, in turn,
expends funds to further an unconstitutional exercise of government
power. See Valley Forge Christian Coll. v. Ams. United for
Separation of Church and State, 454 U.S. 464, 477 (1982).
In the last analysis, all that remains is the question of
whether the risk that the Policy will have a chilling effect on the
speech of others is a sufficient injury to the plaintiff to meet
the first prong of the constitutional test for standing. The
Supreme Court answered that question in Tatum, a case that involved
a challenge to the scope of domestic intelligence gathering by the
United States Army. There, the plaintiffs alleged that the Army
was spying on civilians whom the Army believed might engage in
civil disobedience and that such systematic surveillance chilled
speech by deterring citizens from indulging in expression that
might draw the Army's ire. Tatum, 408 U.S. at 9-10.
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The Tatum Court held that the plaintiffs, who had not
themselves been surveilled, lacked standing to challenge the
purportedly pernicious practice. Id. In so holding, the Court
acknowledged that a chill on speech sometimes may be a cognizable
injury but explained that, in order to have standing, the plaintiff
must be within the class of persons potentially chilled. Id. at
12-13. In words that seem apropos here, the Court concluded:
"Allegations of a subjective 'chill' are not an adequate substitute
for a claim of specific present objective harm or a threat of
specific future harm." Id. at 13-14.
The plaintiff's plight falls squarely within the compass
of this admonition. Although offended by the Policy, she has
sustained no injury in fact. Thus, she has no sufficient personal
stake in this litigation to ground a determination that she has
standing to sue. See id. at 13 n.7. Even if the Policy chilled
some speech, it did not chill any of the plaintiff's speech.
The plaintiff strives mightily to dodge this bullet. Her
first attempted evasion is a suggestion that we should not assume
from an empty record that her speech was not chilled. That
suggestion turns the standing inquiry on its head. It was the
plaintiff who invoked federal jurisdiction. Hence, it was her
burden to put adequate facts in the record from which a court
reasonably could conclude that she was among those whose speech was
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potentially chilled. See Lujan, 504 U.S. at 561. Having failed to
carry that burden, she lacks standing to maintain this suit.
The plaintiff's second attempted evasion is equally
unavailing. She suggests that because the Policy vests unfettered
discretion in the mayor over what displays are permitted, the mayor
conceivably could use that discretion to favor religious
expositions and, thus, infringe the plaintiff's rights under the
Establishment Clause. We reject this effort to hitch the
plaintiff's First Amendment claim to her defunct Establishment
Clause claim. Simply asserting that the mayor might exercise his
authority in an unconstitutional manner is no different than saying
that the existence of standardless discretion is itself
unconstitutional and redressable without regard to the existence of
an injury in fact. Any way the pie is sliced, the plaintiff still
has to show some reasonable possibility that she would be subject
to the constitutionally defective action. See Tatum, 408 U.S. at
13 n.7. She has not done so.
It is, of course, disquieting whenever government takes
an action that seems to transgress a constitutional protection.
But in the law, as elsewhere, "two wrongs seldom make a right,"
Foster v. Dalton, 71 F.3d 52, 57 (1st Cir. 1995) — and it would be
wrong to arrogate unto ourselves the power to hear a case at the
behest of a plaintiff who lacks standing to sue.
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Moreover, we perceive no unfairness. The standing
inquiry is not very demanding. To satisfy its first element, the
plaintiff need not show that the mayor actually denied her
permission to erect a display. See, e.g., City of Lakewood, 486
U.S. at 756. She need not even show that she actually made such a
request. See, e.g., Freedman, 380 U.S. at 56. Nevertheless, the
record must contain evidence sufficient to indicate an objectively
reasonable possibility that she would be subject to the allegedly
unconstitutional mayoral approval requirement. See Tatum, 408 U.S.
at 11; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 183-84 (2000) (explaining that a
plaintiff need not show a certainty of future harm to establish
standing, so long as there is a reasonable threat of such harm).
The record before us contains no such evidence. It follows that
this suit cannot be maintained in a federal court.
III.
Conclusion
Let us be perfectly clear. We recognize, as did the
learned district court, Osediacz, 344 F. Supp. 2d at 812-14, that
the Policy is constitutionally suspect and we encourage the City to
abandon it (or, at least, to modify it substantially). Absent a
plaintiff with a cognizable interest in the outcome, however, this
is not an appropriate proceeding in which to adjudicate the
Policy's merits.
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We need go no further. The Constitution requires that
litigants have a personal stake in a case before they may sue in a
federal court, see, e.g., Warth v. Seldin, 422 U.S. 490, 499
(1975), and this plaintiff has not provided facts sufficient to
show that she possesses such a stake. Accordingly, her free speech
claim should have been dismissed without prejudice for want of
subject matter jurisdiction.3
We reverse the partial summary judgment entered by the
district court on the free speech claim and remand the case to the
district court with instructions to dismiss that claim and the due
process claim without prejudice for want of standing. All parties
shall bear their own costs.
3
For the same reasons, the plaintiff's due process claim, not
reached by the lower court, see 344 F. Supp. 2d at 801 n.2,
likewise should have been dismissed.
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Osediacz v. City of Cranston
Court: Court of Appeals for the First Circuit
Date filed: 2005-07-06
Citations: 414 F.3d 136
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