White's Place, Inc. v. Glover , 222 F.3d 1327 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
AUGUST 18, 2000
THOMAS K. KAHN
No. 98-3733 CLERK
_______________
D. C. Docket No. 97-00930-CV-J-20C
WHITE'S PLACE, INC. d.b.a. The Gold Club,
Plaintiff-Appellant,
versus
NATHANIEL GLOVER, in his official capacity as Sheriff of
the City of Jacksonville, CITY OF JACKSONVILLE, a
Florida municipal corporation,
Defendants-Appellees.
______________________________
Appeal from the United States District Court
for the Middle District of Florida
______________________________
(August 18, 2000)
Before BIRCH, FAY and KRAVITCH, Circuit Judges.
BIRCH, Circuit Judge:
This appeal presents the issue of whether a corporation has standing to bring a
First Amendment facial overbreadth challenge to a city ordinance that prohibits
individuals from opposing a police officer. The corporation sought a preliminary
injunction preventing enforcement of the ordinance in district court, which the district
judge denied on the merits. Because we find that the corporation lacks standing to
assert its challenge to the city ordinance we VACATE and REMAND.
I. BACKGROUND
Plaintiff-appellant, White’s Place, Inc. (“White’s Place”), is a corporation
that owns and operates The Gold Club in Jacksonville, Florida. The club presents
nude dancing for entertainment. This appeal arises out of broader litigation in
which White’s Place sought relief from enforcement of a Jacksonville adult
entertainment ordinance. In its amended complaint, White’s Place requested
declaratory relief on the grounds that Jacksonville’s ordinance prohibiting
opposition to a police officer is over broad and void for vagueness.1 See
Jacksonville, Fl. Code § 601.06. Section 601.06 provides that it is a misdemeanor
“for any person to resist or oppose a police officer . . .in the discharge of his duties
1
The incident that prompted the challenge to § 601.06 involved a demonstration in front of the
club by employees protesting an adverse state court ruling affecting the ability of the employees to
dance nude. An officer responded to the scene and there is a factual dispute as to what transpired
between the officer and the protesters. No one was arrested. The facts are irrelevant to our analysis,
except insofar as we note that the dispute involved a demonstration on a public street and did not
involve activity inside the club.
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under the laws of the City.” Id. White’s Place also sought a preliminary injunction
barring enforcement of the ordinance for the duration of its suit against the Sheriff
and City of Jacksonville. Concluding that White’s Place did not demonstrate a
substantial likelihood of success on the merits of its First Amendment complaint,
the district judge denied the preliminary injunction. On appeal, we asked the
parties to address the threshold issue of whether White’s Place has standing to
challenge the city ordinance.
II. STANDING
Prior to reaching the merits of the appeal brought by White’s Place, we first
must determine whether a corporation has standing to bring a challenge to the
ordinance. We cannot proceed without determining that standing exists, even if
both parties concede jurisdiction. See Hallandale Prof’l Fire Fighters Local 2238
v. City of Hallandale, 922 F.2d 756, 759 (11th Cir. 1991); see also FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215, 230, 110 S. Ct. 596, 607, 107 L. Ed. 2d 603 (1990)
(“[W]e are required to address the issue [of standing] even if the courts below have
not passed on it . . . .”).
We have recognized, and logic dictates, that there are “two possible theories
under which a corporation might bring a civil rights action: (1) to protect the rights
of its members; or (2) to protect its own rights as a corporate institution.” Church
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of Scientology of California v. Cazares, 638 F.2d 1272, 1276 (5th Cir. 1981).2
Applying this reasoning in the context of this First Amendment challenge, White’s
Place must establish that it has standing to sue either on its own behalf or on behalf
of its members. We address each of these possibilities in turn.
A. Traditional Standing
In order to sue on its own behalf, White’s Place must demonstrate that the
standing requirements of Article III are satisfied and that it has presented a
justiciable controversy. The elements of standing are well established.
[A] plaintiff must show (1) it has suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., ___ U.S. ___,
___, 120 S. Ct. 693, 704, 145 L. Ed. 2d 610 (2000). The burden is on the party
seeking to exercise jurisdiction to allege and then to prove facts sufficient to
support jurisdiction. See FW/PBS, Inc., 493 U.S. at 231, 110 S. Ct. at 608.
The Supreme Court has relaxed traditional rules of standing for facial
challenges in the First Amendment area, by “‘no[t] requir[ing] that the person
2
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
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making the attack demonstrate that his own conduct could not be regulated by a
statute drawn with the requisite narrow specificity.’” Broadrick v. Oklahoma, 413
U.S. 601, 612, 93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1973) (quoting
Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22(1965)). We will not force a plaintiff to choose between intentionally violating a
law to gain access to judicial review and foregoing what he or she believes to be
constitutionally protected activity in order to avoid criminal prosecution. See
Leverett v. City of Pinellas Park, 775 F.2d 1536, 1538 (11th Cir. 1985) (per
curiam). Nevertheless, the threat of prosecution under the ordinance at issue must
be genuine; speculative or imaginary threats will not confer standing. See id.; see
also United Public Workers of Amer. (C.I.O.) v. Mitchell, 330 U.S. 75, 89, 67 S.
Ct. 556, 564, 91 L. Ed. 754 (1947) (stating that concrete issues, not abstractions,
need to be presented for the exercise of judicial power to be appropriate).3
White’s Place argues that it has demonstrated a genuine threat of prosecution
because of the threatened arrest of its employees while they were engaged in
demonstrations in front of the club owned by the corporation. At most, this is an
3
In addition, overbreadth claims frequently have been limited when invoked against criminal
laws, with courts preferring to examine whether the specific conduct at issue falls within the
legitimate scope of the criminal statute, rather than entertain a broad challenge to the statute at issue.
See Broadrick, 413 U.S. at 613-14, 93 S. Ct. at 2917 (providing examples of cases in which the
courts have decided the narrower question and not addressed the constitutionality of the statute).
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argument in support of associational standing, which we address infra. The
corporation also asserts that it need not demonstrate that its own rights are affected
by the allegedly unconstitutional ordinance in order to present successfully a facial
challenge on overbreadth grounds. In determining whether standing exists,
however, we must “focus[] on what the ordinance seeks to regulate rather than on
what the individual seeks to protect.” Id. “A court can be most certain that a
constitutional challenge grows out of a genuine dispute where the allegedly
unconstitutional statute interferes with the way the plaintiff would normally
conduct his or her affairs.” Id. at 1539.
White’s Place is a corporation which provides nude dancing in its club. It is
difficult to discern how the normal conduct of the corporation’s affairs will involve
opposition to police officers. Even if employees of the establishment do oppose a
police officer and are arrested, any criminal charges are personal in consequence.
The corporation itself has not, and could not, be arrested for opposing a police
officer. “[E]ven in a first amendment context the injury-to-the-plaintiff
requirement cannot be ignored.” Hallandale Prof’l Fire Fighters, 922 F.2d at 760
(citing Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972) for the
proposition that facial challenges under the First Amendment are not justiciable
where injuries alleged are too speculative). Any hypothetical injury to the
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corporation is too speculative to provide a basis for standing. Because we find that
White’s Place lacks standing to challenge the ordinance in its own right,
jurisdiction fails unless the corporation can be deemed to have associational
standing to bring a facial challenge on behalf of its agents or employees.
B. Associational Standing
White’s Place argues that standing also can be based on its representation of
the interests of its employees and agents, who have been threatened with arrest
under the applicable ordinance. “An association has standing to bring suit on
behalf of its members when its members would otherwise have standing to sue in
their own right, the interests at stake are germane to the organization’s purpose,
and neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., ___ U.S. ___, 120 S. Ct. 693, 704, 145 L.
Ed. 2d 610 (2000) (citing Hunt v. Washington State Apple Adver. Comm’n, 432
U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977)).
The corporation creatively asserts that its purpose is “dedicat[ion] to the
dissemination of erotic speech, which is protected by the First Amendment” and
that, consequently, “protection of First Amendment freedoms is certainly within
the ambit of the interests of White’s Place, Inc.” Appellant’s Supplemental Brief at
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6. We agree with the reasoning of the Fifth Circuit that a business may assert the
First Amendment rights of its employees where “violation of those rights adversely
affects the financial interests or patronage of the business.” Hang On, Inc. v. City
of Arlington, 65 F.3d 1248, 1252 (5th Cir. 1995); see e.g., David Vincent, Inc. v.
Broward County, 200 F.3d 1325 (11th Cir. 2000) (ruling on the merits where a
corporation operating an adult bookstore challenged zoning and licensing
ordinances that applied to adult businesses).
In contrast, the ordinance being challenged here does not directly relate to
the interests of the business. White’s Place is a corporation whose primary purpose
is to present erotic dancing for profit. The restriction on speech at issue in this
appeal, the ability to oppose a police officer legitimately through spoken words, is
not related sufficiently to the organization’s purpose. The participation of an
individual employee who has been threatened with arrest is necessary. Without
such participation, standing, and, therefore, jurisdiction in this court is lacking.4
III. CONCLUSION
White’s Place has challenged the denial of a preliminary injunction barring
enforcement of Jacksonville’s ordinance prohibiting the opposition of a police
4
Nothing in this opinion should be read to preclude White’s Place from moving to implead an
individual plaintiff on remand.
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officer. Because the corporation does not have standing to challenge the statute,
we VACATE the district judge’s order and REMAND to the district court for
further proceedings consistent with this opinion.
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