Reddy v. Foster

United States Court of Appeals
For the First Circuit
No. 16-1432
MARY ROSE REDDY; SUE CLIFTON; JENNIFER ROBIDOUX; JOAN ESPINOLA;
TERRY BARNUM; JACKIE PELLETIER; BETTY BUZZELL,
Plaintiffs, Appellants,
v.
JOSEPH FOSTER, in his official capacity as Attorney General for
the State of New Hampshire; D. CHRIS MCLAUGHLIN, in his official
capacity as County Attorney for Cheshire County, NH; SCOTT W.
MURRAY, in his official capacity as County Attorney for
Merrimack County, NH; DENNIS HOGAN, in his official capacity as
County Attorney for Hillsborough County, NH; PATRICIA CONWAY, in
her official capacity as County Attorney for Rockingham County,
NH; CITY OF MANCHESTER, NH; CITY OF CONCORD, NH; CITY OF KEENE,
NH; TOWN OF GREENLAND, NH,
Defendants, Appellees,
THOMAS P. VELARDI, in his official capacity as County Attorney
for Strafford County, NH; TOWN OF DERRY, NH,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, Chief U.S. District Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
Michael J. Tierney, with whom Wadleigh Starr & Peters PLLC,
Matthew S. Bowman, Kevin H. Theriot, and Alliance Defending Freedom
were on brief, for appellants.
Elizabeth A. Lahey, Assistant Attorney General, New Hampshire
Department of Justice, for appellee Joseph Foster.
John T. Alexander, Garry R. Lane, Ransmeier & Spellman, P.C.,
Samantha D. Elliott, and Gallagher, Callahan & Gartrell, P.C. on
brief for municipal appellees.
January 11, 2017
LYNCH, Circuit Judge. The district court dismissed
without prejudice, for lack of Article III standing, this pre-
enforcement challenge to a New Hampshire statute that has not been
activated or enforced since its enactment in mid-2014. We agree
that the challenge is not ripe and that there is no present Article
III case or controversy before the court. We affirm the dismissal
without prejudice.
The statute in question is New Hampshire Senate Bill
319, entitled "An Act relative to access to reproductive health
care facilities" ("the Act"), which Governor Maggie Hassan signed
into law on June 10, 2014. See N.H. Rev. Stat. Ann. ("RSA")
§§ 132:37–132:40. The Act permits (but does not require) a
reproductive health care facility to demarcate a zone extending
"up to 25 feet" onto public property adjacent to any of the
facility's private entrances, exits, or driveways. Id. § 132:38,
I. If a facility has demarcated a zone by posting the required
signs, following the procedure specified, then members of the
public (with certain listed exceptions) may not "knowingly enter
or remain on [the portion of the] public way or sidewalk" within
that zone. Id. The Act is enforced civilly, by its terms. See
id. § 132:39.
McCullen v. Coakley, 134 S. Ct. 2518 (2014), which held
unconstitutional a buffer zone statute in Massachusetts, was
decided by the U.S. Supreme Court on June 26, 2014, shortly after
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the signing of the Act. Soon thereafter, the plaintiffs commenced
this action in federal district court. Their complaint seeks to
enjoin enforcement of the Act and to have the Act declared facially
unconstitutional under McCullen. They filed the lawsuit before
any facility1 had demarcated a buffer zone, and it remains true
that no facility has ever created one. The parties agreed to a
protracted stay, during which they agreed to preserve the status
quo, and which was in effect until they agreed to dissolve the
stay in part on August 27, 2015.2 See Reddy v. Foster, No. 14-cv-
299-JL, 2016 WL 1305141, at *3 (D.N.H. Apr. 1, 2016). The district
1 The Act defines a "reproductive health care facility" as
"a place, other than within or upon the grounds of a hospital,
where abortions are offered or performed." RSA § 132:37, I. We
use the terms "facility" and "clinic" interchangeably in this
opinion.
2 More specifically, the stay rested on agreements that
(1) no defendant would enforce the Act unless and until a clinic
created a buffer zone; and (2) "[a]ny defendant who receive[d]
notice, through whatever means, that a . . . clinic intend[ed] to
post . . . signage" -- thereby creating an enforceable buffer
zone -- would "immediately notify the plaintiffs, through their
counsel," at which point a preliminary injunction hearing would
occur "forthwith." One purpose of the stay was to give the
legislature a chance to reconsider the Act in the wake of McCullen.
Although the New Hampshire House voted to repeal the Act during
its 2015 session, see H.B. 403, 2015 Leg., Reg. Sess. (N.H. 2015),
the Senate tabled the repeal bill and took no action on it, see
Reddy, 2016 WL 1305141, at *3. In 2016, the House voted again to
repeal the Act, see H.B. 1570, 2016 Leg., Reg. Sess. (N.H. 2016),
but the Senate declined again to pass the House bill, see Paige
Sutherland, N.H.'s 25-Foot Buffer Zone Around Abortion Clinics
Will Stay, N.H. Pub. Radio (May 6, 2016), http://goo.gl/NfCIcj.
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court ultimately granted the defendants' motion to dismiss for
lack of standing. Id. at *1.
We agree with the district court that this pre-
enforcement facial challenge to the Act's constitutionality relies
on overly speculative allegations of injury in fact and is
"premature." Id. The plaintiffs have shown neither standing nor
ripeness. First, the plaintiffs have not alleged that the Act has
meaningfully altered their expressive activities, nor that it has
objectively chilled their exercise of First Amendment rights.
Because no facility in New Hampshire has yet demarcated a zone,
and there is no present evidence that a zone will ever be
demarcated, the plaintiffs' "alleged injury is . . . too
speculative for Article III purposes." Clapper v. Amnesty Int'l
USA, 133 S. Ct. 1138, 1147 (2013) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 565 n.2 (1992)). Second, the plaintiffs
have failed to establish standing either by arguing that case law
about prior restraint applies, see Van Wagner Bos., LLC v. Davey,
770 F.3d 33 (1st Cir. 2014), or by arguing from the fact that the
Act authorizes private clinics to create buffer zones. The Act is
not a prior restraint, and there are no factual allegations that
a clinic has used its zone-drawing power as a tool to change the
plaintiffs' behavior. Third, because the plaintiffs have not
alleged a present chill, and because they have failed to allege
the contours or location of any buffer zone, or why such a zone
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was created, we have no ripe case to adjudicate and no facts that
would allow us to fashion judicial relief. See Texas v. United
States, 523 U.S. 296, 300 (1998).
I.
Background
Because the district court granted a motion to dismiss
for lack of standing, see Fed. R. Civ. P. 12(b)(1), "'we accept as
true all well-pleaded fact[s] . . . and indulge all reasonable
inferences' in the plaintiff[s'] favor." Kerin v. Titeflex Corp.,
770 F.3d 978, 981 (1st Cir. 2014) (first alteration in original)
(quoting Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012)).
The record properly before us consists of both the complaint and
"other materials in the district court record," whether or not the
facts therein are consistent with those alleged in the complaint.
Downing/Salt Pond Partners, L.P. v. Rhode Island, 643 F.3d 16, 17
(1st Cir. 2011).
A. Legislative History of the Act
In its "Statement of Findings and Purposes" accompanying
the passage of the Act, the New Hampshire Legislature found that
"[r]ecent demonstrations outside of reproductive health care
facilities" had (1) "resulted in the fear and intimidation of
patients and employees of the[] facilities," (2) "caused patients
and employees . . . to believe that their safety and right of
privacy [we]re threatened," and (3) "resulted in the fear and
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intimidation of residents and patrons seeking to enter or leave
their homes or other private businesses adjacent to the . . .
facilities." The Legislature simultaneously found, however, that
"[t]he exercise of a person's right to protest or counsel against
certain medical procedures is a First Amendment activity that must
be protected." Accordingly, the Legislature concluded that
establishing a limited buffer zone outside of some
reproductive health care facilities located in the state
of New Hampshire [wa]s necessary to ensure that patients
and employees of reproductive health care facilities
ha[d] unimpeded access to reproductive health care
services while accommodating the First Amendment right
of people to communicate their message to their intended
audience without undue burdens or restrictions.
Aiming to accommodate those interests, the Act provides
that "[n]o person shall knowingly enter or remain on a public way
or sidewalk" within a buffer zone demarcated by a reproductive
health care facility. RSA § 132:38, I. That prohibition does not
apply to four classes of persons:
a) Persons entering or leaving such facility.
b) Employees or agents of such facility acting within
the scope of their employment for the purpose of
providing patient escort services only.
c) Law enforcement, ambulance, firefighting,
construction, utilities, public works and other
municipal agents acting within the scope of their
employment.
d) Persons using the public sidewalk or the right-of-
way adjacent to such facility solely for the
purpose of reaching a destination other than such
facility.
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Id. § 132:28, I(a)–(d). The Act also provides that facilities
must first consult with law enforcement3 and with local authorities
with authority over signage "[p]rior to posting the signage . . .
to ensure compliance with local ordinances," id. § 132:38, III,
and then must "clearly demarcate" any zone they wish to create by
means of signage bearing specified language, id. § 132:38, II. A
zone created pursuant to the Act is "effective [only] during the
facility's business hours." Id. § 132:38, IV.
Law enforcement officers may not impose sanctions, which
are civil sanctions, for violating the Act "unless the signage
authorized in RSA 132:38, II was in place at the time of the
alleged violation." Id. § 132:39, III. If that precondition is
satisfied, an officer is restricted to giving a "written warning"
for an individual's first violation of the Act, and then a citation
for subsequent violations. Id. § 132:39, I. The citation carries
with it "a minimum fine of $100," and "the attorney general or the
appropriate county attorney may bring an action for injunctive
relief to prevent further violations." Id. § 132:39, II. The
Act also has a severability clause. Id. § 132:40.
In the past, some of New Hampshire's clinics have
resolved or attempted to resolve disputes with protestors by asking
3 At a motion hearing, the district court recognized, but
did not resolve, the ambiguity about what role law enforcement
would play.
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local police officers to enforce generally applicable local civil
ordinances relating to public peace, safety, and crowd control.
B. McCullen v. Coakley
Sixteen days after Governor Hassan signed the Act into
law, the U.S. Supreme Court decided McCullen, and that decision
affected the parties in this case. McCullen held unconstitutional
a Massachusetts statute that "categorically excluded" most
individuals from the area within a fixed 35-foot radius of "any
portion of an entrance, exit or driveway of a reproductive health
care facility" during the facility's business hours. 134 S. Ct.
at 2526. The statute was enforceable both civilly and criminally,
with fines, imprisonment, or both. Id.The Massachusetts statute, the Court said, was a
content-neutral time, place, or manner regulation of speech. See
id. at 2530–34. The Court applied the test for such regulations,
as articulated in Ward v. Rock Against Racism, 491 U.S. 781 (1989),
and concluded that the statute was not narrowly tailored, see
McCullen, 134 S. Ct. at 2534–40, because it "burden[ed]
substantially more speech than [wa]s necessary to further the
government's legitimate interests," id. at 2535 (quoting Ward, 491
U.S. at 799). Hence, Massachusetts's statute violated the First
Amendment. See id. at 2541.
The Court's narrow tailoring analysis in McCullen placed
particular weight on two key factors. First, the Massachusetts
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statute created buffer zones of a fixed size, 35 feet, around every
abortion clinic in the state, see id. at 2537, 2539, although the
record reflected that congestion problems occurred "mainly [in]
one place at one time: the Boston Planned Parenthood clinic on
Saturday mornings," id. at 2539. The Court saw a mismatch between
the narrowness of the problem and the breadth of the solution.
Second, Massachusetts "ha[d] not shown that it seriously undertook
to address the problem [of obstruction and harassment by protestors
outside clinics] with less intrusive tools readily available to
it." Id. "Nor ha[d] it shown that it considered different methods
that other jurisdictions ha[d] found effective." Id.
C. This Lawsuit
1. The Parties
The complaint alleges that all seven plaintiffs
"regularly engage in peaceful prayer, leafleting, sidewalk
counseling, pro-life advocacy, and other peaceful expressive
activities" outside various reproductive health care facilities in
New Hampshire. It further alleges that the plaintiffs' "sidewalk
counseling . . . regularly occurs on areas of the public sidewalks
and ways that will be encompassed by buffer zones authorized by
the Act," and so they "fear prosecution under the Act" if they
continue to engage in expressive activities in those public
locations.
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Defendant Joseph Foster is the Attorney General of New
Hampshire. The other defendants4 are the municipalities containing
the clinics at which the plaintiffs wish to continue engaging in
expressive activities, as well as the county attorneys responsible
for enforcing the law in those municipalities. The complaint names
the municipal defendants as parties because they are "authorized
to enforce the Act's buffer zones" in their respective
jurisdictions.5
2. District Court Proceedings
On July 7, 2014, soon after the Supreme Court decided
McCullen and three days before the Act was scheduled to take
effect, the plaintiffs initiated this action. Their complaint
seeks to enjoin enforcement of the Act and to have it struck down
as facially unconstitutional under McCullen, as well as
unconstitutional as applied. When the district court lifted its
stay on further proceedings in August 2015, the state Attorney
General moved to dismiss the complaint for lack of standing.
4 The complaint names the Town of Derry and its county
attorney among the defendants. In the district court, the parties
jointly stipulated that the Planned Parenthood facility in Derry
"does not offer abortion services," and the plaintiffs voluntarily
dismissed those two defendants from the action. Reddy, 2016 WL
1305141, at *3 n.3.
5 The "municipal defendants" maintain on appeal that the
complaint fails to state a claim against them. See Fed. R. Civ.
P. 12(b)(6). Because we dismiss on 12(b)(1) grounds, we need not
reach this argument. See Reddy, 2016 WL 1305141, at *13 n.19.
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The district court granted the motion to dismiss on March
31, 2016, and then entered judgment and a corrected opinion on
April 1, 2016. Reddy, 2016 WL 1305141. The plaintiffs timely
appealed.
II.
Standing and Ripeness
Article III restricts federal court jurisdiction to
"Cases" and "Controversies." U.S. Const. art. III, § 2. That
limitation on "[t]he judicial Power of the United States" is
fundamental to the federal judiciary's role within our
constitutional separation of powers. Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016) (alteration in original) (quoting U.S.
Const. art. III, § 1); see also Warth v. Seldin, 422 U.S. 490, 498
(1975) (discussing "the proper -- and properly limited -- role of
the courts in a democratic society"). Two of the limitation's
manifestations are the justiciability doctrines of standing and
ripeness, which are interrelated; each is rooted in Article III.
See Susan B. Anthony List v. Driehaus ("SBA List"), 134 S. Ct.
2334, 2341 n.5 (2014) ("[T]he Article III standing and ripeness
issues in this case 'boil down to the same question.'" (quoting
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007)));
Warth, 422 U.S. at 499 n.10 (noting the "close affinity" between
standing, ripeness, and mootness); see also Richard H. Fallon et
al., Hart and Wechsler's The Federal Courts and the Federal System
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219–20 (7th ed. 2015) (observing that ripeness "substantially
replicate[s] the standing inquiry" in many respects). This case
implicates both doctrines.
A. Standing
The "[f]irst and foremost" concern in standing analysis
is the requirement that the plaintiff establish an injury in fact,
Spokeo, 136 S. Ct. at 1547 (alteration in original) (quoting Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998)), which
"helps to ensure that the plaintiff has a 'personal stake in the
outcome of the controversy,'" SBA List, 134 S. Ct. at 2341 (quoting
Warth, 422 U.S. at 498). To satisfy Article III, the injury "must
be 'concrete and particularized' and 'actual or imminent, not
"conjectural" or "hypothetical."'" Id. (quoting Lujan, 504 U.S.
at 560).
In certain circumstances, "the threatened enforcement of
a law" may suffice as an "imminent" Article III injury in fact.
Id. at 2342. The rationale for pre-enforcement standing is that
a plaintiff should not have to "expose himself to actual arrest or
prosecution to be entitled to challenge a statute that he claims
deters the exercise of his constitutional rights." Steffel v.
Thompson, 415 U.S. 452, 459 (1974). "An allegation of future
injury may suffice if the threatened injury is 'certainly
impending,' or [if] there is a '"substantial risk" that the harm
will occur.'" SBA List, 134 S. Ct. at 2341 (quoting Clapper, 133
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S. Ct. at 1147, 1150 n.5). But if a future injury is "'too
speculative for Article III purposes' and no prosecution is even
close to impending," then there is no standing to sue. Blum v.
Holder, 744 F.3d 790, 799 (1st Cir. 2014) (quoting Clapper, 133 S.
Ct. at 1147).
Because SBA List both postdated and cited Clapper, we
follow its disjunctive framing of the test: injury is imminent if
it is certainly impending or if there is a substantial risk that
harm will occur. We hold that the plaintiffs have made neither
showing here. It is their burden to do so. See Lujan, 504 U.S.
at 561.
B. Ripeness
Ripeness, another aspect of justiciability, "has roots
in both the Article III case or controversy requirement and in
prudential considerations." Roman Catholic Bishop of Springfield
v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013) (quoting
Mangual v. Rotger-Sabat, 317 F.3d 45, 59 (1st Cir. 2003)). Much
as standing doctrine seeks to keep federal courts out of disputes
involving conjectural or hypothetical injuries, the Supreme Court
has reinforced that ripeness doctrine seeks to prevent the
adjudication of claims relating to "contingent future events that
may not occur as anticipated, or indeed may not occur at all."
Texas, 523 U.S. at 300 (quoting Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 580–81 (1985)). "[T]he facts alleged,
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under all the circumstances, [must] show that there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of" the judicial relief sought. Labor Relations Div. of
Constr. Indus. of Mass., Inc. v. Healey, No. 15-1906, 2016 WL
7321217, at *4 (1st Cir. Dec. 16, 2016) (quoting MedImmune, 549
U.S. at 127).
Insofar as ripeness is rooted in Article III, we must
consider it as part of our assessment of whether we have
jurisdiction to hear the lawsuit.6 See Warth, 422 U.S. at 498.
The plaintiffs bear the burden of alleging facts sufficient to
demonstrate ripeness. See Labor Relations Div., 2016 WL 7321217,
at *5 (citing Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18,
25 (1st Cir. 2007)). Even a facial challenge to a statute is
constitutionally unripe until a plaintiff can show that federal
court adjudication would redress some sort of imminent injury that
he or she faces. See Texas, 523 U.S. at 301 ("Here, as is often
6 Under present law, we may also consider the prudential
aspects of ripeness "on our own motion," regardless of the parties'
wishes. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18
(1993); accord Labor Relations Div., 2016 WL 7321217, at *4. In
SBA List, the Court cast a measure of doubt upon ripeness's
prudential dimensions, observing that prudential justiciability
doctrines, including ripeness, are "in some tension with . . . the
principle that a federal court's obligation to hear and decide
cases within its jurisdiction is virtually unflagging." SBA List,
134 S. Ct. at 2347 (quoting Lexmark Int'l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1386 (2014)).
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true, '[d]etermination of the scope . . . of legislation in advance
of its immediate adverse effect in the context of a concrete case
involves too remote and abstract an inquiry for the proper exercise
of the judicial function.'" (alterations in original) (quoting
Int'l Longshoremen's & Warehousemen's Union, Local 37 v. Boyd, 347
U.S. 222, 224 (1954))); Labor Relations Div., 2016 WL 7321217, at
*1 (finding a lawsuit seeking "pre-enforcement relief . . . not
ripe for adjudication no matter how it is best characterized along
the facial/as-applied spectrum").
Ripeness analysis has two prongs: "fitness" and
"hardship." See Texas, 523 U.S. at 300–01 (quoting Abbott Labs.
v. Gardner, 387 U.S. 136, 149 (1967)). The fitness prong "has
both jurisdictional and prudential components." Roman Catholic
Bishop, 724 F.3d at 89. The jurisdictional component of the
fitness prong concerns "whether there is a sufficiently live case
or controversy, at the time of the proceedings, to create
jurisdiction in the federal courts." Id. We find that the
jurisdictional component has not been satisfied here,
independently of any failure to establish the prudential
component.
The prudential component of the fitness prong concerns
"whether resolution of the dispute should be postponed in the name
of 'judicial restraint from unnecessary decision of constitutional
issues.'" Id. (quoting Mangual, 317 F.3d at 59). "The hardship
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prong . . . is 'wholly prudential,'" id. at 90 (quoting Mangual,
317 F.3d at 59), and "concerns the harm to the parties seeking
relief that would come to those parties from our 'withholding of
a decision' at this time," Labor Relations Div., 2016 WL 7321217,
at *8 (quoting McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 73
(1st Cir. 2003)). We find that these prudential dimensions of
ripeness also have not been satisfied here.
III.
Application of Justiciability Doctrines
Our review of the district court's dismissal is de novo.
See Blum, 744 F.3d at 795.
We agree with the district court that the plaintiffs
lack standing, at this time and on this record, to challenge the
Act. The record does not contain allegations that the plaintiffs
are currently facing a "certainly impending" injury, nor have the
plaintiffs shown that they face a "substantial risk" of injury.
SBA List, 134 S. Ct. at 2341 (quoting Clapper, 133 S. Ct. at 1150
n.5).
A. A Precondition to Enforcement Has Not Been Satisfied, and the
Plaintiffs' Behavior Has Not Been Affected
No buffer zone currently exists, and none has ever
existed in the years since the filing of this lawsuit. The Act is
not currently preventing the plaintiffs from engaging in
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expressive activities in whatever public areas they please. See
RSA § 132:39, III.
The complaint claims only that the plaintiffs "fear
prosecution under the Act." Nowhere does the complaint allege
that the demarcation of a zone is imminent or that prosecution
will occur without that precondition first having been satisfied.
Moreover, the government has affirmatively disavowed prosecution
under the Act unless and until a zone is demarcated according to
the Act's terms.
The other record materials confirm that the demarcation
of a zone is both a precondition to enforcement and an event whose
occurrence is speculative at present. In the plaintiffs'
declarations, submitted to the district court in support of their
motion for a preliminary injunction, they repeat the complaint's
allegation of a "fear [of] prosecution under the Act" if they
continue to engage in their customary behavior. The declarations
also allege that the zones, if created, would prohibit expressive
activity, "make it substantially more difficult to distribute
literature to patients," and "displace [plaintiffs] from positions
where [they] engage in sidewalk counseling." But these alleged
injuries are all conditioned on the demarcation of a zone, and the
declarations allege no concrete or imminent threat of a clinic
choosing to demarcate a zone. So the threat remains
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"hypothetical," given the limited facts before us. SBA List, 134
S. Ct. at 2341 (quoting Lujan, 504 U.S. at 560).
The record shows that, after McCullen, reproductive
health care facilities in New Hampshire reevaluated their
potential use of buffer zones. In her affidavit, dated July 22,
2014, the Concord clinic's director declared that her facility
"has re-evaluated whether to post a buffer [zone] in light of
McCullen" and does "not currently intend to post a buffer zone at
any of the [facility's] entrances." The Greenland clinic's
director, similarly, stated in her July 21, 2014 affidavit that
her facility
does not presently intend to post any buffer zone . . . .
The methods that we have available, and have used in the
past, have been largely effective in providing a
reasonably safe environment for our staff and patients.
Indeed, in her March 2015 testimony before a New Hampshire House
committee, a vice president for Planned Parenthood of Northern New
England stated that "in the spirit of the McCullen decision, [she]
would not even suggest . . . post[ing] a zone where there is not
. . . a history of documented attempts to address the balancing of
rights in less restrictive means before considering the option of
posting."
The district court observed that the Act appears to allow
facilities to demarcate buffer zones "within hours -- if not
minutes -- of any perceived misstep by the plaintiffs." Reddy,
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2016 WL 1305141, at *8. The plaintiffs highlight that fact and
argue that, because they have alleged that a zone could be created
and enforced within a very short amount of time, they have pled a
sufficiently "substantial risk" of injury. SBA List, 134 S. Ct.
at 2341. But the fact remains that demarcation is a "contingent
future event[] that may not occur as anticipated, or indeed may
not occur at all." Texas, 523 U.S. at 300 (quoting Union Carbide,
473 U.S. at 580–81).
The plaintiffs also do not advance their standing
argument by contending that the district court should have
analogized this case to SBA List rather than to Clapper. In fact,
SBA List, like Clapper, confirms that the plaintiffs lack standing.
In SBA List, the Supreme Court recognized the standing
of an organization challenging an Ohio statute that proscribed
"false statements" about a political candidate during a campaign.
134 S. Ct. at 2338–39. That statute had been on the books for
several decades, see Brief of Respondents at 5–6, SBA List, 134 S.
Ct. 2334 (No. 13–193), and there was a robust history of its
enforcement -- including proceedings involving the very same
organization "in a recent election cycle," SBA List, 134 S. Ct. at
2345. Neither of those conditions is present here.
Additionally, in SBA List, the condition precedent to
criminal prosecution was an administrative hearing before the Ohio
Elections Commission, a proceeding that in itself was burdensome
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enough to cause some harm. See id. at 2345–46. Indeed, it was
"the combination of those two threats" -- Commission proceedings
and criminal prosecution -- that the Court found sufficient to
establish injury in fact. Id. at 2346. By contrast, on this
record, demarcation is purely a precondition to harm and not a
harm per se. See RSA § 132:39, III. That distinction makes the
"chain of possibilities" leading to a future cognizable injury,
Clapper, 133 S. Ct. at 1148, significantly more attenuated here
than it was in SBA List.
Further, neither the complaint nor any of the
plaintiffs' declarations alleges that the Act, as of yet, has
forced any sidewalk counselor or protestor to refrain from any
expressive activities. To the contrary, several of the plaintiffs'
declarations acknowledge that "the Act has not yet impacted [their]
activities." Another plaintiff's declaration asserts that
"[b]eing moved beyond the driveway zone at the Greenland abortion
facility would impair [her] message because it would make it harder
for women driving into the facility to see [her] banner." But
nowhere does she allege that she has ever actually been forced to
stand farther away from the clinic than she would like. Nor does
any other plaintiff allege that harm, or any other present harm.
The plaintiffs do allege that they "fear prosecution
under the Act if they continue to" engage in expressive activities
in the public areas where zones may someday be created. But a
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plaintiff's conjectural fear that a government actor "might in the
future take some other and additional action detrimental to" her
does not suffice to create standing. Clapper, 133 S. Ct. at 1152(quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)). Speculation of
that sort amounts to "a subjective chill" -- which, in the Article
III standing context, is "not an adequate substitute for a claim
of specific present objective harm or a threat of specific future
harm." Id. (quoting Laird, 408 U.S. at 13–14).
B. The Plaintiffs Have Not Alleged Any Injury Arising from the
Act's Delegation of Authority to Private Parties
The fact that the Act delegates zone-drawing authority
to private facilities also fails to confer pre-enforcement
standing.
The plaintiffs attempt to sharpen their argument for
standing along two lines. The first is that this case should, as
a matter of law, be treated like Van Wagner, a licensing case.
That analogy is inapt, as we explain below. Plaintiffs' second
line is a factual theory that a clinic could use its authority to
demarcate buffer zones to coerce the plaintiffs into changing, or
refraining from, certain behavior. We need not decide whether
this theory of First Amendment injury could ever be actionable,
because the record is clear that there is no allegation that any
clinic has done any such thing.
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Van Wagner recognized that plaintiffs had pre-
enforcement standing in their facial challenge to a regulatory
scheme in Massachusetts, which required "parties wishing to engage
in outdoor [billboard] advertising to obtain a license in advance"
from a state agency. Van Wagner, 770 F.3d at 35. The scheme
granted "sole discretion" to the agency's director to issue such
licenses. Id. In recognizing standing in Van Wagner, this court
stated that "[i]t is not merely the sporadic abuse of power by the
censor but the pervasive threat inherent in its very existence
that constitutes the danger to freedom of discussion." Id. at 40
(alteration in original) (emphasis omitted) (quoting City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988)). The
plaintiffs, seizing on that language, argue that the Act's
delegation of zone-drawing authority confers pre-enforcement
standing in itself, as a matter of law, without any requirement
that the authority actually be exercised.
The analogy to Van Wagner fails. The Act does not
require the plaintiffs to obtain any sort of license before
engaging in speech. Simply put, there literally is no prior
restraint here imposed; there is only a delegation of the power to
impose a restriction on speech, via demarcation of a zone, at some
point in the future. The plaintiffs cite no case justifying their
"novel theory" that the Act is a prior restraint, Reddy, 2016 WL
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1305141, at *10, and we conclude that this is not a prior restraint
case as a matter of law.7
The plaintiffs also offer a fact-based theory: the
clinics could influence or curtail the plaintiffs' activities by
threatening to demarcate a zone. At oral argument, plaintiffs'
counsel asserted that "the threat to draw zones is what chills
[his] clients' speech."
But the record contains no allegations that this fear of
coercion is anything more than conjecture. The Greenland clinic
director's affidavit, to which counsel directed us at oral argument
when asked for his support on this point, states that "having the
option of creating a buffer if other methods fail . . . would be
helpful when negotiating about unsafe behaviors of the
demonstrators." In the same affidavit, however, the director
states that her clinic "does not presently intend to post any
buffer zone" and that "[t]he methods that [the clinic] ha[s]
available, and ha[s] used in the past, have been largely effective
7 First Unitarian Church of Salt Lake City v. Salt Lake
City Corp., 308 F.3d 1114 (10th Cir. 2002), also fails to support
plaintiffs' theory. First Unitarian did not establish any sort of
special analysis for the delegation of speech-restricting
authority to private parties, but rather held that Salt Lake City
"could not ameliorate [its unconstitutional speech prohibition] by
delegating its power to enforce that prohibition to a third party."
Reddy, 2016 WL 1305141, at *11 (citing First Unitarian, 308 F.3d
at 1132).
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in providing a reasonably safe environment for [its] staff and
patients."
Similarly, the Greenland clinic director testified that
"[t]he threat of having [the Act] enforced . . . did make people
behave in a better way and we've been able to work with that. . . .
I think it's already doing some good." That statement does not
suggest that the clinic has engaged in any form of persuasion,
much less coercion, to alter the plaintiffs' behavior. The
complaint and declarations do not allege that the Greenland clinic
has ever actually used its ability to engage in zone-drawing8 as a
weapon to infringe the First Amendment interests of these
plaintiffs -- or indeed of any individuals wishing to express
themselves.
C. The Dispute Is Not Presently Ripe for Adjudication
In light of our finding on the lack of plausible
allegations of chill from the statute's mere existence, there
remains only the challenge predicated on the possible future
implementation of a zone. But the possible establishment and
contours of such a future zone are highly uncertain. "[W]e have
no idea whether or when" a clinic will demarcate a zone. Texas,
523 U.S. at 300 (quoting Toilet Goods Ass'n, Inc. v. Gardner, 387
8 The record does not show that the Greenland clinic has
ever taken the steps of consulting with law enforcement or local
authorities with authority over signage, making the argument that
it will then use its zone-drawing ability ever more attenuated.
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U.S. 158, 163 (1967)). That observation sounds in the analysis of
both standing and ripeness.
Both components of ripeness's fitness prong point toward
a lack of ripeness in this case. If the dispute were to develop
into a case or controversy fit for adjudication, it would be at
some future time when the Act is causing cognizable harm -- to
particular plaintiffs, at a particular clinic, and under
particular circumstances. Until then, a federal court could not
meaningfully adjudicate a case, nor could it, if the facts
warranted relief, frame redress through injunctive or declaratory
relief. Until the dispute ripens, and more facts come to light,
we "cannot perform the requisite claim-specific . . . analysis as
to any claim that may be brought, as we have before us only
hypothetical . . . claims, the details of which are not known."
Labor Relations Div., 2016 WL 7321217, at *6; see also id. at *7
(finding lawsuit unripe because "no . . . claim-specific inquiry
c[ould] be made" (citing McInnis-Misenor, 319 F.3d at 72)).
With respect to ripeness's hardship prong, there is no
apparent prejudice to the plaintiffs if they must wait until their
claims ripen to sue. They are "not required to engage in, or to
refrain from, any conduct, unless and until" a facility demarcates
a zone. Texas, 523 U.S. at 301; see also Labor Relations Div.,
2016 WL 7321217, at *8 (finding little to no hardship in delaying
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adjudication because of the contingent nature of the claimed
injury).
"In sum, we find it too speculative whether the problem
[the plaintiffs] present[] will ever need solving." Texas, 523
U.S. at 302.
IV.
Conclusion
We affirm the district court's dismissal of the action
for want of jurisdiction. The dismissal is without prejudice.
See Hochendoner v. Genzyme Corp., 823 F.3d 724, 736 (1st Cir.
2016).
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