New Jersey Bankers Association v. Attorney General New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 21-2352, 21-2433
____________
NEW JERSEY BANKERS ASSOCIATION
v.
ATTORNEY GENERAL NEW JERSEY
New Jersey Bankers Association,
Appellant in No. 21-2352
Attorney General New Jersey,
Appellant in No. 21-2433
____________
On Appeal from the United States District Court
for the District of New Jersey
(Civil No. 3-18-cv-15725)
District Judge: Honorable Brian R. Martinotti
____________
Argued July 14, 2022
____________
Before: GREENAWAY, JR., MATEY, and NYGAARD,
Circuit Judges.
(Filed: September 28, 2022)
John D. Haggerty
Lawrence S. Lustberg
Gibbons
One Gateway Center
Newark, NJ 07102
Rachel Rodman [ARGUED]
Cadwalader Wickersham & Taft
700 Sixth Street, N.W.
Washington, DC 20001
Jonathan M. Watkins
Cadwalader Wickersham & Taft
650 South Tryon Street
Charlotte, NC 28202
Counsel for Appellant
Endel Kolde
Institute for Free Speech
1150 Connecticut Avenue, N.W.
Suite 801
Washington, DC 20036
Jonathan S. Franklin
Independent Community Bankers of America
American Bankers Association
Norton Rose Fulbright
799 9th Street, N.W.
2
Suite 1000
Washington, DC 20001
Counsel for Amicus Appellant
Matthew J. Platkin
Acting Attorney General of New Jersey
Jeremy M. Feigenbaum
State Solicitor
Melissa Dutton Schaffer
Assistant Attorney General
Melissa Fich
Timothy Sheehan [ARGUED]
Deputy Attorneys General
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellee
Paul M. Smith
Campaign Legal Center
1101 14th Street, N.W.
Suite 400
Washington, DC 2005
Counsel for Amicus Appellee
____________
3
OPINION OF THE COURT
___________
GREENAWAY, JR., Circuit Judge.
In this appeal, New Jersey Bankers Association
(“NJBA”) asks us to reverse the District Court’s holding that
the contribution ban in N.J. Stat. Ann. § 19:34-45 [hereinafter
§ 19:34-45] does not contravene the First Amendment. The
Attorney General of New Jersey (“Attorney General”) seeks
reversal of the District Court’s holding that § 19:34-45
encompasses independent expenditures in violation of the First
Amendment. Because we hold that § 19:34-45 does not apply
to trade associations of banks, we resolve the case on statutory
grounds and decline to reach these First Amendment issues.
We will reverse the judgment of the District Court and remand.
I.Background
NJBA is a non-profit member-funded trade association
representing 88 banks headquartered in or with branches in
New Jersey. It seeks to make independent expenditures and
contributions to political parties and campaigns for state and
local office in New Jersey. However, it has not made these
payments based on the concern that the Attorney General
would enforce § 19:34-45 against it.
Section 19:34-45 provides that, among other specified
corporations, “[n]o corporation carrying on the business of a
bank . . . shall pay or contribute money or thing of value in
order to aid or promote the nomination or election of any
person, or in order to aid or promote the interests, success or
defeat of any political party.” In its complaint, NJBA alleged
4
that this statute prohibits it from making independent
expenditures and contributions to political parties and
campaigns. Throughout this case, NJBA has made no
contributions to any New Jersey political party or campaign. It
began making independent expenditures only after the District
Court invalidated § 19:34-45’s prohibition on independent
expenditures.
To secure the ability to make independent expenditures
and contributions without fear of enforcement under § 19:34-
45, NJBA sued the Attorney General of New Jersey in the
United States District Court for the District of New Jersey on
November 6, 2018. It purported to bring a facial challenge to
§ 19:34-45 on its own behalf and on behalf of third-party
banks. In Count One, NJBA alleged that § 19:34-45
encompasses independent expenditures in violation of the First
Amendment. In Count Two, NJBA alleged that § 19:34-45’s
complete prohibition on contributions by certain corporations
is unconstitutional because the statute is not closely drawn to
serve the important state interest in combatting quid quo pro
corruption or its appearance. NJBA sought a declaratory
judgment that the ban on independent expenditures and
contributions is unconstitutional. It also sought an injunction
prohibiting the Attorney General from enforcing the ban on
independent expenditures and contributions.
On June 21, 2021, the District Court granted summary
judgment in favor of NJBA on Count One, holding that §
19:34-45 prohibits independent expenditures in violation of the
First Amendment. It rejected the Attorney General’s argument
that the statute bars only campaign contributions.
Accordingly, it issued a declaratory judgment that the statute
“does not ban any entity from making independent
expenditures.” J.A. 24-25.
5
With regard to Count Two, the District Court granted
summary judgment in favor of the Attorney General, holding
that § 19:34-45’s ban on political contributions by certain
corporations does not violate the First Amendment. It held the
statute passes intermediate scrutiny. First, it concluded that the
statute advances the state’s legitimate interest in preventing
quid pro quo corruption or its appearance. Second, it
determined that the statute is closely drawn to its anti-
corruption purpose. On this point, the District Court observed
that 18 other states have laws banning contributions by some
or all corporations—and, in its view, these laws have a scope
that is similar to or broader than the New Jersey law. The
District Court also noted that statutory alternatives, such as
contribution limits and disclosure requirements, would not be
as effective in combatting corruption. NJBA appealed the
grant of summary judgment on Count Two. The Attorney
General cross appealed the grant of summary judgment on
Count One.
II.Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. §
1291.
Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We review
the order granting summary judgment, including the factual
and legal questions, de novo. Ezaki Glico Kabushiki Kaisha v.
Lotte Int’l Am. Corp., 986 F.3d 250, 255 (3d Cir. 2021); see
also Perelman v. Perelman, 793 F.3d 368, 373 (3d Cir. 2015)
(exercising de novo review over the District Court’s legal
6
conclusions relating to standing). We “view the underlying
facts and all reasonable inferences therefrom in the light most
favorable to the party opposing the motion.” Eisai, Inc. v.
Sanofi Aventis U.S., LLC, 821 F.3d 394, 402 (3d Cir. 2016)
(internal citation and quotation marks omitted).
III.NJBA’s Article III Standing and Remedy
NJBA has sought to bring a facial challenge to § 19:34-
45 on behalf of itself and third-party banks. Although the
parties did not raise standing as an issue in their opening briefs,
standing is a “threshold jurisdictional requirement” and we
“have an obligation to examine our own jurisdiction.”
Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248,
254 (3d Cir. 2005) (quoting Pub. Int. Rsch. Grp. of N.J., Inc. v.
Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997));
see also In re Imerys Talc Am., Inc., 38 F.4th 361, 370 (3d Cir.
2022) (identifying standing as “a threshold matter”). First, we
consider whether NJBA has standing to sue on its own behalf.
We conclude that it does.
A. Article III Standing Requirements
Article III requires a showing that the plaintiff has: “(1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant,1 and (3) that is likely to
1
Traceability means that the injury was caused by the
challenged action of the defendant as opposed to an
independent action of a third party. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992). We have yet to articulate a single
standard for establishing this “causal relationship.” See
Khodara Env’t, Inc. v. Blakely, 376 F.3d 187, 195 (3d Cir.
2004). Instead, we have held that but-for causation is sufficient
7
be redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016)
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992);
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000)).
With regard to the injury in fact element, “we do not
require a plaintiff to expose himself to liability before bringing
suit to challenge the basis for the threat.” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 128-29 (2007). Instead, courts
have held that a credible threat of prosecution under an
allegedly unconstitutional statute constitutes an injury in fact.
See Babbitt v. United Farm Workers Nat’l Union, 442 U.S.
289, 298 (1979). The threat may not be merely “imaginary or
wholly speculative.” Susan B. Anthony List v. Driehaus, 573
U.S. 149, 160 (2014) (quoting Babbit, 442 U.S. at 302).
The Supreme Court has articulated three factors for
establishing “a credible threat of enforcement.” Id. at 161
(citing Babbit, 442 U.S. at 298). First, there must be “an
intention to engage in a course of conduct arguably affected
with a constitutional interest.” Id. (quoting Babbit, 442 U.S. at
298). Second, the intended conduct must be “arguably . . .
proscribed by [the] statute” that the plaintiff seeks to challenge.
Id. at 162 (quoting Babbit, 442 U.S. at 298) (alteration in
original). Arguably proscribed is not a stringent test. In Susan
to satisfy traceability. See, e.g., Edmonson v. Lincoln Nat’l
Life Ins. Co., 725 F.3d 406, 418 (3d Cir. 2013). So, too, is
concurrent causation. See, e.g., Const. Party of Pa. v. Aichele,
757 F.3d 347, 366 (3d Cir. 2014).
8
B. Anthony List, the Supreme Court deemed it sufficient that a
statute appeared broad enough to cover the intended conduct.
Id. at 162. The Supreme Court also relied on the fact that the
entity charged with identifying statutory violations had
previously interpreted the statute as applying to the intended
conduct. Id.Third, the plaintiff must face a “substantial” “threat of
future enforcement” under the statute. Id. at 164. For this
inquiry, we consider the “history of past enforcement.” Id.B. NJBA Satisfies Article III Standing Requirements
NJBA has Article III standing to sue on its own behalf.
First, NJBA has sufficiently alleged an injury in fact. Namely,
it has satisfied each of the three factors required for
demonstrating a credible threat of enforcement under § 19:34-
45. It intends to engage in “conduct arguably affected with a
constitutional interest,” as it seeks to make independent
expenditures and contributions, which implicate the First
Amendment. Id. at 161; Citizens United v. FEC, 558 U.S. 310,
372 (2010) (holding that “restrictions on corporate independent
expenditures” are unconstitutional); FEC v. Beaumont, 539
U.S. 146, 161 (2003) (stating that “restrictions on political
contributions have been treated as merely ‘marginal’ speech
restrictions subject to relatively complaisant review under the
First Amendment” (citing FEC v. Colo. Republican Fed.
Campaign Comm., 533 U.S. 431, 440 (2001))).
Next, NJBA’s intended conduct is arguably proscribed
by § 19:34-45. The statute sets parameters for making
“pay[ments] or contribut[ions of] money or thing[s] of value in
order to aid or promote the nomination or election of any
person, or in order to aid or promote the interests, success or
9
defeat of any political party.” § 19:34-45. At least for purposes
of Article III standing, this language appears broad enough to
cover NJBA’s intention to make independent expenditures and
contributions to political parties and campaigns. See Susan B.
Anthony List, 573 U.S. at 162. That the Attorney General of
New Jersey issued a 2002 Opinion interpreting § 19:34-45 as
applying to trade associations of banks, and has consistently
reiterated that position throughout this litigation, confirms our
conclusion that NJBA’s intended conduct is “arguably
proscribed.” See id.
Lastly, NJBA faces a “substantial” “threat of future
enforcement” under § 19:34-45. Id. at 164. The Attorney
General—the person charged with enforcing the statute—has
already articulated that NJBA is subject to the prohibitions in
the statute. See id. Based on his interpretation, we have no
reason to believe that the Attorney General would decline to
enforce § 19:34-45 against NJBA if it were to make its
intended independent expenditures and contributions.
Injury in fact aside, NJBA satisfies the remaining
elements of Article III standing. The credible threat of
prosecution is traceable to the Attorney General’s enforcement
of § 19:34-45, consistent with its 2002 Opinion. See Spokeo,
Inc., 578 U.S. at 338. That injury would be redressed by a
declaration that § 19:34-45 violates the First Amendment and
an injunction against the enforcement of the ban. See id.
10
IV.Section 19:34-45 Does Not Cover Trade Associations of
Banks
Because NJBA has standing to sue on its own behalf,
we will reach the merits. The parties have asked us to
determine whether: (1) § 19:34-45 encompasses independent
expenditures in violation of the First Amendment; and (2) the
statute’s prohibition on contributions withstands scrutiny
under the First Amendment.
However, pursuant to well-established constitutional
avoidance principles, the threshold question is a statutory one:
whether § 19:34-45 applies to NJBA at all. See Doe v. Pa. Bd.
of Prob. & Parole, 513 F.3d 95, 102 (3d Cir. 2008) (“As a first
inquiry, we must avoid deciding a constitutional question if the
case may be disposed of on some other basis.” (citing Spicer v.
Hilton, 618 F.2d 232, 239 (3d Cir. 1980)); see also Bond v.
United States, 572 U.S. 844, 855 (2014) (observing that it is “a
well-established principle governing the prudent exercise of
[the Supreme] Court’s jurisdiction that normally the Court will
not decide a constitutional question if there is some other
ground upon which to dispose of the case” (quoting Escambia
County. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)));
Owner Operator Indep. Drivers Ass’n v. Pa. Tpk. Comm’n,
934 F.3d 283, 292 n.9 (3d Cir. 2019) (“Principles of
constitutional avoidance counsel us to first address whether a
statutory ground resolves the case, and thereby renders
unnecessary the need to answer the ‘constitutional
question[.]’”); United States v. Serafini, 167 F.3d 812, 815 n.7
(3d Cir. 1999) (“Longstanding practice calls for federal judges
to explore all non-constitutional grounds of decision before
addressing the constitutional ones[.]”). The applicability of §
19:34-45 turns on whether NJBA qualifies as a “corporation
carrying on the business of a bank.” We hold that it does not.
11
A. Statutory Interpretation
“Our analysis begins and ends with the text[.]” Octane
Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545,
553 (2014). In determining whether the meaning of a statutory
term is plain, we consider the “the language itself, the specific
context in which that language is used, and the broader context
of the statute as a whole.” Byrd v. Shannon, 715 F.3d 117, 123
(3d Cir. 2013) (quoting Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997)). “[W]here [the legislature’s] will has been
expressed in language that has a reasonably plain meaning, that
language must ordinarily be regarded as conclusive.” Id. at 122
(citing Negonsott v. Samuels, 507 U.S. 99, 104 (1993)).
B. Statutory Analysis
Here, the statutory language—to “carry[] on the
business of a bank”—has a reasonably plain meaning.
Contemporaneous dictionary definitions reveal that, at bottom,
a “corporation carrying on the business of a bank” is one that
makes loans and receives deposits. Relevant dictionaries
define “bank” as “[a]n institution, of great value in the
commercial world, empowered to receive deposits of money,
to make loans, and to issue its promissory notes, (designed to
circulate as money, and commonly called ‘bank-notes’ or
‘bank-bills,’) or to perform any one or more of these
functions,” Bank, Black’s Law Dictionary 117 (2d ed. 1910);
and “[a]n institution for receiving and lending money . . . .
They receive, lend, and transmit money, and issue notes which
are used as money, and buy, sell, and collect bills of
12
exchange . . . .” Bank, The Century Dictionary and Cyclopedia
441 (William Dwight Whitney et al. eds. rev., enl. ed. 1911).2
Treating the plain meaning as conclusive, we decline to
hold that a “corporation carrying on the business of a bank”
encompasses NJBA, a trade association of banks. Of note,
NJBA does not ask us to adopt that interpretation. Appellant’s
2d Supp. Br. 3 (“Under the plain terms of N.J.S.A. 19:34-45 [],
Plaintiff is not a ‘corporation carrying on the business of a
bank.’”). Indeed, NJBA endorses the contemporaneous
dictionary definition of banking, and concedes that it does not
perform the functions of a bank. Appellant’s 2d Supp. Br. 3
(emphasis in original) (NJBA “does not engage in banking,”
as “[n]one of [NJBA’s] functions involve making deposits,
issuing debt, or transacting in currency.”).
C. Attorney General of New Jersey’s Interpretation
We recognize that our holding contravenes the Attorney
General’s interpretation. In his 2002 Opinion, he explained
2
These dictionary definitions are consistent with judicial
interpretations. We have observed that “[t]he receipt of
deposits is banking business, and constitutes the institution of
a bank.” United States v. Howell, 240 F.2d 149, 154 (3d Cir.
1956) (citing Rosenblum v. Anglim, 135 F.2d 512, 513 (9th Cir.
1943)). Likewise, the Supreme Court has stated that “[h]aving
a place of business where deposits are received and paid out on
checks, and where money is loaned upon security, is the
substance of the business of a banker.” Warren v. Shook, 91
U.S. 704, 710 (1875).
13
that a trade association “must be subject to the same strictures
as its individual members” since it is “comprised of [banks]
and is funded by them.” J.A. 227. He explained that § 19:34-
45 is meant “to insulate elected officials from the influence of
regulated industries.” J.A. 227. In his view, interpreting §
19:34-45 as inapplicable to trade associations would “render[]
[the statutory purpose] meaningless if regulated industries
could exert the prohibited political influence simply by
forming trade associations.” J.A. 228.
Initially, we are not bound by the Attorney General’s
legal interpretations. See Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 395 (1988) (declining to accept an Attorney
General’s legal interpretation as authority because “the
Attorney General does not bind the state courts or local law
enforcement authorities”); see also Quarto v. Adams, 929 A.2d
1111, 1117 (N.J. Super. Ct. App. Div. 2007) (noting that it was
“not bound to adopt the Attorney General’s Formal Opinion as
a correct statement of law” although “it is nonetheless entitled
to a degree of deference”); Cole v. Woodcliff Lake Bd. of Educ.,
382 A.2d 966, 970 (N.J. Super. Ct. Law Div. 1977) (stating
that “interpretations of statutes rendered by the Attorney
General” are “not binding”).
Further, this potential loophole does not allow us to
depart from the ordinary meaning of the statute. Only “absurd
results and ‘the most extraordinary showing of contrary
intentions’” would justify such a departure. First Merchants
Acceptance Corp. v. J.C. Bradford & Co., 198 F.3d 394, 403
14
(3d Cir. 1999) (quoting Garcia v. United States, 469 U.S. 70,
75 (1984)).3
An absurd result is “an outcome so contrary to
perceived social values that [the legislature] could not have
‘intended’ it.” United States v. Fontaine, 697 F.3d 221, 228
(3d Cir. 2012) (quoting John F. Manning, The Absurdity
Doctrine, 116 Harv. L. Rev. 2387, 2390 (2003)). As long as
the legislature “could have any conceivable justification for a
result—even if the result carries negative consequences—that
result cannot be absurd.” Ricco v. Sentry Credit, Inc., 954 F.3d
582, 588-89 (3d Cir. 2020) (citing Fontaine, 697 F.3d at 228).
Interpreting § 19:34-45 to exclude trade associations of
banks falls short of the high bar this Court has set. In fact,
excluding them makes sense. Trade associations are less likely
to pose a risk of quid pro quo corruption because their member
banks have varying interests, whereas individual banks have
uniform interests. Take a trade association with members
ranging from a large multi-state bank, a small community
3
Judge Matey agrees that the ordinary meaning of a
“corporation carrying on the business of a bank” in N.J. Stat.
Ann. § 19:34-45 does not encompass a trade association of
banks, but believes it is unnecessary to consider the absurdity
doctrine. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,
459–61 (2002) (rejecting request to “invoke some form of an
absurd results test” where the “statute does not contain
conflicting provisions or ambiguous language”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 238 (2012) (“The [absurdity] doctrine does not
include substantive errors arising from a drafter’s failure to
appreciate the effect of certain provisions.”).
15
bank, a regional bank, and a credit union. These entities have
unique, and sometimes antagonistic, interests and goals. What
one member bank considers to be favorable legislation may be
harmful to another member bank. It follows that the member
banks are unlikely to seek a uniform quid pro quo from
political actors. Given that preventing quid pro quo corruption
or its appearance is the single “legitimate governmental
interest for restricting campaign finances,” the state legislature
may have found it unnecessary to prohibit trade associations of
banks from making contributions. McCutcheon v. FEC, 572
U.S. 185, 206-07 (2014).
Because we can resolve the case on statutory grounds—
namely, by interpreting the statute as inapplicable to trade
associations of banks—we decline to reach the First
Amendment issues. In doing so, we nonetheless provide
complete relief. NJBA seeks to make independent
expenditures and contributions; based on our reading of §
19:34-45, it may do so.
V.Facial Challenge
In addition to proceeding on the basis of Article III
standing, NJBA seeks to bring a facial challenge on behalf of
third-party banks. In NJBA’s view, resolving its claims on
statutory grounds would provide complete relief only for an as-
applied challenge. That resolution would do nothing to prevent
§ 19:34-45 from “continu[ing] to chill banks from exercising
their constitutionally protected rights of political expression
and association.” Appellant’s 2d Supp. Br. 3-6. However,
NJBA does not satisfy the narrow exception to the general rule
against third-party standing. In holding that the statute does
not apply to NJBA, we provide all the relief to which NJBA is
entitled.
16
A. Prudential Standing Requirements
“Ordinarily, one may not claim standing . . . to
vindicate the constitutional rights of some third party.”
Singleton v. Wulff, 428 U.S. 106, 114 (1976) (quoting Barrows
v. Jackson, 346 U.S. 249, 255 (1953)). This prudential rule is
designed to “avoid deciding questions of broad social import .
. . and to limit access to the federal courts to those litigants best
suited to assert a particular claim.” Gladstone Realtors v.
Village of Bellwood, 441 U.S. 91, 99-100 (1979).
However, we have recognized an exception to the
prudential rule against third party standing. “Under the First
Amendment overbreadth doctrine, a party may bring a facial
challenge against a statute, even though it is not
unconstitutional as applied to that particular party, because ‘the
statute’s very existence may cause others not before the court
to refrain from constitutionally protected speech or
expression.’” Free Speech Coal., Inc. v. Att’y Gen. of U.S., 677
F.3d 519, 537 (3d Cir. 2012) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973)). Notably, “[d]eclaring
a statute unconstitutional on overbreadth grounds is ‘strong
medicine’ and should be used ‘sparingly and only as a last
resort.’” Id. (quoting Broadrick, 413 U.S. at 613).
To qualify for this exception, the plaintiff must (1) have
“suffered an actual injury”; (2) have “a close enough
relationship with the party whose rights he or she is asserting”;
and (3) there must be “some hindrance to the third party’s
ability to protect his or her own interests.” The Pitt News v.
Fisher, 215 F.3d 354, 362 (3d Cir. 2000) (citing Powers v.
Ohio, 499 U.S. 400, 411 (1991)).
17
In some cases, the requirement that an impediment exist
to the third party asserting his or own rights should be
“relax[ed].” Id. at 363-64. For instance, we relax this
requirement where a statute “substantially abridges the First
Amendment rights of other parties not before the court.”
Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S.
620, 634 (1980) (citations omitted). “[A] mere interference
with the third party’s rights” is not enough, and only “an
intolerable, inhibitory effect on freedom of speech” will
suffice. The Pitt News, 215 F.3d at 363-64 (quoting Eisenstadt
v. Baird, 405 U.S. 438, 445 n.5 (1972)).
B. NJBA Does Not Satisfy Prudential Standing
Prudential standing concerns prevent us from
concluding that NJBA can assert a third-party claim on behalf
of third-party banks. Applying the prudential standing factors
from The Pitt News, NJBA sustained an “actual injury”—
namely, the credible threat of enforcement under § 19:34-45.
See 215 F.3d at 362; see also supra Section III Part B. Further,
NJBA has a sufficiently “close enough relationship” with its
member banks, as its “primary mission is to represent its
members’ interests before state and federal government
authorities.” See The Pitt News, 215 F.3d at 362; Dkt. No. 1 ¶
8.
However, NJBA has failed to allege that some
impediment exists to the third-party banks’ ability to assert
their own rights. See The Pitt News, 215 F.3d at 362. This is
not necessarily fatal. We can relax this criterion if § 19:34-45
“substantially abridges the First Amendment rights” of third-
party banks. See Village of Schaumburg, 444 U.S. at 634. But
NJBA cannot satisfy that either. A prerequisite to a finding of
substantial abridgment is that the plaintiff must actually allege
18
such abridgment of the rights of parties not before the court.
See Ashcroft v. Free Speech Coal., 535 U.S. 234, 243 (2002)
(finding third-party standing of an association that alleged
“that [a law] threatened the activities of its members”). NJBA
has not alleged that any of its member banks will sustain a First
Amendment injury. The complaint barely mentions the
member banks at all. Because NJBA cannot satisfy the third
criterion in the prudential standing analysis and does not
qualify for the relaxed standard, we hold that NJBA cannot
bring a facial challenge behalf of third-party banks.
VI.Conclusion
Because we hold that NJBA is not a “corporation
carrying on the business of a bank” for purposes of § 19:34-45,
we will reverse the judgment of the District Court and remand.
19