Reply to US supreme court strikes blow against LGBTQ+ rights with Colorado ruling

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[quote=Anonymous]Those of you falsely claiming that the plaintiff didn’t have standing need to go beyond a TNR article and ask why neither the U.S. District Court, the 10th Circuit Court of Appeals (both of which ruled against 303 Creative) did NOT dispute her standing, nor did the state of Colorado ever dispute standing.

The reason can be found most comprehensively in a section of the Supreme Court’s unanimous 2014 opinion in SBA v. Driehaus, another free speech case. This portion, which was approved by 9 justices including, RBG, Breyer, Sotomayor, and Kagan, discusses considerable case law that does not require a plaintiff to have been injured in a chilled speech case in order to demonstrate standing:

One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See Steffel v. Thompson, 415 U. S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); see also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 128–129 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat”). Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979). Several of our cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent with Article III.

In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him.

We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his companion’s prosecution showed that his “concern with arrest” was not “ ‘ chimerical.’ ” 415 U. S., at 459. Under those circumstances, we said, “it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Ibid.

In Babbitt, we considered a preenforcement challenge to a statute that made it an unfair labor practice to encourage consumers to boycott an “agricultural product . . . by the use of dishonest, untruthful and deceptive publicity.’ ” 442 U. S., at 301. The plaintiffs contended that the law “unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals.” Ibid.

Building on Steffel, we explained that a plaintiff could bring a preenforcement suit when he “has alleged an intention to engage in a course of conduct arguably af- fected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbit, supra, at 298. We found those circumstances present in Babbitt. In that case, the law “on its face proscribe[d] dishonest, untruthful, and deceptive publicity.” 442 U. S., at 302. The plaintiffs had “actively engaged in consumer publicity campaigns in the past” and alleged “an intention to continue” those campaigns in the future. Id., at 301. And although they did not “plan to propagate untruths,” they argued that “ ‘ erroneous statement is inevitable in free debate.’ ” Ibid. We concluded that the plaintiffs’ fear of prosecution was not “imaginary or wholly speculative,” and that their challenge to the consumer publicity provision presented an Article III case or controversy. Id., at 302.

Two other cases bear mention. In Virginia v. American Booksellers Assn. Inc., 484 U. S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to “ ‘knowingly display for commercial purpose’ ” material that is “ ‘harmful to juveniles’ ” as defined by the statute. Id., at 386. At trial, the booksellers introduced 16 books they believed were covered by the statute and testified that costly compliance measures would be necessary to avoid prosecution for displaying such books. Just as in Babbitt and Steffel, we determined that the “pre-enforcement nature” of the suit was not “troubl[ing]” because the plaintiffs had “alleged an actual and well-founded fear that the law will be enforced against them.” 484 U. S., at 393.

Finally, in Holder v. Humanitarian Law Project, 561 U. S. 1 (2010), we considered a preenforcement challenge to a law that criminalized “ ‘ knowingly provid[ing] mate- rial support or resources to a foreign terrorist organization.’ ” Id., at 8. The plaintiffs claimed that they had provided support to groups designated as terrorist organizations prior to the law’s enactment and would provide similar support in the future. The Government had charged 150 persons with violating the law and declined to disavow prosecution if the plaintiffs resumed their support of the designated organizations. We held that the claims were justiciable: The plaintiffs faced a “ ‘credible threat’ ” of enforcement and “ ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’ ” Id., at 15.

https://www.law.cornell.edu/supremecourt/text/13-193

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