A great decision today from the D.C. Circuit in IJ’s challenge to the licensing requirement for D.C. tour guides. Written by Judge Janice Brown, my favorite current judge, the decision is a witty and perfectly apt rejection of the government’s ludicrous restriction on economic freedom and freedom of speech. Yet it contains an interesting little flaw. It doesn’t affect the merits, but it’s worth pointing out, because it’s symptomatic of a very common misunderstanding that lawyers really must avoid.
On p. 8, she writes (citations and quotation marks omitted; italics added):
As a preliminary matter, we note [that the plaintiffs] lodged both a facial and as-applied challenge... To succeed in a typical facial attack, [they] must establish that no set of circumstances exists under which [the challenged regulations] would be valid.... In the First Amendment context, the Supreme Court recognizes a second type of facial challenge, under which a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional.... In neither case, however, must [the plaintiffs] show injury to themselves.
This last sentence is completely false. Article III standing requires that every plaintiff show injury in order to be in the courtroom at all. In no case—First Amendment or otherwise—may a plaintiff sue in federal court without showing some injury to himself.
This imprecision has two sources. First, Judge Brown is confusing how an overbreadth argument works with the concept of “injury”: a plaintiff in an overbreadth challenge is arguing that even if his injury was constitutional, someone else is injured in an unconstitutional way—and that last bit doesn’t apply to him. But it’s not correct to say that he’s uninjured; it just means his injury was legal, but that someone else’s injury isn’t.
But more importantly, judges and lawyers often operate under the misimpression that First Amendment Land is some magical fantasyland full of unicorns and marshmallows, where normal rules of procedure don’t apply. I document another example of this in my article The Timing of Facial Challenges—in which some courts have wrongly said that First Amendment cases aren’t subject to any statute of limitations! That is also false.
It is true that there are some special rules in First Amendment Land. Overbreadth, which Judge Brown mentions, is one of them. But as she indicates, a facial challenge can often seem very like an overbreadth challenge. They are not the same thing, however, and this may be another imprecision in the quote above: overbreadth challenges are not a species of facial challenge. (More on this below.) Another special rule in First Amendment Land is taxpayer standing. But here, too, it’s not so simple as that. Taxpayer standing in Establishment Clause cases is not actually a theory of standing at all—it’s a merits theory that says that if the Establishment Clause is going to be violated, it’s going to be violated by the illegal expenditure of tax-collected funds, so that the normal federal prohibition on taxpayer standing is relaxed. In other words, taxpayers are always injured, by being taxed; Mellon itself admitted that. It’s just that federal courts won’t listen to those injuries. (State courts often will.) But in Establishment Clause injuries, because of something special about the Establishment Clause itself, the Court will not abide by that prohibition. Flast v. Cohen is like an “inhibitor blocker” against the Mellon inhibitor. (Mellon, by the way, is just wrong and should be overruled—but that’s an argument for another day.)
Why is overbreadth not a species of facial challenge? A facial challenge simply says that the law is inherently unconstitutional in all its applications. An as-applied challenge says that in some cases it might be unconstitutional, but in my case it’s not. An overbreadth challenge says that in my case it is constitutional, but in other people’s cases it’s not. So it’s not really a species of facial challenge because it’s conceding that there are at least some cases in which the law would be constitutional. (Namely, my own.)
Overbreadth has also been called a species of third party standing, but this, too, is misleading—and that might be the source of Judge Brown’s incorrect statement about the party not having to show injury to himself in an overbreadth challenge or a facial challenge. The reason this is wrong is because you must be injured in some way to bring suit. As the Sixth Circuit has explained,
[O]verbreadth creates an exception only to the prudential standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies to overbreadth claims under the First Amendment. [Virginia v.] Am. Booksellers Ass’n, 484 U.S. [383,] 392-93 [(1987)] (holding that “[t]o bring a cause of action in federal court requires that plaintiffs establish at an irreducible minimum an injury in fact; that is, there must be some threatened or actual injury resulting from the putatively illegal action.”); see also Sec’y of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984) (“The crucial issues [for overbreadth standing] are whether [the plaintiff] satisfies the requirement of injury-in-fact, and whether [the plaintiff] can be expected satisfactorily to frame the issues in the case.”). Even though [the plaintiff] advances an overbreadth challenge, it is thus still required to show an injury in fact to challenge the provisions of the ordinance that are yet to be litigated.
Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007).
Today’s decision is a great victory for economic freedom and the First Amendment, and sets very important precedent—and this one sentence in the opinion will do little harm. For one thing, the parties obviously had standing, and were obviously harmed by the challenged law. But precision on these procedural matters is important for future cases, and the mistake about First Amendment Land is so common and so frustrating that I thought it important to mention.
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