Académique Documents
Professionnel Documents
Culture Documents
Before
Howard, Selya and Lipez,
Circuit Judges.
SELYA,
Circuit
Judge.
First
Amendment
rights
are
degree,
facial
challenges
to
the
grant
of
such
After
of
their
expressive
conduct
and
poses
court
erroneously
real
and
dismissed
the
Because the
plaintiffs'
First
BACKGROUND
Massachusetts
has
long
regulated
the
display
of
2012.
2008.1
The challenged regulatory scheme requires most parties
wishing to engage in outdoor advertising to obtain a license in
advance. See 700 Mass. Code Regs. 3.02(1). Such parties must also
(with some exceptions) obtain a permit for each sign.
See id.
In making such
including
(but
not
limited
to)
the
physical
Id.
See id.
3.02(2)(c), 3.08(3).
any
See
time
for
cause.
id.
3.03(2)(d),
3.09(2).
The
information;
information).
and
refusal
to
submit
requested
Id.
LLC,
which
is
the
fourth
largest
outdoor
brought suit in the United States District Court for the District
-4-
The district
STANDING
This appeal raises only "pure (or nearly pure) questions
Valentin v. Hosp.
In carrying out
complaint[],
scrutinize
them
in
the
light
most
reasonable
inferences
therefrom
in
the
plaintiffs'
favor."
Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009).
"Where, however, those facts are illuminated, supplemented, or even
contradicted by other materials in the district court record, we
need not confine our jurisdictional inquiry to the pleadings, but
may consider those other materials." Aguilar v. U.S. ICE, 510 F.3d
1, 8 (1st Cir. 2007).
The
Constitution
confines
federal
courts
to
the
art. III, 2; see also Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982).
This circumscription must be taken seriously: ascertaining whether
a matter is a case or controversy within the meaning of Article III
"assumes
particular
importance
in
ensuring
that
the
Federal
547 U.S. 332, 341 (2006) (internal quotation marks omitted). After
all, "[i]f a dispute is not a proper case or controversy, the
courts have no business deciding it, or expounding the law in the
course of doing so."
Id.
See Lujan v.
The "irreducible
-6-
McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 67 (1st Cir. 2003).
The
only
debatable
question
regarding
Van
Wagner's
standing
involves the first element, that is, whether Van Wagner has
sufficiently alleged an injury in fact.
The district court answered this injury-in-fact question
in the negative.
According to the Commonwealth, Van Wagner had applied for more than
seventy permits since November of 2009 without having had a single
application denied.3
regime
is
itself
cognizable
injury
under
the
injury
particularized
and
in
fact
actual
or
must
be
imminent,
both
"concrete
and
not
conjectural
or
With regard to
unbridled
discretion
to
grant
or
deny
permits
for
the
The Court
unfettered
discretion
to
government
officials
over
-8-
Id. at 759.
favorable
application."
and
speedy
Id. at 758.
disposition
on
[a]
permit
Id.
See id. at
759.
To be sure, one might argue (as the Commonwealth does)
that merely being "subject to" a regulation is too subtle a harm to
constitute a cognizable injury in fact. But such an argument flies
in
the
teeth
of
City
of
Lakewood.
What
is
more,
it
has
discretion
in
government
official
to
license
-9-
See, e.g.,
Miller v. City of Cincinnati, 622 F.3d 524, 531-32 (6th Cir. 2010);
CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257,
1274-75 (11th Cir. 2006); Southworth v. Bd. of Regents of the Univ.
of Wis. Sys., 307 F.3d 566, 580-81 (7th Cir. 2002); MacDonald v.
Safir, 206 F.3d 183, 188-89 (2d Cir. 2000); see also Get Outdoors
II, LLC v. City of San Diego, 506 F.3d 886, 894-95 (9th Cir. 2007)
(recognizing doctrine).
2005),
resident
challenged
municipal
policy
no injury in fact because she had failed to allege that she had any
interest in ever erecting a holiday display on the site.
See id.
at 141-42. She was, therefore, not "subject to" the suspect policy
in any meaningful sense.
Id.
-10-
to
expression,
or
to
conduct
commonly
associated
with
San Diego, 453 U.S. 490, 501-02 (1981) (plurality opinion); id. at
524 (Brennan, J., concurring).
See MacDonald,
-11-
renewal of permits.
Commonwealth
presents
host
of
arguments
in
censorship
Commonwealth's
have
argument
materialized.
runs,
are
not
Those
apparent
threats,
the
here
two
for
reasons.
First, the Commonwealth notes that the Massachusetts
regulatory scheme is content-blind; that is, it does not require a
permit-seeker to disclose the proposed content of its sign as part
of the permit application process.
or
veiled
content-based
censorship
wildly
-12-
In particular, City of
F.3d at 531-32; Get Outdoors II, 506 F.3d at 894-95; CAMP Legal
Defense Fund, 451 F.3d at 1274-75; Osediacz, 414 F.3d at 143;
Southworth, 307 F.3d at 580-81; MacDonald, 206 F.3d at 188-89.
This is a perfectly sensible approach.
Id. at 759-60.
The Director
See 700
See id.
from
provisions
engaging
pose
the
in
same
further
protected
potential
threat
expression,
as
the
those
provisions
As the Commonwealth
sees it, this fact shows that the censorship risks are only
theoretical.
Van Wagner is
power by the censor but the pervasive threat inherent in its very
existence that constitutes the danger to freedom of discussion."
City of Lakewood, 486 U.S. at 757 (quoting Thornhill v. Alabama,
310 U.S. 88, 97 (1940)).
This compendium
-15-
[and]
the
physical,
environmental,
cultural,
historical
or
Id.
678-79 (2009).
This is a low bar, and the complaint clears it with ease.
It alleges that the challenged regulations "fail to provide the
Director
with
objective
standards
to
govern
his
permitting
reasonable
adjudicator
plausibly
could
conclude
that
the
-16-
consider.6
These factors
The Commonwealth
(including
that
this
court)
have
followed
lead,
repeatedly
-18-
the public."7
expression.
Thus,
any
regulation
restricting
Van
Seen in this
holding
would
apply
to
section
of
the
challenged
If more were
The
It follows as night
MISCELLANEOUS MATTERS
This leaves two loose ends, which we can tie up with some
celerity.
claims.
-20-
See 28
U.S.C. 1367(c).
proves
to
have
been
improvident,
the
state-law
claims
see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
103-06 (1984).
abstain from deciding Van Wagner's First Amendment claim until the
Massachusetts courts have had an opportunity to weigh in on the
construction and operation of the regulatory permitting scheme.
-21-
See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941);
Barr v. Galvin, 626 F.3d 99, 107-08 (1st Cir. 2010).
We take no view on either of these issues.
below
did
not
address
them,
and
we
think
that
it
The court
would
be
CONCLUSION
We need go no further. For the reasons elucidated above,
-22-