Brown v. Herbert, 2012 U.S. Dist. LEXIS 13792

Plaintiffs are Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan, Utah polygamists who publicly lived as a plural family and engaged in outreach about their lifestyle.
The Browns participated in public programs including HBO interview (2007), 18 Hours (2008), and a University of Utah class (2009).
Utah maintains a policy of not prosecuting bigamy unless accompanied by other crimes, creating a perceived threat of enforcement for the Browns.
After Sister Wives aired, Lehi City PD announced a bigamy investigation; Utah County Attorney’s Office indicated they were investigating based on the show, focusing on bigamy.
The Browns fled to Nevada fearing prosecution but plan to return to Utah when the threat subsides.
The court grants the motion to dismiss the claims against Governor Herbert and Attorney General Shurtleff, but denies it as to County Attorney Buhman, finding standing against Buhman.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to challenge the statute against state officials	Brown plaintiffs have credible threat of prosecution	State officials have no credible threat against plaintiffs	State officials dismissed; standing lacking against them
Standing under First Amendment chilling theory against county prosecutors	Chilling effect from investigations and publicity deters speech	No sufficient credible threat to speech exists	Standing established against Utah County

Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (establishes three elements of standing: injury, causation, redressability)
Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) (standing requires credible threat and authority to enforce)
Summers v. Earth Island Inst., 555 U.S. 488 (U.S. 2009) (independent obligation to ensure standing; self-contained standing rules)
Babbitt v. United Farm Workers National Union, 442 U.S. 289 (U.S. 1979) (pre-enforcement standing can be based on credible threat of prosecution)
Walker v. Initiative & Referendum Inst., 450 F.3d 1082 (10th Cir. 2006) ( Walker test for chilling effect standing requirements)
D.L.S. v. Utah, 374 F.3d 971 (10th Cir. 2004) (credible threat necessary for chilling standing; factors used to assess threat)
Meese v. Keene, 481 U.S. 465 (U.S. 1987) (recognizes chilling effects may raise First Amendment concerns)
New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995) (ripeness/chilling considerations in First Amendment context)
Doe v. Bolton, 410 U.S. 179 (U.S. 1973) (illustrates pre-enforcement standing related to prohibitions on conduct)
Rhodes v. Judiscak, 653 F.3d 1146 (10th Cir. 2011) (illustrates redressability considerations in declaratory actions)