715 F.3d 615
6th Cir.2013Background
- Michigan in 2011 enacted two laws restricting sexually oriented businesses: on-premises signs limited to words or numbers, and off-site billboards with similar restrictions.
- Two plaintiff businesses (Top Flight Entertainment and ABCDE Operating) challenged the laws as facial First Amendment violations in separate district court actions.
- The district court preliminarily enjoined enforcement and the Governor and Attorney General stipulated to a final judgment declaring the laws facially unconstitutional and permanently enjoining enforcement.
- Two months later, Platinum Sports filed a new challenge against the same laws, attempting to obtain relief and damages through an additional federal suit.
- The court treated the new suit as lacking Article III standing due to no cognizable injury or threat of enforcement given the injunctions.
- The court ultimately affirmed dismissal, holding Platinum Sports lacked injury, any claimed chilling effect was abolished by the injunctions, and the Governor/AG were not threatening enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Platinum Sports has Article III standing. | Platinum Sports argues ongoing chilling effect and future enforcement threaten injury. | Defendants contend there is no credible threat of enforcement and no cognizable injury. | No standing; no cognizable injury; affirmed dismissal. |
| Whether any retroactive damages theory survives the injunctions. | Platinum Sports claims damages from pre-enforcement impact. | Injuries tied to pre-injunction effects not shown; damages forfeited. | Retrospective damages claim forfeited; no basis for relief. |
| Whether the laws still pose a risk of injury by virtue of Senator Hunter’s actions or other officials. | Injury could arise from political advocacy or non-enforcement by officials. | No current threats of enforcement; executive actors bound by injunctions. | No cognizable injury from ongoing or future enforcement. |
Key Cases Cited
- Luján v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (injury must be actual or imminent)
- Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383 (U.S. 1988) (well-founded fear of enforcement required for injury)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (U.S. 1979) (credible threat needed; chilling effect insufficient)
- White v. United States, 601 F.3d 545 (6th Cir. 2010) (remote risk of enforcement lacks cognizable injury)
- Indah v. SEC, 661 F.3d 914 (6th Cir. 2011) (retroactive injury theories not expressed; proper analysis of standing)
- Conlin v. Mortg. Elec. Registration Sys., Inc., F.3d, 2013 WL 1442263 (6th Cir. 2013) (forfeiture of retroactive damages claim)