Reddy v. Foster
2017 U.S. App. LEXIS 526
1st Cir.2017Background
- New Hampshire enacted RSA §§132:37–132:40 (Senate Bill 319) in June 2014 permitting reproductive-health facilities to demarcate up to 25-foot buffer zones on adjacent public sidewalks; enforcement is civil and requires specified signage and consultation with authorities.
- Plaintiffs (pro‑life protesters/sidewalk counselors) filed a pre‑enforcement facial and as‑applied First Amendment challenge shortly after McCullen v. Coakley, before any clinic had ever demarcated a zone.
- The parties agreed to a stay preserving the status quo and conditioning enforcement on actual demarcation; no clinic has posted any buffer zone since the Act’s enactment.
- Plaintiffs allege fear of prosecution and subjective chilling of expressive activities but did not allege any present change to their conduct or any imminent demarcation by a clinic.
- The district court dismissed for lack of Article III standing (ripeness), and the First Circuit affirmed, holding the challenge premature and speculative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing: whether plaintiffs show an injury‑in‑fact from threatened enforcement | Fear of prosecution and chilling from mere existence of Act and delegation to clinics creates imminent injury | No injury: enforcement requires precondition (clinic demarcation with signage); no zone has been created; prosecution disavowed absent demarcation | No standing: alleged injuries are speculative; no certainly impending or substantial‑risk of harm |
| Prior restraint / delegation: whether Act is a prior restraint because it delegates zone creation to private clinics | Act functions like a licensing prior restraint (cf. Van Wagner) because private actors can trigger speech restrictions | Act imposes no licensing or preauthorization requirement on speakers; delegation alone is not a prior restraint absent evidence of abuse | Not a prior restraint as a matter of law; delegation without actual exercise does not confer pre‑enforcement standing |
| Ripeness: whether facial challenge is fit for adjudication before any zone is posted | Facial invalidation is appropriate now under McCullen; waiting would allow continued harm | Challenge is unripe because injury depends on contingent events (clinic demarcation, location, contours, enforcement) | Not ripe: dispute is speculative, unfit for decision, and plaintiffs suffer no hardship from waiting |
| Ability to obtain redress / justiciability: whether courts can meaningfully adjudicate now and fashion relief | Plaintiffs seek declaratory/injunctive relief against Act as written | Defendants contend courts cannot craft claim‑specific relief absent particular facts about any future zone | Court cannot meaningfully adjudicate or tailor relief absent concrete facts; dismissal without prejudice affirmed |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, and imminent injury)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (test for content‑neutral time, place, manner restraints)
- McCullen v. Coakley, 573 U.S. 464 (2014) (struck down fixed buffer zones around clinics as not narrowly tailored)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (allegations of future injury must not be too speculative for Article III standing)
- Texas v. United States, 523 U.S. 296 (1998) (ripeness requires avoidance of contingent future events and abstract inquiries)
- Van Wagner Bos., LLC v. Davey, 770 F.3d 33 (1st Cir. 2014) (licensing scheme with discretionary decisionmaking can create pre‑enforcement standing)