Updegrove v. Herring
1:20-cv-01141
E.D. Va.Mar 30, 2021Background
- Virginia enacted the Virginia Values Act (VVA) effective July 1, 2020, prohibiting (1) denial of public accommodations on the basis of sexual orientation and (2) publishing statements that such accommodations will be denied.
- The VVA allows any person to file a complaint with the state Division of Human Rights and authorizes the Attorney General to sue on behalf of an injured party; remedies include injunctive relief, attorney's fees, and civil fines (up to $50,000 for a first violation).
- Plaintiff Robert Updegrove is a commercial/wedding photographer who refuses to photograph same-sex weddings on religious grounds and seeks to (a) decline such requests, (b) publish a statement and editorial policy explaining his refusal, and (c) ask prospective clients about planned ceremonies.
- Updegrove brought a pre-enforcement First Amendment challenge and moved for a preliminary injunction; defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6).
- The district court focused on Article III standing for a pre-enforcement challenge: whether Updegrove faces an actual or imminent injury and a credible threat of enforcement sufficient to create a case or controversy.
- The court dismissed for lack of standing, reasoning that (a) the VVA had not been enforced in the nine months since enactment, (b) Updegrove had never posted the challenged statements or been asked to photograph a same-sex wedding, (c) his claimed self-censorship was speculative, and (d) the VVA imposes civil, not criminal, penalties—reducing the chilling effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury-in-fact for pre-enforcement First Amendment challenge) | Updegrove says he intends to publish speech and decline services and therefore faces a substantial risk of enforcement under the VVA. | Defendants say no actual or imminent injury because Updegrove has not published the statements, been asked to photograph a same-sex wedding, or been subject to enforcement. | Court: No standing; plaintiff's interest is speculative and not an imminent injury. |
| Credible threat of enforcement | The VVA is actively enforceable by anyone and the AG; that possibility makes enforcement credible. | Because the VVA had no enforcement history and no complaints had been filed, there is no credible, imminent threat to Updegrove. | Court: Lack of prior enforcement and absence of any interaction with plaintiff undercuts a credible threat. |
| Self-censorship / chilled speech | Updegrove contends he is chilled and has refrained from publishing an editorial/policy due to fear of fines. | Defendants argue speculative desire to speak in the future does not establish a reasonable fear; plaintiff never previously engaged in the speech he now claims to have curtailed. | Court: Self-censorship claim fails—plaintiff never engaged in the speech before, so the chill is not concrete enough to confer standing. |
| Weight of civil penalties (vs. criminal enforcement) | Plaintiff emphasizes the significant civil fines (up to $50,000) as chilling. | Defendants note penalties are civil, not criminal, reducing the chilling effect and the need for pre-enforcement relief. | Court: Civil-only penalties lessen the severity of a chilling effect; cases finding standing often involved criminal penalties. |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III injury-in-fact requirements for standing)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement First Amendment challenge and credible-threat factors)
- Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979) (standing where plaintiff intends to engage in conduct arguably proscribed)
- Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013) (unprovoked agency warning produced standing via self-censorship)
- Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) (First Amendment protects expressive media)
- Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019) (similar dispute over expressive services and public-accommodations law)
- Mobil Oil Corp. v. Att'y Gen. of Va., 940 F.2d 73 (4th Cir. 1991) (standing analysis where lack of enforcement undercuts jurisdiction)
- American Booksellers Ass'n v. Virginia, 484 U.S. 383 (1988) (self-censorship and pre-enforcement challenges where criminal penalties implicated)