Initiative & Referendum Institute v. Walker

threat to the continued existence and re- shrew,” covery of [BVL] id. 10107- WALKER, Olene S. Lieutenant Gover “high potential 08. Given the that these Utah; Shurtleff, nor of Mark Attor threats could result the extinction of the ney Utah, General of —Ap Defendant s shrew,” Final Rule [BVL] concludes pellees/Cross-Appellants, preferred

that “the action is to list the endangered.” shrew as [BVL] Id. at 10110. and, Nothing required more was of FWS Federation; Utah Wildlife Utah Foun

therefore, third claim is Kern’s also with- dation for North American Wild out merit. Sheep; Sportsmen for Fish and Wild life/Sportsmen Habitat; Utah Conclusion V. Federation; Farm Bureau Utah Bow Association; man’s Representative reasons, For the foregoing FWS ade- Styler; Mike Black; Professor Hal L. quately complied APA with its and ESA Terry Messmer; Cindy Professor Ms. procedural requirements. Accordingly, we Labrum; Jones; Mr. Ken Mr. Karl affirm the district court’s determination Malone; Edwards, Dr. Charles C. Am that no serious or substantial reason exists ici Curiae. negate listing provide for a new period. comment 02-4105, Nos. 02-4123. AFFIRMED. United States Court of Appeals,

Tenth Circuit. May INITIATIVE AND IN REFERENDUM

STITUTE; Society Humane States; Animals;

United Fund for the Jones,

David M. Utah State House

Representative; Grant; Lynette Bart Brooks; Craig

E. Axford; S. Connie

Bullis; Carter; Dick Drew Chamber

lain; Betty Christensen; High F. Uin Council;

tas Preservation Humane

Society Utah; Kearney; Sean Larsen; Nancy

Charles Christian El Lord;

len Ridg Whitehead Michael T.

way; Congress; Utah Environmental Vanwagenen;

Richard Richard War

nick; Stacy Williams, —Ap Plaintiff s

pellants/Cross-Appellees, (Robert

Lisa Watts Baskin R. Wallace briefs), with her on Plant, Wallace, Kanell, Christensen & Salt Lake City, Utah, for Plaintiffs-Appellants/Cross-Ap- pellees. Roberts,

Thom D. Assistant Attorney (Mark General Shurtleff, L. Attorney Gen- eral, briefs), with him on the Salt Lake Utah, City, for Defendants-Appel- lees/Cross-Appellants. Wilkins,

Richard G. J. Reuben Clark School, Law Brigham Young University, Provo, Utah, John Ray, D. Jennifer E. Decker, and Matthew B. Hutchinson of Clendenin, Fabian & Utah, City, Salt Lake filed an amici curiae brief for the Utah Federation, al., Wildlife et Support Defendants-Appellees/Cross-Appellants. TACHA, Before Chief Circuit Judge, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O’BRIEN, McCONNELL, and TYMKOVICH, Judges. Circuit topics does specific initiatives on McCONNELL, Judge. Circuit speech. freedom of implicate voters allows Constitution The Utah to the “to be submitted legislation initiate History Procedural I. Facts vote of majority upon adoption people for Constitution the Utah Since Utah legislation.” voting those the state power of Const, legislative vested l(2)(a)(i)(A). Initiatives VI, § art. and House state Senate only however, management, to wildlife related people of but in “the Representatives “legisla- standard: special subject to Const, VI, art. Utah State Utah.” allow, limit, prohibit tion initiated l(l)(b). legis- people § exercise for or season or the taking of VI, provided Article power lative adopted shall taking wildlife method of au- 1(2), voters the grants Section vot- of those of two-thirds approval upon up to be legislation voted thority to initiate l(2)(a)(ii). The VI, § art. ing.” in a voters majority a by down and animal Plaintiffs, wildlife including six id. art. See general election. legislators state several advocacy groups, l(2)(a)(i)(A). second state § Utah was a dozen more than and politicians, and to initi- power extend the to in the Union Amend- individuals, First bring a facial Thomas E. to citizens. See legislation ate re- supermajority challenge to this The Politics Cronin, Democracy: Direct is that claim principal Their quirement. Initiative, Recall 51 Referendum, initiatives, wildlife raising the bar for initi- (1989). to voters From 1960 “chilling effect” a imposes provision Two of these measures. ated fifteen ballot Amendment First of their the exercise polls. See State at the approval won in a manner does so rights, and Office, Ini- of Utah Results Elections content-discriminatory Utah impermissibly both 1960-2000, Referendums, tiatives held court district The and overbroad. gov/ResultsofUtahlni- http://elections.utah. raise standing Plaintiffs had tiativesandReferendums.htm. their challenge, but dismissed the merits. While claim on Amendment wild- with dealt of those initiatives None Plaintiffs’ appeal, was on this case issues, but wildlife management life Cir- support from another gained position opportuni- an rights advocates saw animal Galvin, 412 F.3d Wirzburger v. cuit. In where box ballot ty to succeed (1st Ap- Cir.2005), the Court legislature. state stymied had been a state held that the First Circuit peals commissioned of citizens group a ballot prohibiting provision constitutional cougar survey regarding public-opinion a subject consti- particular on a initiatives determine hunting methods bear subject a restriction tutes likely to was whether ballot scrutiny. intermediate Meanwhile, the threat they used succeed. bar- wildlife initiative re- of a statewide both court in the district affirm We offi- with state negotiations tool gaining Plain- of the hold that some We spects. states, other Western In several cials. Utah’s standing challenge tiffs have ani- high-profile groups sponsored national requirement supermajority initiatives, and and wildlife protection mal ripe case is and that initiatives mount similar they could dis- believed Respectfully justiciable. otherwise According to documents in Utah. Circuit, campaign hold we with the First agreeing Plaintiffs, by 1996 by the submitted imposing provision that a constitutional an- had Cougar Coalition called group for enactment requirement supermajority nounced its mission to “advance the cause their First rights, violates the predator protection ... by taking our First Amendment on grounds, overbreadth directly cause to the citizens of Utah and violates Equal Protection Clause of an means initiative.” App. 62. In Jan- of the Fourteenth They Amendment. also uary Society Humane alleged various violations of the Utah Con- United States commenced planning Salt stitution. The Defendants countered that City Lake for a wildlife initiative Utah. the Plaintiffs lacked standing bring their facial challenge, and that in case In February two-thirds of the the Plaintiffs’ First Amendment claims members of both houses of legis- the Utah failed as a matter of law. passed lature endorsing resolutions VI, amendment to Article Section of the The district court held that the Plaintiffs state constitution: “clearly have standing bring this suit.” [Legislation allow, limit, initiated to Walker, Initiative & Inst. v. Referendum

prohibit the taking of wildlife or the (D.Utah F.Supp.2d 1307, 2001). season for or method of taking of wild- It concluded that the alleged Plaintiffs had life adopted shall be upon approval of fact,” an “injury in noting that although two-thirds of those voting. the Plaintiffs had not participated in a Const, ballot initiative VI, l(2)(a)(ii). drive passage § Utah since the art. Proposition proposed they amendment, had “demonstrated “Proposition dubbed 5,” through was number of popular slated for a affidavits that they during vote have used the November 1998 initiative general election. At a often meeting past likely the Utah are Constitutional Revi- future.” sion Commission in Id. at 1310. A August causal several connection existed proponents explained the injury reasons for between claimed their and the chal- support of Proposition lenged conduct, Represen- State according to the district tative Styler praised court, Michael perform- because “[i]f the Amendment is un- ance of existing regional constitutional, wildlife manage- then Plaintiffs’ injury is di- ment “expressed councils and concern that rectly traceable to the existence of the certain groups from outside the state want Amendment.” Id. The district court also to manage practices Utah wildlife through found the Plaintiffs’ challenge ripe, holding initiative petition.” App. 55. Peay, Don that under the “relaxed” standards for representing group called Utahns for ripeness in facial challenges under Wildlife, put it more bluntly, calling Propo- Amendment, First alleged pres- had sition 5 “an effort preserve Utah’s wild- ent injury: a continuing chilling effect on practices life from East Coast In- Special their First rights, Amendment “higher terest groups” who planned to press “the costs in getting an passed” Washington agenda” DC through the ini- future. Id. at 1311-12. rejected It also process. tiative Id. argument Defendants’ the case In the general election, ripe was not for 56% of review because the approved voters Proposition 5, amendment did not in and the fact have a chilling amendment went into effect January 1, effect on on the Plaintiffs’ speech, noting that then, 1999. Since group no “it or individual would be inappropriate to dismiss the pursued a wildlife initiative in case ripeness Utah. on grounds because one might find that the Speech Free claim is The Plaintiffs filed this lawsuit on Octo- not meritorious.” Id. 23, 2000, ber alleging that supermajori- ty requirement created Proposition merits, however, On the the district impermissibly burdens exercise court granted the Defendants’ motion to be more could the merits when questions Amend- facial Plaintiffs’ dismiss resolved). begin We therefore easily superma- that the claims, concluding Plaintiffs have determining whether not amount did jority requirement Amendment bring their First standing to The rule all. “restriction” claim. a wildlife pass more difficult it “makes noted, does not “but

initiative,” court A. talking about such from people prohibit in our courts role of federal The district Id. at 1313. all.” issues limited.” society “properly is democratic charac- the Plaintiffs’ with disagreed court 737, 750, 104 468 U.S. Wright, Allen viewpoint as the amendment terization (1984); see also L.Ed.2d viewpoint that “no discrimination, finding v. Ams. Unit Coll. Forge Christian Valley subject to discrimination or content State, Inc., & Church Separation ed discussion,” in part public occlusion “ 464, 476, 102 S.Ct. in wildlife’ interested ‘people (1982). being than Rather homogeneous environmentalists free-wheeling enforcers constituted of one member being a groups laws, the federal the Constitution that one suggest does not groups these ” Madi James limited to what were courts ‘viewpoint.’ discrete] would have Nature,” 2 Judiciary aof “cases son called at 1314. Convention of the Federal The Records a dismissal agreed The Plaintiffs (Max ed., 1911), and Farrand at 430 law and state prejudice of without calls “cases” III of the Constitution Article claims, appeal protection equal Const, Ill, art. and “controversies.” chal- their First only press judicial role limited § 2. Concern cross-appeal The Defendants lenge. that, for a federal in the principle reflected motion of their denial court’s district under Article jurisdiction to exercise court grounds. ripeness standing and on dismiss (and ultimately allege III, must plaintiffs heard of this three-judge panel Court A “injury an have suffered they prove) 15, 2003. September argument oral fairly traceable fact,” injury is in standing of importance Because of Defendants, of the action challenged to the stake, issues and by a favorable it is redressable and that en banc for initial however, the case setwe Wildlife, Lujan v. decision. Defenders en banc on the case reheard review 555, 560-61, 112 S.Ct. 15,2005. November impor- (1992). Particularly 351 L.Ed.2d require- is tant, purposes, present for Standing II. fact,” in which “injury an ment of more itself finds this Court Although as “an invasion has defined Supreme standing (a) question on the closely divided interest protected legally aof (b) First Amendment actual underlying particularized than concrete based on hypotheti- the merits or claim, imminent, conjectural cannot reach we not or (internal 560, than we 2130 more 112 standing,” S.Ct. Id. at “hypothetical cal.” citations, and footnote subject marks, matter hypothetical quotation can exercise future omitted). possible “Allegations of Co. v. Citizens See Steel jurisdiction. fact injury in 83, 94, satisfy the Env’t, 118 S.Ct. not do injury” 523 U.S. Better Arkansas, 495 v. (1998) (rejecting the Whitmore requirement, 210 1003, 140 1717, 109 L.Ed.2d 158, 149, S.Ct. 110 U.S. jurisdiction,” “hypothetical doctrine need though plaintiff (1990), appeals 135 by courts some once embraced prose- arrest to actual himself “expose jurisdictional difficult way to avoid as a 1088

cution to be entitled to challenge a statute need for the iron to slip fist its velvet that he claims deters the exercise of his glove. hand, theOn other in speech cases constitutional rights,” others, v. Thompson, as in courts must not intervene in Steffel 452, 459, 415 1209, U.S. 94 S.Ct. 39 the processes government in the ab- (1974). L.Ed.2d 505 purposes For of a sufficiently sence “concrete partic- standing inquiry, the question is not injury. ularized” Lujan, 560, 504 U.S. alleged whether the injury 2130; rises see also Utah Animal level of a constitutional violation. That Rights v. Coal. Salt City Lake Corp., 371 the issue on the merits. 1248, (10th For standing F.3d 1255 Cir.2004); Ward, 321 purposes, only we if ask there was an F.3d at 1266-67. fact, in

injury caused the challenged Most cases involving standing based on action and in redressable court. a First Amendment chilling effect in arise the context of criminal laws injury prohibiting alleged by the Plaintiffs various forms of speech expressive con- this case is a chilling effect on their See, duct. e.g., Babbitt v. speech in United Farm support of wildlife initiatives Union, Workers Nat’l 442 289, 298, Utah. U.S. This 99 Court has recognized that a 2301, S.Ct. 60 (1979); L.Ed.2d 895 chilling effect Wins- on the plain exercise of a Yocom, ness v. (10th 433 F.3d tiffs First 736 Amendment rights may amount Cir.2006). often, Most to a those judicially cognizable cases injury fact, involve a past arrest or action, other long as it enforcement “arisefs] an objectively declaration justified plaintiff of an fear of inten- real consequences.” tion to engage in Utah, prohibited (10th v. D.L.S. 374 conduct F.3d 975 again in future, Cir.2004); Utah, evidence see of a Ward 321 F.3d “credible (10th prosecution threat” of if Cir.2003); do. Wilson v. See, e.g., Wilson, Stocker, (10th F.2d at Cir.1987). (uphold- ing standing and Although finding mere “[allegations subjec credible threat of future prosecution tive plaintiff ‘chill’ are where the adequate substitute had for a been claim arrested specific past present objective violating the challenged harm or a specific statute and harm,” threat “presented future Tatum, sworn testimony Laird that he 1, 13-14, wishes to continue (1972), 33 L.Ed.2d conduct which precipitated plaintiffs arrest, may his bring suits but has rearrest”). for not done prospective so relief for fear of Amendment cases where they can demon This case does not involve a criminal strate “a threat prosecution credible of or statute prosecution, threat of but other consequences flowing from the stat rather a provision of the state constitution D.L.S., ute’s enforcement.” 374 F.3d at determining the number of votes required 975. for a citizen initiative to become law. The Line-drawing in standing question cases is is rarely whether the Plaintiffs a face easy, but where plaintiffs alleged inju- “credible threat” of “real consequences” ry is a chilling effect on the from freedom of enforcement of the supermajority re- speech, the standing inquiry quirement. D.L.S., is particularly 374 F.3d at 975. The By delicate. definition, injury is incho- Defendants acknowledge plaintiff that a ate: speech chilled, is it has not need not actually arrest, risk prosecution, yet occurred might occur, and yet never or other consequences adverse to obtain government may have no taken formal standing. They insist, however, that Arti- enforcement action. We ignore cannot cle requires III that a plaintiff specif- have such just harms because there has been no ic plans to take subject actions to the con- lends evidence first time—such “currently pend- a must be There statute. to the plaintiffs’ specificity and creteness involving proposal ing” Article danger that claims, avoids and the Plain- least issues, ator management to the formal- be reduced requirements III or immediate “specific a have must tiffs If the right words. mouthing the ity of ofBr. initiative.” bring such to intent criteria, it is three satisfy these plaintiffs speculative not, too “it is If 25. Appellees they spe- have to show that necessary of the fitness to evaluate conjectural engage or intentions plans cific at resolution.” judicial the claims challenged by the speech of affected type 26. Farm See United action. government who plaintiff right. A cannot That 303, 99 Workers, at S.Ct. 442 U.S. asserts chilling effect alleges a to en- desire (“[I]t appellees clear that is discourages, statute some existence very cam- publicity in consumer least gage at his First exercise prevents, or even Act; accordingly, by the paigns prohibited plaintiff Such rights. Amendment precision challenge we think indeed, not— should does definition not— itself, was provision, penalty the criminal engage in intention present have District Court by the entertained properly It future. time specific aat speech Ward, (noting at 1267 F.3d simul- plaintiffs require no sense makes injury in fact when suffers plaintiff that a presently statute “ say “this taneously to exercising her from ‘chilled she speech,” in XYZ engaging from me chills expression in forgoes expression to free engage plans specific “I have conse- avoid enforcement order ” plaintiffs Yet Tuesday.” next speech XYZ Rotger- Mangual (quoting quences’ a “sub- allege merely than do more must Cir.2003))). (1st 45, 57 Sabat, ” 13-14, Laird, ‘chill.’ jective three of these satisfaction We believe summon took to If all it same level roughly provides criteria courts were the federal jurisdiction our particularity concreteness govern- that, as a result assertion bare involv- in cases demanded have precedents discouraged action, one ment prosecution. of criminal ing the threat left of be little would there speaking, con procedural in the arises This case in First III threshold Article plead on the to dismiss motion of a text cases. plaintiffs evaluating ings. When the trial “both stage, in a suit plaintiffs standing hold that We all true accept must “chilling ef reviewing courts based relief prospective complaint, require allegations satisfy the material can speech fect” in favor complaint “con injury be must construe their claim Seldin, Warth party.” complaining evidence and particularized” crete in the engaged have past con (1975). “must alsoWe challenged by the affected type of affida in the made statements the (2) or testi strue action; affidavits government pe most favorable light desire, no though vits present stating mony Trust v. Realty D & F titioner.” speech; such engage in Afonso plans, specific (D.C.Cir. 216 F.3d Garvey, they present claim plausible so because 2000). to do intention no ly have be statute will threat credible B. activi past Though evidence enforced. in this standing issue respect, In one indispensable be obviously cannot

ties typical in the than doubtful is less case speak right to have people element — arising cases from threat of criminal pros The claim piled speculation upon specula- many ecution. In cases, those tion: Army there is might collect information question serious whether about plaintiffs, challenged might take some statute or ordinance future action information, will be based on that enforced against and that action plaintiff might injure in the plaintiffs. future. See Winsness, Although the Court “fully recognize[d] 433 F.3d at 734 (finding no governmental action may subject credible be threat of enforcement based on constitutional challenge even prosecutorial though it has any disavowals of intention only an indirect effect on the exercise of to enforce the statute future); First Amendment rights,” it D.L.S., held 374 F.3d at 974-75 (finding no plaintiffs lacked standing, characterizing threat of prosecution plaintiff where the the claim as “subjective chill” had been neither arrested nor charged they objective had no basis to believe violating challenged statute, prosecu specific faced a present or imminent harm. tors any disavowed intention to enforce the 12-13, Id. at 92 S.Ct. 2318. statute, and the Supreme Court had re There cently is no struck occasion in down a similar this case for law as uncon speculation stitutional); prosecutorial about discretion, City Faustin v. County & or whether Denver, law will (10th Cir.2001) 268 F.3d enforced against the anyone, Plaintiffs. If (finding no Plaintiffs “real and immediate threat” of included, mounts an initiative campaign in- prosecution because of a city prosecutor’s volving wildlife management, the initiative determination that the plaintiffs conduct will be subject to the two-thirds require- did not violate the challenged statute); ment, attendant effects on the Phelps Hamilton, freedom of speech will be felt. The diffi- (10th Cir.1997) (finding no standing where question, cult therefore, is not whether plaintiffs failed to demonstrate a credi there is a “credible threat of enforcement,” ble prosecution threat under a recently but whether those effects on free speech statute). amended In case, by con constitute “injury in fact.” trast, the threat of just enforcement is not credible, but certain. C. This case is poles thus apart from Laird The Plaintiffs in this case have Tatum, far done more than merely allege a “sub ” rely. Laird, Defendants citi- jective Laird, ‘chill.’ 13-14, U.S. at zens filed enjoin suit to the Army from 92 S.Ct. 2318. past Their and current collecting information about domestic polit- conduct in preparation support for such ical activities posed a risk of civil initiatives in Utah and states, surrounding disorder. plaintiffs alleged that the their allegations regarding their desire to information gathering alone, without any (but use for the effect enforcement or other against action of Proposition 5), and their claims that the

plaintiffs, chilled the exercise of their First supermajority requirement is the reason Amendment rights because of their “fear they are not currently pursuing initiatives that, armed with the fruit of those activi- provide sufficiently concrete manifesta ties, agency might in the future take tions of pursue desire to a wildlife initia some other and additional action detrimen- tive survive dismissal this stage of tal to [them].” Id. at 92 S.Ct. 2318. litigation.1 1. Some of the express Plaintiffs no initiative, interest in a wildlife merely but oppose the pejora- albeit recognizable, groups” est preparation in conduct First, past their —a our Plaintiffs. some of tive, of description provides initiatives wildlife support for or Br. 22. 62; Opening Appellants’ that App. the inference for support concrete Proposition campaign initiatives During similar pursue would Plaintiffs super- require- supermajority not for future, of the supporters if were in the Plaintiff, Legal Animal one explicitly mentioned majority requirement. States, affiliated Fund, boasts which the United Society Defense Humane Utah, it “accom- that initiative in states planned whose members organization through primarily purposes its 62. It would App. plishes obstructed. should be Am. litigation.” now, plain- hold, initiative that such peculiar be Lynette Plaintiff App. 77. f Compl. Byrd, Raines See not tiffs are affected. public to commission helped Brooks cougar voters survey of Utah opinion (explaining L.Ed.2d 849 in designed methods, hunting and bear on whether the “focuses inquiry standing success the chance gage [sic] “to part bring this proper party plaintiff Although App. 189. initiative.” a ballot suit”). pursue plans specific no alleges she affidavits Second, Complaint in her affida- initiative, explains she future have the Plaintiffs make clear supermajority “because this is vit ini- management wildlife mount desire to futile” my efforts makes requirement state- in These campaigns Utah. tiative Ani- for the Fund Similarly, the at 190.2 fall short necessarily allegations ments and already has organization, mals, Plaintiff tell us do not Plaintiffs plans. specific in initiatives protection animal brought bring, they would what initiatives precisely California, Arizona, including states, other certainty when; claim nor do Montana, Oregon, Idaho, Colorado, stated For reasons intentions. about their A factfinder 211. Id. at Washington. surprising. however, is not above, pat- infer, this based on reasonably could Animals, has 500 which for the The Fund in West- wildlife initiatives bringing tern suit be- Utah, brings this in members neigh- of Utah’s including three ern states Fund who “those individuals half of bring similar desire bors, present efforts any initiative pursue wish to in Utah. initiatives ¶ Ac- 6, App. 76-77. Compl. Am. Utah.” these individuals It is clear Carter, po- “[t]he Dick Plaintiff cording to ab- than an more have far organizations power initiative of the utilization tential superma- Utah’s in whether interest stract pres- past, contemplated has been valid; constitutionally requirement is jority App. 194. Plain- future.” ent, most party type precisely they are stated, “I foresee Craig Axford tiff Indeed, Proposi- Proposition affected ex- (or potentially my organization) myself designed to thwart avowedly tion 5 was participate to initiate ercising “local animal favored legislation wildlife regarding drive in an inter- special Coast and “East extremists” could S, the factfinder osition principle. requirement supermajority reasons, apart from had other standing she infer have do not Plaintiffs These pursuing an initiative. not Proposition speech is affected. obli- litigation, our stage of the But organiza- sure, her Ms. Brooks and 2. To favor all inferences gation is to draw campaign an initiative mount did tion contrary infer- to ask whether plaintiff, not between general elections during the three also be reasonable. would ences Prop- survey and enactment conducting the management in Utah should I deem together, Taken these affidavits estab- necessary.” Id. at 185. The Utah Envi- lish that the plaintiffs have more than an ronmental Congress, Plaintiff, another or speculative abstract interest in the out- “may decide initiate a wildlife ballot come of this litigation. They are actively initiative that Proposition 5 would harm.” involved in wildlife advocacy, have pre- Id. at 224. Two of the Plaintiffs empha- pared or supported wildlife initiatives size they would like to use the threat past states, in other allege of a viable initiative effort aas “bargaining present desire to use the initiative tool” in negotiations with wildlife officials. objectives. advance their Moreover, the Id. at At least at stage affidavits establish that the Plaintiffs have litigation when we must construe affi- been discouraged the supermajority re- light davits most favorable to the quirement from making specific plans Plaintiffs, these statements demonstrate introduce an initiative in the future. Cou- that the Plaintiffs —individuals and groups pled with the lack any doubt that the with a long history of advocacy— two-thirds threshold enforced, bewill are seriously considering mounting a wild- Plaintiffs have sufficiently alleged inju- management life initiative but are discour- ry in fact to withstand dismissal of their aged from doing so. complaint. Third, the Plaintiffs’ affidavits consis- tently point to the existence of the super- D. majority requirement as the they reason The Defendants argue also presently have specific no plans to bring a Plaintiffs have not alleged the invasion of a wildlife initiative in Utah. already As not- “legally protected interest,” say ed, Ms. that, Brooks maintains at present, is necessary to have standing to sue. she “will not attempt to initiate legislation They note that the First Amendment impose sound wildlife management “does guarantee political success” or practices because the supermajority re- imply a right to be supported, heard and quirement makes my Id. at efforts futile.” and that the supermajority requirement added). (emphasis Likewise, accord- “places no direct restriction on ing President, to its M. Waters, Dane of anyone” and leaves the Plaintiffs “free Initiative and Referendum Institute “will to engage in full and political robust any undertake campaign pertaining to speech.” Br. of Appellees 24-25. This wildlife measures [in Utah] because approach issue, to the however, confuses strong likelihood that such an would effort standing with the merits. added). at 234 (emphasis Mem- fail.” bers of For purposes the Fund for standing, Animals question “who live in Utah and wish to cannot be exercise whether the Constitution, their First prop- Amendment rights erly ... interpreted, ivill protection hindered extends to the ... by the plaintiffs excessive burden on passing a asserted right or interest. If wildlife protection test, Utah.” Id. were the every losing claim added). at 211 (emphasis And Mr. would Carter be dismissed for want standing. attests that “the prohibitive Take, language of for example, Valeo, Buckley v. [the supermajority requirement] so 96 46 L.Ed.2d 659 broad as to cause curiam). (We (per advocates steer clear could use unsuc- of wildlife advocacy ... to avoid futile cessful constitutional claim to illustrate the attempts and failed outcomes.” Id. at point.) The Buckley held, effect, added). (emphasis that there is no First Amendment right to

1093 standing in the work do some must est” contributions. campaign unlimited make however, that believe, We analysis.3 the Under 29, 96 S.Ct. at id. See meaning, a force independent say that term has theory, might one Defendants’ the door to “le- open has no any need benefactor campaign without would-be making jurisdictional unlim- at the interest” considerations merits protected gally Su- that the contributions, complaining thus person example, stage. For ited case the have tossed his crim should make will preme action government put But would standing grounds. standing on lacks difficult activity more inal standing horse. the before merits cart the protect “legally is not interest his because 227, 93, FEC, 540 U.S. v. McConnell See Arthur Wright, Alan 13 Charles ed.” See (2003) 491 619, L.Ed.2d 157 Cooper & Richard H. Miller, Edward R. the on depends way (“ in no ‘[Standing Procedure Freer, Practice Federal D. contention plaintiffs the merits (2d A Supp.2005). ed. 3531.4, § at 830 (quot- ....’” illegal conduct particular of the require enforcement suing to person 500)); Ass’n Warth, 422 U.S. ing standing, lacks neighbor his against law 397 Camp, v. Orgs. Processing Serv. Data by his adversely affected if he is even 827, 25 1, 90 S.Ct. n.&153 has conduct, no one because neighbor’s use of against (warning 184 L.Ed.2d prosecu interest legally protected “ pur- standing for test” ‘legal interest’ D., v. Richard Linda R.S. of another. tion the “goes to that it ground the on poses, 35 93 Prot. Envtl. merits”); City Waukesha (1973). plaintiff Finally, a (D.C.Cir.2003) 228, 235 F.3d Agency, preposter is so right legal claimed whose the question, (“[I]n standing the reviewing lack may frivolous legally be as to ous the to decide not must be careful court right is that the ground on standing against for or the merits on questions Handling See protected.” “legally not Info. assume therefore must plaintiff, vs., Automated Inc. Defense Ser be suc- would plaintiffs merits on the Servs., F.3d Printing claims.”). The in their cessful that, a motion to on (D.C.Cir.2003) (noting differs case in this claim conten dismiss, plaintiffs “a far- non-frivolous more it is only Buckley meaning of statute regarding tion ques- is a But its far-fetchedness fetched. purposes correct taken as must be For merits. on to be tion determined “effectively be court lest standing,” assume standing, we must purposes guise under merits validity. deciding See legal claim Plaintiffs’ (em standing” determining plaintiffs v. Salt Coalition Rights Animal Utah (10th plaintiff added)). But where Corp., phasis City Lake challenge, al plaintiff] legal Cir.2004) (holding “[i]f nonfrivolous [the presents injury such .... [t]he protected to a injury merits leging correct may it was ... small but courts been federal may have speech, the as free ”). theory standing on the ‘speculative’ lack of dismiss legally is not interest underlying that the argument Defendants’ appeal protected. inter- protected “legally term is that whether question concepts address criticizes treatise Wright & Miller

3. The Wright, Mil- a claim.” plaintiff has stated interest" protected "legally phrase Freer, Pro- ler, Practice Federal & Cooper question of beg the it seems ground that (2d Supp.2005). 3531.4, ed. § cedure and therefore validity the claim legal can and should this "mischief” We believe for mischief' opportunity ample "provide[s] standing avoided. tendency use "the common given In making protected their “legally inter- legally-cognizable interest” and therefore argument, est” the Defendants rely on could not show an injury fact, id. at Skrzypczak Kauger, (10th v. 92 F.3d 1050 Cir.1996). In Skrzypczak, plaintiff the Tellingly, although this Court has cited brought a First Amendment challenge to Skrzypczak several times in subsequent pre-submission screening of initia- ballot opinions, we have never treated Skrzypc- tives by the Oklahoma Supreme Court. zak as a standing decision—not even Id. at 1052. That court had determined “chilling effect” cases—and have instead proposed that her law, anti-abortion SQ relied on its reasoning in rejecting First 642, would violate the United States Con- Amendment claims on the merits. See stitution and therefore could not appear on Save Todd, Palisade FruitLands v. 279 the ballot. Id. alleged She pre- 1204, (10th F.3d (discuss Cir.2002) 1213 screening process submission chilled the ing Skrzypczak in of support proposi exercise of her First rights Amendment tion that “no right fundamental has been because “she would advocate the passage burdened,” but not questioning that SQ or defeat of if 642 it placed were on the plaintiffs alleged had protected “legally ballot.” See id. We found that plain- interest” for purposes jurisdiction). of tiff had “mistakenly conflate[d] her legally- rejecting a claim nearly identical to the protected interest free speech with her one advanced by the Plaintiffs in this personal desire to have proposed [the law] case, the D.C. Circuit relied on Skrzypc- on the ballot.” at 1058. Notwithstand- zak for the proposition that ing “the First pre-submission proce- screening imposes Amendment dure, no she restriction on the remained “free to argue against withdrawal of subject legalized matters from abortion” and “speak publicly initiative process.” on Marijuana other Policy issue.” Id. We carefully Project v. States, distinguished United Grant, 82, 304 Meyer v. F.3d 486 86 (D.C.Cir.2002). 414, 1886, Other courts 100 universally L.Ed.2d 425 (1988), have treated Skrzypczak is not a standing as a decision case but on merits, instead dealt with the not a scope standing substantive case. See Amendment, First Utah ground to Worship Co Safe Learn-Safe alition, Oklahoma Supreme State, Inc. Court had “done 94 P.3d 233 (Utah nothing 2004) to restrict speech: (citing neither Skrzypczak in support Skrzypczak anyone nor else has been si- conclusion that the challenged pro lenced pre-submission content review.” “do visions not limit free and do Skrzypczak, 92 F.3d at 1053. We conclud- not violate the First and Fourteenth ed that “[h]er right free speech in no Amendment free speech guarantees”); way depends on the presence of SQ 642 on Walker, Gallivan v. 54 P.3d the ballot.” Id. (Utah 2002) (Thorne, J., (“The dissenting) Tenth Circuit

Rather dismissed her than claim con dismiss the case for failure cluding that [Ms. to state a Skrzypczak] First claim, Amendment did not howev- er, have a constitutional Skrzypczak panel to have her dismissed the placed ease for lack ballot.”); on the standing. Raising Herring standing Cuevas, ton v. issue sponte sua No. 5806(SS), Civ. without the benefit of WL briefing (S.D.N.Y. the subject, at id. *8-9 Nov.10, 1997) we held that because the plaintiff (ordering supplemental briefing and law, “cites no and we none, find questions raising establish- concerning analysis ing right particular have a proposition Skrzypczak under the heading “Ques ballot,” on the she had “failed to assert a tions Merits”). Pertaining to the Indeed, 15%, chilled the usual elections, instead & Mil- Wright cited Skrzypczak Amendment First of their “[cjonfusion exercise example treatise ler Party Republican see also rights); Wright, See of N.C. standing.” of merits Cir.1992) (4th Martin, 3531.1, § Freer, supra, Miller, & Cooper a facial merits (reaching the n. 13. Carolina’s challenge North Amendment Skrzypc- conclude therefore We judges, court superior electing system case for dismissing the erred zak panel “[tjhe First although holding for failure than standing rather want partic right to guarantees Amendment. First the under a claim state not it “does process,” political ipate hereby overruled. respect, it In that success”); Washington political guarantee a varia- adopts dissenting opinion The (4th 913, Cir. F.2d 927-28 Finlay, 664 v. concern- argument the Defendants’ of tion First 1981) merits of facial (reaching the inter- protected “legally for a ing need the Columbia, South challenge Amendment dissent, allegations the According to est.” system, electoral at-large Carolina’s satisfy the “frequently” chilling effect of a right “[tjhe guarded carefully holding that requirement injury-in-fact any carry with not does expression criminal of threat accompanied to, sup believed listened C.J., Tacha, at ofOp. liability. or civil views”). think We in one’s ported has Supreme Court Because 1106. narrow view takes too approach dissent’s assert- a claim of the merits reached never flowing from consequences “other instills a action government ing “that a may serve that enforcement” the statute’s sense futility subjective of sense —in inju cognizable judicially as the basis desired have a speech will that one’s D.L.S., at 975. F.3d 374 fact. See ry in “does chilling effect of kind result” —this most sure, “chilling effect” cases To be cognizable aof an invasion not constitute by the threat deterred speech involve often at Id. legal interest.” neither liability. Yet or civil of criminal this consider Appeals of Every Court has held Court Supreme Court nor reaching the it, rejected argument standing when lack always plaintiffs to those virtually identical of claims merits chills allegedly challenged statute Wirz See here. by the Plaintiffs pressed clearest way. The other some (1st 271, 279 Galvin, 412 F.3d v. burger Keene, is Meese contrary to the example where Cir.2005) merits (reaching 107 S.Ct. constitutional a state claimed plaintiffs en- (1987), Court where to cer initiatives popular limiting provision challenge to a First Amendment tertained of chilled exercise subjects tain reg- certain imposed statute a federal Marijuana Pol rights); Amendment First require- disclosure istration, filing, and (reaching the at Project, icy who principals foreign agents on ments claimed the plaintiffs where merits Department that the films disseminate popu legal effect no giving law federal statutory defi- meet the determines Justice including subjects, certain lar initiatives stat- propaganda.” “political nition exer drugs, chilled legalization state by a California challenged ute was rights); Amendment First cise of their such several to exhibit wished who senator 1007, 1008- Johnson, 172 F.3d Wellwood any of the challenge He did Id. films. merits Cir.1999) (reaching the (8th not, (which did requirements registration Arkan claimed plaintiffs where him), claimed but event, pertain of 30% signatures requiring sas statute exhibiting the “deterred he was local-option petition on a voters films a statutory characterization of ning Meese, reelection. 481 U.S. at 472- ” films as ‘political propaganda.’ Id. 1862; Br. of Appellees 25; cf. (internal 107 S.Ct. 1862 quotation Op. Tacha, C.J., (characterizing omitted). marks The Supreme Court not the Plaintiffs’ claim as reducible to a ed that enforcement the statute “does of subjective “sense futility the sense —in not have a direct effect on the exercise of that one’s speech will not have a desired his rights; it does not result”). In recognizing plaintiff that the prevent him from obtaining or exhibiting in Meese standing, had the Court necessar- the films.” Moreover, held, ily rejected the narrow construction of “le- merits, on the that the plaintiff was not gally protected interest” that the Defen- protection entitled to against Congress’s dants and the dissenters seek to impose use the term “political propaganda.” this case. Id. at 480, 107 S.Ct. 1862. Nonetheless, The Supreme Court’s the Court held decision in alleged that the injury to McConnell, plaintiff 227-28, U.S. at chilling effect on his de —the sire to exhibit the which the dissenting films—-was a “cognizable opinion relies, - injury,” and specifically rejected see Op. Tacha, C.J., the defen 08, at 1107 is not argument dants’ that the claim to the contrary. There, constituted the Supreme only “subjective a chill” within the mean Court held (the that a group of plaintiffs ing Laird v. Tatum. Id. at 107 “Adams plaintiffs”) that included candi- S.Ct. Pointing to affidavits submit and dates their supporters who did not ted the plaintiff suggesting that exhibit wish to solicit or accept large campaign ing films officially to political deemed contributions, lacked standing challenge propaganda would hurt reputation his and the constitutionality of provision of the his reelection, chance for the Court held Campaign Reform Act that increased that “his situation fits squarely within hard-money limits and indexed them for guidelines” the[] of the Court’s standing inflation. McConnell, 540 U.S. at cases. 472-73, 107 Id. at S.Ct. 1862. S.Ct. 619. The reason plaintiffs those Meese that, demonstrates in cases, some lacked standing, however, was not First plaintiffs can assert their constitutional claim was wrong on the standing based on a chilling effect on merits. speech even where plaintiff the is not sub- First, the Adams plaintiffs claimed ject to criminal prosecution, civil liability, the increase in hard-money injured limits regulatory requirements, or other “direct them “depriving] them of an equal effeet[s],” id. at and ability participate in the pro- election where, even as we know from the Court’s cess based on their economic status.” Id. decision on merits, the the plaintiff has not 124 S.Ct. 619. In holding they asserted legal interest subject lacked standing to bring claim, this the judicial protection. ease, As in this the emphasized Court plaintiff that a chilling must al- on effect plaintiffs the exercise of lege the “invasion of a partic- concrete and Amendment rights arose entirely be- legally ularized protected cause the government’s injury,” action and that in labeling it the films had “never “political recognized a propaganda” legal right made com- parable undesirable for him to the exhibit and broad them. To injury diffuse use the language of the asserted by in the plaintiffs.” Defendants our Adams Id. case, “political propaganda” (emphases added). label made The Court distin- exhibition of the films less guished in]” several voting-rights “effective! cases advancing political his goals, including win- which the injury asserted was the denial of hand, Proposition Here, other on and Id. to the ballot “nondiseriminatory access desired Plaintiffs’ directly to the Id. applies voter.” for each vote equal single, man- enact wildlife seeking activity plaintiffs, voting-rights Unlike initiatives, personal alleged con- agement had plaintiffs Adams nothing to injury, do could individual the Plaintiffs choices particularized crete “curtail- general alleged a that effect. instead alter had but participation scope of standing doctrine recognize We Although the process.” electoral metaphysi- frustratingly sometimes “concrete discussed both Court’s Supreme quality, and cal “legal- and the requirement particularized” satisfy- seem always cases do not standing with- requirement, interest” protected ly however, case, this consistent. ing or requirement specifying out are organizations the Plaintiff where read satisfy, we failed plaintiffs Adams consti- of a state targets direct among the legal not on resting decision no doubts there change, where tutional breadth, but the claim deficiency of provision challenged whether about character and diffuse generality, them, where against enforced bewill contrast, Plaintiffs injury.4 By alleged satisfactory evidence they submitted have sufficiently con- alleged have case in this speech, we on their chilling effect they have injury: particularized crete concluding that circuits our sister join previously have demonstrated consideration claim warrants type allegedly type of engaged merits. requirement, supermajority by the chilled in such engage they desire that E. in- no present they have that but speech, that assert also The Defendants certainty the so because to do tention Standing for review. ripe is not be case will requirement supermajority “ in that ‘closely related ripeness enforced. harm asserted on whether focuses each claimed plaintiffs Second, Adams judi sufficiently to warrant matured injury” “competitive they suffered ” Valley Band Skull cial intervention.’ willing candidates against fundraising Nielson, F.3d v. Indians Goshute Id. campaign contributions. larger accept Cir.2004) (10th John (quoting rejected The Court 228, 124 S.Ct. 619. at n. 4 Missouri, F.3d son not “fair- injury was claim this Cir.1998)). ripeness evaluating (8th challenged statute. to the ly traceable” in case ‘whether is on focus “central plaintiffs’ on the effect Any indirect future contingent uncertain volves by the caused was position competitive anticipated, not occur may events ‘wish’ personal “their own by law but ” New all.’ at not occur may or indeed contributions.” accept large to solicit immedi- rabie,” omitting the words but reading of McCon- dissent criticizes 4. The injury diffuse broad and "to the ately follow: nell, discussion Court’s arguing the at 1107 id. plaintiffs”); by Adams asserted "legally plaintiffs’ claims rests Adams by injury claim "[t]his (quoting the words re- requirement, not the interest” protected .,. cogni- legally ... not to is plaintiffs particularized” a "concrete quirement of first omitting Court’s right,” but C.J., zable Tacha, its Yet at Op. of injury. plain- "a legal standard: formulation sim- dissent opinion, the quotations from aof an invasion injury alleged must tiff's our we base language ply omits legally protected particularized concrete (quoting the reading. id. contrary See interest”). compa- legal recognized a "never words Mexicans Richardson, Bill “may not be generate able to interest, 1499 (quoting 13A Charles Wright, Alan support, or [passage]” for a wildlife initia- Arthur R. Miller & Edward H. Cooper, tive even under a majority rule. Br. of Federal § Practice and Procedure at Appellees Thus, 26-27. the Defendants (2d ed.1984)). As the Defendants argue effect, relief in this lawsuit is point out, ripeness doctrine reflects not neither sufficient nor necessary for Plain- only limits jurisdiction on the of federal tiffs to achieve objectives. courts under Article III but “important Both versions of argument miscon- prudential limitations” may “require ceive the nature the Plaintiffs’ alleged us to stay our hand until the issues in [the] injury. alleged Plaintiffs’ injury is not the case have fully become more developed.” difficulty securing passage of a wildlife Morgan McCotter, 365 F.3d initiative, but the chilling effect of the su- (10th Cir.2004). permajority requirement on their exercise The ripeness challenge fails here of free speech rights. Whether that because the Plaintiffs’ alleged injury is properly framed as a free issue already occurring. According to the Com (in questionable section, next we con- plaint, the supermajority requirement for not), clude it is but redressability is not in wildlife initiatives, by its existence, very doubt. Declaratory injunctive relief chills the exercise of the Plaintiffs’ First against the enforcement the superma- Amendment rights. The injury is not the jority requirement, if granted, would re- defeat particular of a initiative, or even the move any chilling effect caused the two- greater difficulty faced groups like the thirds threshold for wildlife initiatives and Plaintiffs who decide to mount an initiative thereby put stop to alleged continu- campaign, but the dampening effect of the ing injury. supermajority requirement on advocacy of Because some of the Plaintiffs have al- a wildlife initiative. Assuming for the mo leged a judicially cognizable injury fact, the Plaintiffs’ legal theory is ripe for review and redressable through correct, their alleged injury does not de the requested, relief it is not necessary to pend on uncertain, contingent future determine whether other events, Plaintiffs who and the courts would gain nothing presented have the request same by for allowing relief the issues in the case to devel have done so. See Cal. op Bankers further. Ass’n v. Accordingly, the controversy Shultz, 21, 416 44-45, U.S. ripe is 94 adjudication. 1494, for (1974); L.Ed.2d 812 Southern Utah F. Wilderness Alliance v. Bureau Land Mgmt., 735, (10th 425 F.3d Cir.2005). Finally, the Defendants make an argu- We affirm the judgment ment based on the district redressability, require:- court denying ment that a Defendants’ motion favorable to judgment would dismiss lack jurisdiction. meaningfully redress the alleged injury.

Lujan, 504 568-69, U.S. at 112 S.Ct. 2130. III. The First Amendment Claim They make a two-pronged attack: if even the supermajority requirement The is Plaintiffs not contend that Utah’s su- struck down, the Plaintiffs permajority could requirement still deters them achieve enactment of a wildlife by exercising initiative their speech rights by making winning 70% vote, while if it is wildlife initiatives less likely to succeed. down, struck there still would no guar- be We consider four alternative variations of success, antee of because the (1) Plaintiffs the claim: that the supermajority re- laws other down struck This Court speech, political core burdens quirement accom that speech political scrutiny; regulating subject to strict therefore and Consti Am. drive. See an initiative expres- panies burdens (2) requirement that the Found., Meyer, v. to Inc. subject Law tutional conduct, is therefore and sive Cir.1997) (10th re- (3) 1092, that 1100-05 scrutiny; F.3d intermediate Am. Buckley v. ”), the basis (“ACLF nom. sub discriminates quirement aff'd Inc., Found., that viewpoint; Law or content Constitutional (1999). be overbroad, must 142 L.Ed.2d requirement 119 S.Ct. with disagree require We invalidated. included facially at issue provisions The claim, affirm regis variation circulators petition each that super- that conclusion petition court’s voters, district requirement tered implicate not does requirement majority and certain badge, name awear circulators all. pro to applicable requirements reporting in Like the law an initiative. ponents A. specifically laws these Meyer, validated most strenu argue The Plaintiffs advocacy itself: process of regulated requirement supermajority ously that (only speak could who laws dictated making by speech” “core political burdens vot registered circulators volunteer aof passage to secure more difficult (with speaking ers) about to go how us ask They therefore initiative. reports). subsequent badges name invalidating scrutiny, strict apply protects First Amendment Although narrowly tailored it is unless provision initiative to an incident speech political interest. state compelling serve right protect it does campaign, undoubtedly pro- First Amendment The In otherwise. law, initiative make at- typically speech political tects Todd, 279 FruitLands Palisade Save as it does just campaign, an tends Cir.2002), (10th consid- we political other to influence intended speech to a Colorado challenge speech a free ered Grant, Meyer decisions. of “home the citizens allowed law did but legislation, to initiate counties rule” Supreme (1988), example, of “statu- citizens right to not extend law a Colorado down unanimously struck “the held counties. We tory” any person pay felony to it a made implicated ... [is] free pro- petition. an initiative circulate procedure, an initiative creation state’s initia- signatures requesting cess regu- attempts the state’s only by but reasoned, ne- “of the Court petition, tive with associated speech late of a expression both cessity involves added). (emphasis 1211 Id. at procedure.” a discussion change political desire rejected we Skrzypczak, Similarly, Id. change.” proposed of the merits of pro- First that the argument “in- therefore It 1886. 421, 108 S.Ct. pre-submis- engaging from a state hibits communica- of type interactive volves petitions. screening content sion ap- change that political concerning tion Mey- (finding 1053 F.3d at 92 Skrzypczak, political ‘core described propriately pre- that ” the fact despite “inapposite,” er 1886. 421-22, S.Ct. 108 Id. at speech.’ might an initiative screening of submission speech, political core restrict Laws law, because becoming it prevent “exacting held, subject restrict nothing to screening “do[es] citi- they leave or scrutiny”&emdash;whether anyone nor plaintiff] [the neither speech: them disseminate means “other zens silenced”). The distinction has been else 424, 420, S.Ct. 108 Id. at ideas.” 1100

between laws regulate or restrict the voices who will convey speakers’] [the mes communicative persons conduct of advocat- sage and, ... therefore, limit[ed] the size ing a position in a referendum, which war- audience can reach.” Meyer, rant strict scrutiny, and laws that deter- 423, 486 U.S. at 108 S.Ct. 1886. The stat process mine the by which legislation is ute thus had “the inevitable effect of re enacted, which do not. ducing the quantum total of speech on a public issue.” Id.

Other But courts there is have drawn crucial the same dis difference tinction. between a law Marijuana that has Policy the “in Project v. evitable States, effect” of reducing speech United 82, (D.C.Cir. 304 F.3d because 84 2002), restricts or regulates speech, D.C. Circuit and a considered a law First that has the Amendment challenge “inevitable effect” reducing federal law that speech barred because it voters in the makes particular District of speech Columbia less likely from passing to succeed. See Riley citizen-initiated legislation v. Nat’l Fed’n legalize N.C., would Inc., or Blind reduce penalties 487 U.S. 781, 5, the possession, use, n. 2667, distribution (1988) substances, controlled (stressing but permitted the difference be initiatives on tween many “a subjects. other statute regulating how a speaker rejected court claim, may speak” and a finding no statute author with a “com ity for suggestion pletely incidental impact” “limits on legis on speech, which lative authority opposed does not implicate to limits on the First Amendment); —as legislative advocacy Cohen Co., Cowles Media —-violate Amendment.” 671-72, at 85. Similarly, 115 L.Ed.2d 586 Eighth Circuit in Johnson, Wellwood v. (rejecting a challenge to a state (8th F.3d 1008-09 Cir.1999), application court’s up of promissory estoppel held an Arkansas law required to a newspaper’s promise 30% of anonymity to local voters to sign petition for a source, confidential “local- in part because option” (an ballot initiative effect on initiative “to First Amendment freedoms was change a county from ‘dry’ ‘wet’ to “self-imposed,” vice “no more incidental, than versa”), required but only 15% of voters to constitutionally insignificant”); sign petitions on other subjects. The Ass’n, Ukrainian-American Bar Inc. v. court found Meyer Baker, “inapposite” 893 F.2d (D.C.Cir.1990) the heightened (“The requirements “in no way right to speak protected by the first burden the ability of supporters not, amendment is however, local- a right to be option elections to ....”). make their heeded views heard.” Id. at 1009 (relying on Dobrovol Under the Plaintiffs’ theory, every ny Moore, (8th structural feature government Cir.1997), which held that “the difficulty of makes some political outcomes likely less [initiative] alone is insufficient than others—and thereby discourages implicate the First Amendment, as long speakers some from engaging protected as the communication of ideas associated the First Amendment. —violates with the circulation of petitions is not af Constitutions and of procedure rules rou- fected”). tinely make legislation, and thus advocacy, The Plaintiffs’ argument takes on some of subjects certain difficult more by re- the language in Meyer out of context. quiring The a supermajority vote to enact bills held, for example, that the ban on subjects. certain Those who propose, payment for circulators restricted political for example, impeach to official, an over- speech because it the “limit[ed] number of veto, ride a expel a member of the legisla- in sincere are Plaintiffs the doubt No con- to have might treaty a ratify ture, or statements many sworn or their one of members of the two-thirds vince for threshold heightened the find accordingly. State to vote houses both “marginal- and feel dispiriting, re- initiatives supermajority attach constitutions Proposi- of wake spe- of array or “silenced” bewildering ized” to a quirements begins, claim ap- including Their constitutional 5. tion legislation, of categories cific misunderstanding. bills, levies, bonding however, a basic bills, from tax propriations all ensures salaries Amendment First regulations, The use debts, land officials, heard; it does' not district may be of view of state discipline points judicial equally are redistricting, and of points view all ensure formation su- a imposes California likely prevail. to administration. of approval requirement

permajority Code B. Gov’t Cal. compacts. gaming su- imposes 12012.25(b)(2). Hawaii § the an next to alternative turnWe permit to requirement permajority a recent deci in was embraced ory, which plants power nuclear of construction subject- First Circuit: of sion Haw. material. radioactive disposal initiative limitations matter Const, employs XI, § Minnesota 8. art. con expressive restrictions to amount control to requirement supermajority interme subject to are therefore duct, and law.” banking any “general enactment Galvin, Wirzburger scrutiny. diate Const, uses Oregon IV, § 26. art. Minn. Cir.2005), First Cir (1st 412 F.3d to difficult it more make to device chal First Amendment considered cuit criminal in certain reductions institute Massachusetts to lenge provisions Const, IV, § 33. art. Or. sentences. initia ballot prohibited Constitution supermajority requires Carolina South calling for initiatives subjects: on two tives state flags at unauthorized display to pri private support financial “public § 10-1- Ann. building. S.C.Code capítol schools,” initiatives secondary mary or have provisions presumably These 160. “ practices religion, religious to ‘relate[d] to- reducing effect” ” “inevitable 274-75 Id. at institutions.’ religious discouraging speech” “quantum tal 18; id. art. amend. Const. Mass. (quoting general plants, power of nuclear advocates 2). recognized, court 2, § 48, pt. art. flags state laws, or unauthorized banking denomina have, the “common as we ini- legislation bothering to seek from governing laws striking down tor” eases if it Yet views. embodying tiatives restric direct “a process was initiative remove to Amendment the First violates aspect communicative on the tion or- vicissitudes issues certain therefore It Id. process.” political constitutions politics, dinary democratic scrutiny. strict apply declined Indeed, unconstitutional. themselves First finding the Instead iron- have theory would Plaintiffs’ ap- however, the court wholly inapplicable, they seek relief rendering the ic effect United scrutiny under intermediate plied under unconstitutional litigation 367, 88 S.Ct. O’Brien, States is unconstitu- if Amendment: the First (1968). According 1673, 20 L.Ed.2d constitution the Utah amend tional Con- Circuit, Massachusetts a wild- approve supermajority require conduct”&emdash;the “expressive banned stitution an such favor who initiative, those life petition&emdash;that bringing act of engage likely less would amendment (one-on-one commu- both involved its favor. advocacy in nications) nonspeech (lawmaking) ele- less likely produce results. See ments. Wirzburger, 412 F.3d at O’Brien, 278-79.5 376-77, U.S. 88 S.Ct. 1673 court ultimately upheld the subject- (criminal penalties for draft card mutila- matter exclusions constitution, the state tion); Texas v. Johnson, but only because it found that govern- (1989) (crimi- ment had an important “in interest main- nal penalties flag for burning); Clark v. taining the proper balance pro- between Community Non-Violence, Creative moting free exercise and preventing state 82 L.Ed.2d establishment of religion,” and that (1984) (restrictions on camping in na- limitations on ballot measures restricted parks). tional speech no more than necessary to serve The First Circuit averred could that interest. Id. at 279. Presumably, oth- how, given “see Supreme Court’s subject-matter er restrictions on citizen analysis in Meyer, subject-matter exclu- initiatives would seem less worthy, and sions from a state process ‘re- would fail pass intermediate scrutiny. ” ] no speech.’ strict[ Wirzburger, 412 Perhaps Wirzburger is distinguishable. F.3d at 279 (criticizing Marijuana Policy The Massachusetts Constitution flatly pro- Project, 85). 304 F.3d at The court ex- hibited initiatives on certain subjects, and plained that “[t]he power communicative thus arguably “restricted” speech more se- an initiative stems precisely from the fact verely than the supermajority requirement that it is just speech; it is in this case. But only this is a difference that can lead creation of new laws or in degree. The chilling effect from a total constitutional amendments.” Id. at 277. ban may greater than the chilling effect It follow, does not however, that constitu- from a supermajority requirement, but tional provisions making the enactment of they raise the same First Amendment is- particular types of law more difficult are sue. therefore speech. restrictions of For rea- any event, we disagree with Wirzbur- sons forth set previous section, the ger premise ’s that a state constitutional problem with protecting impact restriction on permissible subject mat- speech, instead of simply protecting ter of citizen implicates initiatives the First speech, is that no one ahas under the any way. The intermediate First Amendment to be taken seriously. scrutiny standard of O’Brien applies to Like the Plaintiffs’ argument for strict laws restrict “expressive conduct” scrutiny, the First argument Circuit’s such as flag burning, nude dancing, or intermediate scrutiny is fundamentally at sitting at a segregated lunch counter. See odds with the idea of constitutional limita- Heideman v. South Salt Lake City, 348 tions on the democratic process. All such (10th Cir.2003). It does limitations make certain types of advocacy not apply to structural principles gov- less likely to “lead to the creation of new ernment making some outcomes difficult laws”; it does not follow that all such or impossible to achieve. Each of the limitations are challengeable under “expressive conduct” cases cited by the First Amendment. First Circuit involved statutes prohib- ited expressive conduct, not statutes that The First Circuit’s analysis may appear made the expression persuasive less or more appealing, first, than the Plaintiffs’ 5. The First explicitly Circuit declined to fol- find agreement ourselves in with the D.C. low the contrary opinion of the D.C. Circuit in Circuit rather than the First. Marijuana Policy Project, 304 F.3d 82. We the assume judges, sentatives, not limi- matter subject specific that argument subjects should which determining of task and referendum initiative on the tations change. democratic certain almost to the insulated subject be are process scrutiny. Intermedi- strict of invalidation requirement supermajority the Because middle a moderate scrutiny seems ate conduct,” any “expressive restrict does scru- intermediate arguably, But ground. scrutiny apply intermediate to decline we especially an context, would in this tiny, O’Brien. under authority the with interference egregious constitutional adopt to People” of “We C. or ini- legislative governing provisions Utah’s challenge also Plaintiffs The the First According to process. tiative for wildlife requirement supermajority constitutionality provision of a Circuit, the impermissible initiatives management on depends initiative limiting that Legislation discrimination. content whether of assessment court’s federal taking limit, prohibit “allow, or would power on the restriction given of or method for or the season wildlife of govern- a “substantial serves people of the of approval wildlife,” must win taking ap- That at 279. Id. interest.” mental on voters, legislation while of two-thirds the vir- of an assessment involve to pears only com need subject any non-wildlife initiatives particular vices tues and VI, art. Const. See Utah majority. amand limitation. by the are affected argu with this l(2)(a). problem The § Circuit the First example, for Wirzburger, content on prohibition is ment challenged limitation upheld the ultimately regulations to only applies “prop- discrimination maintaining ground on al we have As expression. or speech and of the establishment between balance” er re supermajority important. explained, religion ready is of free exercise regulation of think is would the court here what issue knows quirement one No issues, gam- regulation involving bond process, legislative restrictions flags. state contracts, or unauthorized ing expression. speech or system our which The foundation explained has Supreme The is erected been has constitutions written determining con inquiry principal “[t]he to original have people “the govern whether ... neutrality tent government, future establish, their regulation adopted shall opinion, as, in their principles such message with disagreement happiness.” own to conduce most Racism, 491 Against Rock conveys.” Cranch) (1 Madison, 5 U.S. Marbury v. case, it In this 791, 109 S.Ct. add (emphasis 2 L.Ed. 60 dis provision whether tell hard to appro tasks less ed). few imagine canWe or viewpoint, the basis criminates deciding than courts federal to priate subject matter. the basis merely on serve limitations constitutional state which to initiatives equally applies provision interests” governmental “important those as to wildlife taking of “allow” could basis what not. On do Utah If the it. “prohibit” “limit” people conclude court federal decided authorities management adop erecting barriers justified Proposition 5 hunting, prohibit restrict aid allowing financial referenda tion of pro-hunting it difficult make would to those but not religious schools private initia through the redress obtain forces or wildlife laws banking general involving hand, some other theOn process. tive our form Under practices? management tar- was provision that the exists evidence repre- and their people government, view&emdash;that geted at a particular point of er it discriminates on the basis of view- the “East special Coast interests” who point is therefore beside the point. supposedly seek to change Utah’s animal protection Moreover, laws. the two-thirds D.

threshold works to the advantage of the quo. status precedent Some suggests this Finally, the Plaintiffs challenge the su- may make it viewpoint discriminatory. permajority requirement overbroad, See Velazquez v. Legal Servs. Corp., 164 and argue that it “creates a chilling effect 757, (2d Cir.1999) F.3d 770 (finding that a on speech and association pro- which is provision “clearly seeks to discourage chal found, real, and material.” Appellants’ lenges to the status quo” and therefore Opening Quite Br. 39. apart from its ef- “discriminates on the basis viewpoint”), fects on initiatives, the Plaintiffs aff'd, 533, U.S. 1043, S.Ct. 149 argue, Proposition 5 has chilled (2001). L.Ed.2d 63 (1) two ways: it has deterred wildlife advo- Ultimately, Proposition whether cates from threatening to peti- launch a discriminates on the viewpoint basis of tion; or it has proponents cowed subject matter is irrelevant. To qualify as initiatives on other subjects, who fear “sim- a content-based “regulation of speech,” a ilarly harsh treatment legisla- state statute must restrict speech or expressive ture and the Governor.” Thus, Id. at 41. conduct in the first place. See Asociación the Plaintiffs argue, even if applica- some de Educación P.R., Privada de Inc. v. tions requirement permissible, Echevarria-Vargas, 84-85 the statute “reaches a substantial amount (1st Cir.2004) (rejecting plaintiffs’ ar of constitutionally protected conduct” and gument that a protection “consumer regu must be invalidated. Id. at 40. lation” requiring disclosure of information about changes school textbooks amount The overbreadth doctrine is an ed to a content-based restriction it exception to the “traditional rule” concern “does not purport to address the content ing facial attacks “that ‘a person to whom of speech; nor does it purport regulate a statute may constitutionally applied be all”). speech at Many provi constitutional may not challenge that statute on the sions, both state federal, discriminate ground that may conceivably applied on the basis of viewpoint without being unconstitutionally to others situations deemed to violate the First Amendment. ” not before the Court.’ L.A. Police Dep’t The Cruel and Unusual Punishment v. United Reporting Publ’g Corp., 528 U.S. Clause, for example, makes it difficult to 32, 38, 120 S.Ct. 145 L.Ed.2d 451 pass laws resurrecting the use of thumb (1999) (quoting Ferber, New York v. or screws ear cropping, but not to pass U.S. 73 L.Ed.2d laws promoting humane prison conditions. (1982)). In cases involving statutes Undoubtedly, this favors one viewpoint on that “regulate proscribe speech,”

punishment and disfavors another. But traditional relaxed, rule is the Cruel and because of the Unusual Punishment Clause risk that people might restriction on refrain speech, from exer and need not undergo cising their rigors First Amendment rights “for scrutiny. fear of Similarly, criminal sanctions supermajority provided re by a quirement at issue here statute susceptible determines application pro conditions under which tected expression.” citizen-initiated Gooding Wilson, legislation becomes law. It not regu does 518, 520-21, late speech expressive conduct. (1972). Wheth- L.Ed.2d 408

H05 require- supermajority opinion no doctrine The overbreadth Amend- the First not violate su- does Because the to this case. application with re- dissent regulate ment, respectfully I does but requirement permajority Plaintiffs the First that the not violate the conclusion it does gard speech, Amendment 113, (2003) overbreadth lation amount ted)). The Plaintiffs’ sweep” make on court. is (holding First of nothing more (internal statute their the statute’s protected See rights challenge S.Ct. Amendment Virginia that a own behalf. “punishes a quotation 2191, speech, plaintiff “overbreadth” persons than must demonstrate v. plainly 156 Hicks, argument a restatement judged in marks Because bringing not before substantial legitimate 539 n argu omit U.S. 148 re an have ment claims.1 fact must invasion proved tual hold tected constitute (10th or imminent.” is for standing to first interest. concrete, Health aof purposes the Plaintiffs’ Cir.1997). and legally an To establish foremost particularized, press invasion Shalala, 122 F.3d of Nat’l protected In this standing, their First alleged establish Council aof case, an legally interest injury does injury “a Amend- for I would ^{[3] [1]} party pro- 878, Im- ac- ^[2] an in no presents requirement supermajority matter, highly doubtful isit initial As an will itself statute that the danger “realistic anything alleged have Plaintiffs First recognized compromise significantly Neverthe- chill.” “subjective than more Members protections,” Amendment of because otherwise holds less, majority Vin Taxpayers A. v. L. City Council in prepara- (1) past conduct the Plaintiffs’ 2118, 800-01, 104 S.Ct. cent, initiatives of wildlife support tion (1984), the overbreadth L.Ed.2d 772 do they would inference that supports Re See United applicable. is not doctrine (2) suggests future, the evidence in the so Publ’g, 528 U.S. porting management wildlife to mount a desire in overbreadth an engage (refusing to Utah, in campaigns initiatives an “not law was challenged analysis stands requirement voting supermajority in engage anyone’s abridgment pursue plans any specific way of speech”). 1090-92. Op. at Maj. initiatives. similar has single Plaintiff puzzlingly, Yet Conclusion IV. initia- management brought wildlife ever Plaintiffs’ each find we Because Plaintiff single Utah, nor in tive as a flawed theories First so now to do plans concrete any elucidated law, the decision affirm we matter correctly majority As the future. or in the fail- case for dismissing court district precisely us tell do not “Plaintiffs notes: judgment of claim. state a ure to when; bring, they would initiatives what AFFIRMED. court is district certainty about they claim nor do doNor at 1091-92. Maj. Op. TACHA, Judge, Circuit Chief intentions.” an KELLY, Circuit us so much give EBEL dissenting. even the Plaintiffs may or the dissent. in joining A Judges, future intimation. precisely undertaken may not be part. dissent part I concur situa- hypothetical conjectural type majority with I concur Specifically, Nevertheless, III of join Part I appeal. course, I conclude 1. Of speak may that the opinion so majority reaching the standing, have do not Plaintiffs issue. important clearly this more disposition of unnecessary to the merits tion that fails to confer standing. See the “chilling effect” in order to determine Lujan v. Wildlife, 504 U.S. Defenders whether an constitutes invasion to a 555, 560, 119 L.Ed.2d 351 legally protected interest. See D.L.S. (1992).2 Utah, (10th Cir.2004) The majority characterizes the Plain (stating that to amount injury, tiffs’ injury chilling as “a effect chilling effect “must arise objec from an suppox-t initiatives in Utah.” justified tively fear of real consequences”). Maj. Op. at 1088. But the mere claim of For example, frequently cases, in “chill” not, Amendment “chill” is and has First Amendment activities stymied by been, never sufficient to establish an injury a ci'edible threat of criminal prosecution. Tatum, fact. See Laird v. See, e.g., Babbitt v. United Farm Workers 13-14, 2318, 92 S.Ct. 33 L.Ed.2d 154 Union, Nat'l 289, 442 298, U.S. 99 S.Ct. (“Allegations subjective of a ‘chill’ are not 2301, 60 (1979); Pac. Frontier L.Ed.2d 895 an adequate for substitute a claim of spe v. Pleasant City, Grove 1221, 414 F.3d cific present objective harm or a threat of (10th 1229 Cir.2005); Utah, Ward v. 321 specific harm.”); future Nat'l Student 1263, (10th F.3d Cir.2003); 1267 Wilson v. Ass’n v. Hershey, 1103, F.2d 1113— Stocker, 943, (10th 946-47 Cir. (D.C.Cir.1969) (“not ... every plain 1987). Other examples “chill” include that tiff who alleges a First chill Amendment is by caused see liability, threat civil ing effect and shivers court has thereby New York Sullivan, Times v. 254, 376 U.S. established a case or controversy.”). 710, 84 S.Ct. Rather, (1964), “[cjhilling effect is cited as the reason “chill” why that governmental by is imposition caused the threat is invalid rather than the harm damage personal to which professional entitles repu plaintiff to challenge it.” United Pres tation, see Keene, Meese 465, 481 U.S. byterian Church in the U.S.A. v. Reagan, 473, 1862, 107 S.Ct. (1987). 95 L.Ed.2d 415 738 F.2d (D.C.Cir.1984), potential These harms ai*eall properly rec

Be that may, ognized as it when confronted with invasions of protected legally an assertion of First “chill,” interests that give rise to a cognizable we must look to the underlying cause of claim of First Amendment “chill.” 2. None of the suggests evidence actual or ficity as any particular to contemplat- actions injury. imminent General statements from ed. organizations they accomplish their aims Although the standing inquiry was resolved through initiative legislation, and have dismiss, on a motion to the district court also states, done so in say other nothing about properly considered affidavits which should present bring intent to similar initiatives in have incorporated specific supporting facts Utah. fact The that one of the helped Plaintiffs standing. Seldin, 490, See Warth v. public commission opinion survey of 502, 95 S.Ct. (1975). 45 L.Ed.2d 343 Utah voters to consider feasability of a The Plaintiffs had the burden of sufficiently ballot initiative years seven before alleging facts concerning standing; Lujan, passage of the supermajority requirement, 2130; 504 U.S. at 112 S.Ct. the facts did suggests just opposite plans current —no thereby materialize warranting dismissal pursue such an initiative. The Plaintiffs' complaint. Warth, See 422 U.S. at 502. foreseeing statements the use of such initia- While the facts must be light construed in the (either tives for purposes substantive or as a Plaintiffs, most favorable to the we are re- tool) bargaining when, omit the obvious: quired to only consider reasonable inferences. Likewise, where and for what? the state- view, my is it unreasonable to conclude ments various they Plaintiffs—that will not that the Plaintiffs have standing because ini- participate in the wildlife tiatives pursued states, have been in other because the supermajority requirement makes because the strong Plaintiffs hold opinions -simply lack speci- semblance of about these issues. futile— “nature and Turning to the this “chill” the Plaintiffs’ cause of asserted,” Court of the claim fundamentally source different however, is case, legal recognized it had “never Enforce- noted cases. aforementioned allegedly injury to the requirement comparable” supermajority distin- Id. It ability pass plaintiffs. Plaintiffs’ suffered may diminish is not what cases voting-rights prospect prior but guished legislation, unwillingness “mis- on them reliance Plaintiffs’ plaintiffs’ causes called the the cause contrary, empha- on to To the went The Court speak. Id. placed.” subjective Plaintiffs’ unwillingness trade’ does “[pjolitical 'free size out on speaking participate determination who that all necessarily require energy time worth their is not matters so with marketplace do political initia- passing line drawn unless (quoting equal resources.” exactly here, they want where precisely tive is it— Citizens Mass. Comm’n Fed. Election Unlike at 66%.3 than rather at 50.1% Inc., Life, plaintiffs cases in “chill” typical Therefore, (1986)). 616, 93 L.Ed.2d consequences of real threat credible face a claim “[t]his concluded regulated engage choose if ... not plaintiffs ... by the injury only arises “chill” conduct, case the in this and it dismissed right,” cognizable legally fu- sense of subjective Plaintiffs’ the standing. Id. for want suit the speech. efficacy of their to tility as the majority as- the language, this Despite a simi- faced Indeed, Court Supreme the specify wheth- not did the Court that serts injury in derived subjectively lar claim standing lacked plaintiffs the er Commis- Election v. Federal McConnell partic- and “concrete allege a to they failed 93, 124 S.Ct. sion, injury injury or because ularized” that in (2003). plaintiffs interest.” protected “legally not to was challenge protection equal raised an case the “read[s] therefore It at 1097. Maj. Op. contribution campaign in increase to an legal defi- the not on resting as decision the that injury was claimed Their limits. breadth, the claim but of the ciency ability equal of an them “deprive[d] statute the character diffuse generality, based process in the election participate to I at 1097. Op. Maj. injury.” alleged status.” economic on their demonstrates, despite Citi- example thisAs na- the Organi- underscores further hypothetical 3. A Amend- of First Organization’s claims zens' injury. Citizens’ Plaintiffs' of the ture "chill,” to Or- reality that Citizens’ the initiative is to use the wishes ment zation Proposi- Polling Proposition X reveals Proposition promote X. pass to ganization's desire thirty percent supported by only simple X will operation of the by tion not hindered is Organiza- Citizens' population of Utah. of the subjective by its requirement, but majority requir- procedure the election that claims tion advanc- merits economic calculation passage "chills'' majority vote for simple ing a fulfilling ain may result that ing a cause approach, majority's Under the speech. its majori- hypothetical, in the As outcome. legally aof an invasion "chill" Constitutes alleged the Plaintiffs' ty's here conclusion Organization Citizens’ protected interest only fact injury in constitutes "chill” challenge proce- standing to have would implicit as- accepts the if one sense makes it has credibly alleges that it long as so dure elec- expectation that Plaintiffs' sumption past, process in in initiative engaged protected interest. legally efficacy is a toral Proposition X bring to present desire its states however, sup- find does not assumption, voters, presently This that it claims before case law. port to do so because no intention require- majority threat” "credible be enforced. will think, however, that the Court said what it above, As noted we dismissed suit said, meant and meant what it and that the for lack of standing. We held that Ms. Court’s holding that plaintiffs’ alleged Skrzypczak had not established an injury injury is “not to legally cognizable right” fact because her ability to express her requires interpretation. opinion no was impaired pre-sub- review, mission therefore, she had In part majority because the reads failed to allege an injury to a legally pro- McConnell holding plaintiffs tected interest: to failed allege concrete and particular- Skrzypczak mistakenly conflates her le- injury, ized able overrule this gally-protected interest speech free Court’s decision Skrzypczak Kauger, personal with her desire SQ to have (10th Cir.1996). Al- on ballot. removing SQ 642 from though years decided seven before McCon- ballot, Supreme Oklahoma nell, Skrzypczak undertook the type same has not prevented Skrzypczak from of analysis and denied plaintiff stand- speaking on any subject. She is free to ing when she failed to allege the invasion argue against legalized abortion, to con- of a legally protected interest. Id. at 1053. tend pre-submission content review case, In that Ms. Skrzypczak argued of initiative petitions unconstitutional, ability her speak her mind on the speak publicly other issue. issue of abortion was curtailed by the Her free way no de- Oklahoma law subjected pro- pends on presence SQof 642 on the posals to constitutional prior review Moreover, ballot. law, she cites no their placement on the ballot. Specifically, none, we find establishing a right proposal after a criminalizing most abor- particular have a proposition on the bal- tions was found Supreme Oklahoma lot. Court to incompatible with the Consti- Skrzypczak, 92 F.3d at 1053. tution and was prohibited therefore from Although Skrzypczak say did not so ex- put being popular vote, a Ms. Skrzypc- plicitly, the clear import of that case was zak challenged the Oklahoma Supreme that because the source Ms. Skrzypc- Court’s decision as an impermissible prohi- zak’s unwillingness speak was Ms. bition on speech. Significantly, her Skrzypczak herself rather than the threat injury claimed was solely based on allega- of actual consequences if she did in fact tions that she would have advocated for speak, she had not alleged any invasion of the passage or defeat of the proposition a legally protected interest. By compari- had it placed been on the ballot. Id. at son, standing exists in “chill” cases that 1052. typical Unlike initiative regulation involve a double edged-sword where indi- cases involving First Amendment claims, seeking viduals to exercise First Amend- Ms. Skrzypczak specifically denied in- face, ment rights for example, criminal or volvement in the place effort to the initia- civil liability or damage personal tive on the ballot. She merely alleged that professional reputation, and therefore decision the Oklahoma Supreme must choose between engaging in reg- Court constituted prior restraint on her ulated and suffering the conse- speech because she wanted to engage in quences or remaining silent. speech activity related to the proposed Amendment standing jurisprudence recog- initiative. nizes that neither result is desirable.4 But notes, 4. As the majority this insufferable only an injury. inchoate Maj. Op. See choice precisely why plaintiffs have stand- ing in "chill” cases despite presence

1109 Skrzypczak, now overrules majority presented Skrzypczak in at issue law cannot be wheth- question that arguing not chose Skrzypczak Ms. choice. no such Con- violates the action defendants’ er the a fear not because on abortion to speak test, that were “[i]f because stitution might consequences of enforcement be dismissed losing would every claim right, her exercised if she to her accrue at 1092. As Maj. Op. standing.”6 want find she would because rather but above, misses argument discussed satisfying personally issue speaking al- Again, Skrzypczak. behind reasoning ballot. on the discussed specific Skrzypczak though the Court without prohibited law Oklahoma inva whether establish not sufficient That is case was of the the real focus speech, interest because protected a legally sion thereof) (or lack consequences protects nor guarantees neither law she exer- Skrzypczak Ms. befall would satisfaction. personal interest plaintiffs rights: We her First cised S.Ct. McConnell, U.S. at Cf. Skrzypczak had Ms. concluded in com interest (no protected legally interest protected legally alleged with marketplace political in the peting a fear alleges who plaintiff unlike R.S. resources); Linda equal conse- exactly enforcement other prosecution accrue to directly S.Ct. might D., 410 quences Richard chal- of the operation due (no plaintiff legally 1146, 35 L.Ed.2d Skrzypczak’s law, of Ms. source lenged prosecution interest protected subjective de- own her “chill” was alleged Presbyterian another); United also see efficacy of her to the termination (stating that at 1378 Church, McConnell, speech. Cf. employ cases Supreme “[a]ll (no cognizable legally involve effect’ ‘chilling concept of ing the political participate “who those un plaintiff situations exactly equal with do so [to] marketplace harm concrete some respectfully suffered I resources.”). questionably Accordingly, conclusion (empha to the itself.”) regard ‘chill’ with dissent apart ... from overruled.7 should be Skrzypczak added).5 sis case differs that "this ity’s assertion cases in a host majority cites 5. The 612, Valeo, 424 U.S. Buckley [v. the reached Appeals have Courts curiam),] only (1976) (per "consider[ing] inquiries after of similar merits Maj. Op. at more far-fetched.” it is Maj. Op. "reject[ing] it.” argument” and this question begin, is no there To 1093. that all note respect, I With 1095. injury that Buckley alleged an plaintiffs in majority passed by the cited cases interest. legally protected silencio, invaded courts and the standing question sub making ille- penalties for prospect of criminal implicit reso- by their not bound therefore inju- clearly an campaign contributions gal &Sch. State Pennhurst issue. lution Cf. recognizes. But the law ry an interest Halderman, Hosp. the relative is not here at issue question (a not court is 79 L.Ed.2d scope toas claims Plaintiffs’ novelty of the not addressed issues by jurisdictional bound by First Amend- afforded protection of the opinions). prior rather, Plain- but, not the ment, whether majority’s observation agree I with legally protect- injury invades claimed tiffs’ without is novel or a claim simply because all. ed interest claim may not dismiss a court precedent, dispute this party to that no also note 7.I constitu- standing. The minimal lack of decision its review this asked arise from an claim that a requirement tional continuing its questioned party interest, Skrzypczak,no how- protected legally aof invasion does the issue the resolution validity, and of the merits ever, prejudge the not does us. before case outcome affect the major- disagree with the way, I In this claim. Because I agree do not that Skrzypczak cate fundamental rights enshrined in the decided, wrongly was I believe that it con- First Amendment. trols the outcome this case. The Plain- The constitutional issue, amendment at tiffs’ averment “political speech is “the Wildlife Amendment,” passed by a by lessened the supermajority require- bare majority voters, of Utah provides that ment,” true, may be but it only as a allow, limit, initiatives “to or prohibit the result of the Plaintiffs’ internal perception taking of wildlife or the season for or difficulty they face in achieving a method of taking wildlife shall adopted self-defined measure of political success. upon approval of two-thirds of those vot-

An assertion a government action ins- Const, ing.” Utah VI, art. l(2)(a)(ii). § subjective tills sense of futility the—in Those favoring the quo status on wildlife sense that one’s will not have a issues were able pass this amendment desired result —does not constitute an in- are, because they at least as of vasion the time of cognizable of a legal interest. I passage, a majority of Utah respectfully dissent By with voters. the majority’s passing conclusion that amendment, Plaintiffs constitutional have stand- ing. current majority has present enshrined its views into perpetuity. Now, regardless of LUCERO, Judge, Circuit concurring in whether a future majority a 66% —even part and dissenting part. majority the population supports a —of I am pleased join Parts I & II of change in laws, such majori- future Judge opinion McConnell’s on the issues ty will be unable to use the pro- standing and ripeness. cannot, I however, cess to enact preferences its into law. join the conclusion of my respected col- Further, requirement two-thirds will leagues as to merits, as expressed in any chill attempt to change law, any Part III. Because today’s decision frees such campaign will be futile. As stated in scrutiny constitutional by conduct report prepared the Utah Division of majority of voters that potential has the Resources, Wildlife amendment political chill speech on the basis of content it virtually “make[s] impossible for the citi- by imposing discriminatory re- election zens of Utah to mount a successful ballot quirements; because the decision falls on initiative affecting wildlife management the wrong of a split; side circuit and be- practices.” One scholar has described this cause the decision offends traditional no- problem aas of “intertemporal entrench- governance tions of people, I re- ment.” Klarman, Michael Majoritarian spectfully dissent. Review, Judicial Geo. L.J. Assuredly, a may state adopt a constitu- (1997). tional amendment barring passage of What we confront in this case is sub- affecting law an issue. But may stantively indistinct from what occurs rig election by imposing laws a content- when political a party currently power in based two-thirds majority requirement— draws district lines for legislative or seats to greater, today’s as decision would al- their own advantage. In that low—without situation— implicating the First Amend- commonly referred to partisan and as subjecting such gerry- conduct judi- to mandering cial review. Because current participating in majority party an —a election and engaging draws in district lines to virtually guarantee election-related speech are effectively part of majority against its same sways huge in popular conduct, course of election laws opinion. that dis- Jubelirer, See Vieth v. 541 U.S. criminate against a minority’s impli- 267, views 345-46, 124 S.Ct. 158 L.Ed.2d

mi determining for standard no current (collect- was J., dissenting) (Souter, one gerrymanders, constitutionality of showing gerryman- how work scholarly ing deci- such, will). prudent As develop. might popular frustrate dering can liti- lower courts for manipu- to wait other was and sion “Gerrymandering not small, and approach tran- an develop such enable to gants laws electoral lations of perma- themselves suits leverage gerrymandering majorities partisan to bar sient Pildes, (Kenne- Richard ones.” enduring Id. at nently. more into Politics, Democratic Constitutionalizing J., concurring) dy, (2004) (emphasis 28, 60 Harv. L.Rev. ap argued Kennedy Justice only affects not added). Gerrymandering the dissenters advanced proaches challenge any elections, it chills wins who case were in the litigants as the well Issacharoff, See Samuel majority. to the in the they were rooted flawed because Cartels, Political and Gerrymandering Protection Equal law—the of wrong source (2002) (nearly L.Rev. Harv. always push analysis would Such Clause. are legislatures state seats of all half wheth of question political to court ren- gerrymandering because unopposed excessive. been had purpose the 'partisan er generate to as not “so safe them ders Id. gerrymander- Such challenge.”). serious Equal inapplicability Despite season open allowed at least ing gerryman- partisan Clause Protection present so years; every ten hold Kennedy would cases, Justice dering amendment. provides Amendment First in Utah the voters majority aWhat political protection source proper legisla- and what case this done in have “The Kennedy writes: Justice minorities. gerrymandering partisan engaged ture more rele- may be the Amendment en- majority A current identical. does in future provision vant constitutional sways against in law gains its shrines partisan allege unconstitutional cases through elec- so does and opinion popular 317, 124 S.Ct. at Id. gerrymandering.” results channel designed tion laws involving par- cases reasons He 1769. dissent. to squelch “in- laws of electoral manipulation tisan faced Supreme Vieth, the In interest First Amendment volve Protection Equal under challenge citizens penalizing burdening or gerrymander partisan Clause in the electoral participation their joined plu- Four Justices Pennsylvania. views.” -political expression ... their “no were there holding that opinion rality present 1769. manageable discernible judicially passed of Utahns case, majority gerry- political adjudicating standards leg- wildlife defeat Wildlife “political hence mandering claims” extrem- “local animal favored islation nonjusticia- claims gerrymandering prac- Utah’s preserve “to ists” 281, 124 S.Ct. Vieth, ble.” Interest Special Coast East tices there argued dissenters Four “the Wash- press planned who groups” that would standards manageable were the initiative through agenda” ington DC un- .gerrymander Pennsylvania’s render Utah majority in current process. middle Standing constitutional. “citizens because burden chose vote, swing holding dispute, [and] process the electoral participation a concur- wrote Kennedy, who was Justice views,” impli- political expression their that, although there stating ring opinion challenge. Protection Equal an to advance not bar chose case at Appellants 1. eating precisely the First Amendment in- of spurring public debate ....” Id. at 276. terests by identified Kennedy. Justice Id. Discriminatory election regulations not (“First Amendment concerns arise where a only dictate they also chill outcomes— State enacts a law that has purpose speech. not, The issue is as the majority of subjecting effect a group of voters in this case it, mischaracterizes whether ... by disfavored treatment reason of the regulation makes “expression less per- views.”). their suasive or likely less produce results.” Kennedy Justice does explain Maj. Op. at Instead, exact- question ly how the First Amendment should be whether participation in an election has analyze used to partisan gerrymandering both speech and non-speech elements. claims. That task is left to litigants and Like Justice Vieth, Kennedy in the First lower did, however, courts. He explain Circuit reasons in Wirzburger that initia- the contours of such analysis: “If a tive elections are so suffused with speech court were to find that a State impose did attempt to control the outcome of burdens and restrictions on groups per- an election affects speech rights of sons reason views, there would competing those in the election. Given likely abe First violation, Amendment un- that election campaigns are necessarily less the State shows some compelling in- conducted through the medium of speech, terest.” Id. it is no more than foolhardy formalism to Instead of following Justice Kennedy’s say that election laws rig the outcome suggestion that lower courts fashion a of elections do not infringe on speech manageable First standard, Amendment rights. In America, least, one cannot the majority opinion chooses to cast aside silently campaign supporting an initiative — Supreme guidance on the matter requires speech. such free super-majority impositions, This does not mean that a state constitu- be they 66.67% or 99%, from all future tional amendment barring all legislation to constitutional scrutiny. In my judgment, a change the status of wildlife law be would better approach would follow the subject to a First Amendment challenge. First Circuit’s decision in Wirzburger v. Such outright bans on the passage of law Galvin, (1st Cir.2005). 412 F.3d 271 Wirz- are distinct from laws, election because the burger stands for the proposition that laws former establishes a substantive ban that bias electoral may results also uncon- whereas the latter regulates conduct con- stitutionally chill speech. election-related taining speech and non-speech elements. The Massachusetts permits Constitution States do not offend the First Amendment initiatives to amend the constitution, state when they enact substantive limits on the but specifically bars initiatives implicating types of laws that can be passed. When, public funding private education. Id. at however, states Const, amend, stack the deck 274; writing Mass. art. 48. Citi- electoral produce laws that given out- zens sought who pass such an amend- come, First Amendment ment by concerns arise be- initiative challenged bar cause the speech of those grounds. who want campaign to change the is directly laws Although acknowledging that the main limited. purpose of the initiative regu- ban was to late passage laws, regulate The Massachusetts regulation at issue in speech, the Wirzburger court recognizes Wirzburger operates like other bans on that the “state provides a expressive conduct—action that contains uniquely provocative and effective method both and non-speech components—

1H3 not to violate law is determined to state’s chosen Supreme Amendment.2 First States See, e.g., United review. 1673, 382, 367, S.Ct. 88 O’Brien, U.S. 391 role courts fulfill not unlike This is (law (1968) banning 672 deciding L.Ed.2d

20 cases. When law in most election chal be can cards of draft political a affecting destruction challenge to laws a Amendment). First under lenged of associa Amendment First party’s conduct expressive governing Regulations magni character and tion, “weigh we scrutiny. to intermediate subject imposes are rule the State’s the burden tude of 382, 1673. 88 S.Ct. O’Brien, U.S. at against 391 the interests rights those on combining ‘speech’ such, burden, “conduct As justify that contends State if regulated can elements the State’s ‘non-speech’ to which extent consider (1) regula met: necessary.” are requirements four the burden make concerns power of the constitutional Party, tion ‘is within Area Netv Cities v. Twin Timmons (2) impor an Government;’ ‘it furthers 137 interest;’ governmental in (1997) state tant or substantial (holding unrelated is interest (3) sys governmental two-party ‘the and the stability in terests expression;’ of free one suppression barring any law a state justified tem alleged on (4) restriction incidental ‘the two different appearing from candidate greater no is a freedoms limited law though First Amendment even party ballots of that furtherance rights). to the See essential than is party’s ” at 279 Beaver, 412 F.3d Wirzburger, U.S. Clingman interest.’ also S.Ct. O’Brien, U.S. 2029, 2038, 161 L.Ed.2d (quoting 1673.). maintaining independent (state interest in justifies state parties political and viable test, require courts following this in inviting vote barring party a law elector- for their reasons to present states parties); other members primary clear in made isAs regulations. al Jones, 530 Party v. Democratic California cannot a Wirzburger, state O’Brien 2402, 147 L.Ed.2d 567, 574, 120 S.Ct. the basis regulation election justify an “blan (2000) (finding a state-mandated punish or help an intent it reflects because unconstitutional primary” ket Rather, reasons group. particular can moderate promoting state interest issues certain structural —that must be aof a limitation justify does not didates complexity, them are, perhaps rights). association free party’s political process, for the not suitable cases, court association interests, right of in some minority Unlike protecting case election expression adjudicating free than consensus cases, a broader requires competing weigh does under O’Brien If a state’s majority. simple is interest government’s substantial, If the interests. important justification to achiev- is tailored law and the important than greater es- no the restriction analysis. interest, that ends ing that interest, then the fulfill that sential require us context does ing in this O’Brien scrutiny test Using O'Brien's intermediate ex- partisan interests Kennedy's whether admoni- to decide with Justice is consistent cessive; the state has only whether about ask be cautious we “courts must tion that restricting whether interest non-speech that turns on adopting important, standard redistricting interests partisan restriction and whether the law easily is not necessary Excessiveness to further were excessive. greater than rights is no Vieth, U.S. at determined.” interest. J., Apply- concurring). (Kennedy, S.Ct. 1769 majority The opinion suggests that there is macy we review efforts those —when something extraordinary about a court de- currently in power themselves, to entrench ciding whether an interest in this context we pro-majoritarian in that we are important or substantial. ignores This questioning laws may have an anti- the fact that routinely courts make more democratic Klarman, effect. See 85 Geo. difficult judgments in most election law L.J. at 497-98. Those aspire who to be- cases. majorities tomorrow, come of but are only

Courts not can make such determi- against discriminated today, have no re- nations, they must. As in present course other than the courts. Future ma- case, such very laws cut to the structure of jorities that spring today’s unpopular our democracy. Rather than being the opinions should not strangled by place judicial worst intervention, this is dead hands of past. Because today’s where it is most essential. most consti- places decision garrote very those cases, tutional courts face what is often hands, I respectfully dissent. referred to as “counter-majoritarian difficulty.” Bickel, Alexander M. The Dangerous

Least (1962). Branch 16-23

We, unelected judges, federal interpret the

Constitution to determine pre- whether the

commitment strategy of the Founders in-

validates the of choices current electoral

majorities.3 “counter-majoritarian The

difficulty” goes directly to our legitimacy

in a system. constitutional This case does

not present question such about our legiti-

3. That (June 8, Utah’s constitutional 1789) amendment sentatives in Daniel A. Farber would have offended the vision Founders & Sherry, of Suzanna History A the American democracy questioned. cannot be (1990). One of the Constitution Fathers' cardinal concerns was that demo- James responded Madison problem to this government cratic tyrannical lead rule by arguing large that a democracy contained by majority minority. over “When a it within majority antidote to tyranny: faction, majority is in a included the form of shifting among alliances factions that would popular government ... enables it to sacrifice serve to ensure that no one faction dominated ruling passion its pub- interest both the time. sphere, over you "Extend the take good lic rights and the of other citizens.” greater interests; variety parties (J. The Madison) Federalist No. at 106 you probable make it less majority that a (Hamilton 1868). ed. did Founders the whole will have a common motive to problem think the majority abuse of minor- rights citizens; invade the of other or if such ities was government: limited to those in exists, a common motive bewill more diffi- particularly were ways worried about the cult for all who feel toit discover their own majority which a people of the impose could strength, and to act in unison with each oth- impose their will a minority. pre- "The er.” large Id. A democracy poses "greater scriptions in liberty, ought favor to be obstacles ... accomplish- the concert and against levelled quarter great- where of the secret unjust wishes lies, danger namely, est possesses that which Utah, majority.” interested proponents Id. In highest prerogative power: But this quo of the status on wildlife issues found not found in legislative either the executive or way to circumvent prescription Madison's departments government, but the body escaping majority tyranny. They immortal- people, operating the majority majority ized their in the state's election laws. against Madison, minority.” Therefore, James majority current is not sub- Speech of James Madison to Repre- ject House of shifting to the public opinion. winds of

Case Details

Case Name: Initiative & Referendum Institute v. Walker

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 17, 2006

Citation: 450 F.3d 1082

Docket Number: 02-4105, 02-4123

Court Abbreviation: 10th Cir.