arguing that the Congressmen are immune from suit under the Speech and Debate Clause of Article I of the U.S. Constitution and that, even if they were joined as defendants, plaintiffs' complaint should still be dismissed for lack of ripeness and justiciability.
When parties make multiple motions that include a motion to dismiss for lack of subject matter jurisdiction, the court should "'consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.'" Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (quoting 5 C. Wright and A. Miller, Federal Practice and Procedure § 1350, at 548 (1969)). Accordingly, defendant's contention that this Court lacks subject matter jurisdiction over this action is addressed first.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint when the federal court "lacks jurisdiction over the subject matter." Article III of the U.S. Constitution in turn limits the jurisdiction of federal courts to "cases or controversies." The term "case or controversy" has been construed to exclude from its scope hypothetical or abstract disputes: "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality" to justify judicial resolution. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 85 L. Ed. 826, 61 S. Ct. 510 (1941).
Every action before a federal court must be "justiciable," i.e., one in which jurisdiction under the Constitution exists and that is "appropriate for judicial determination." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 81 L. Ed. 617, 57 S. Ct. 461, reh'g denied, 300 U.S. 227, 81 L. Ed. 617, 57 S. Ct. 461 (1937) (citations omitted).
Because the federal government is a government of limited powers, federal courts are presumed to lack jurisdiction "unless the contrary appears firmly in the record." Bender, 475 U.S. 534, 546, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (citation omitted). Thus, it is the plaintiffs' responsibility to allege facts demonstrating that this is a proper instance to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. See Bender, 475 U.S. at 546 n.8; Renne v. Geary, 501 U.S. 312, 316, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (1991).
For a case to be deemed justiciable under Article III, it must be ripe. Abbott Labs. v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). Ripeness is a "constitutional prerequisite to exercise of jurisdiction by federal courts," Federal Election Comm'n v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45, 51 (2d Cir. 1980) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. at 240-41). Ripeness requires a pre-enforcement challenge to a statute to grow out of a "real, substantial controversy between parties" involving a "dispute definite and concrete." Id. (citations omitted); see also Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803).
"Ripeness is peculiarly a question of timing," Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1975), intended "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Labs., 387 U.S. at 136. Its purpose is to forestall judicial determinations of disputes until they are presented in a concrete form. See Renne v. Geary, 501 U.S. 312, 322, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (1991) (citing Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 584, 91 L. Ed. 1666, 67 S. Ct. 1409 (1947)).
The resolution of questions of justiciability and ripeness are generally fact-based, with the results turning on "an assessment of the particular action's place on a continuum from clearly justiciable to clearly unjusticiable." League of Women Voters of California v. FCC, 489 F. Supp. 517, 519 (C.D. Cal. 1980). The focus of any ripeness inquiry is generally guided by a two-pronged analysis, requiring courts to consider 1) the fitness of judicial issues for decision and 2) the injury or hardship to the parties of withholding judicial consideration. See Abbott Labs., 387 U.S. at 149; AMSAT Cable v. Cablevision of Conn., 6 F.3d 867, 872 (2d Cir. 1993); In re Drexel Burnham Lambert Group Inc., 995 F.2d 1138, 1146 (2d Cir. 1993).
Fitness of Judicial Issues for Decision
In determining whether a claim is fit for judicial review, the question is whether consideration of the underlying legal issues would be facilitated if raised in the context of a specific attempt to enforce the challenged provisions. See Gardner v. Toilet Goods Assoc., 387 U.S. 167, 171, 18 L. Ed. 2d 704, 87 S. Ct. 1526 (1967); In re Combustion Equip. Assoc., Inc. 838 F.2d 35, 37-38 (2d Cir. 1988).
In this case, both parties agree that the Act's provisions relating to abortion speech are, on their face, unconstitutionally violative of First Amendment rights, as applied to both commercial and non-commercial speech. Existing jurisprudence substantiates the parties' opinions. See Bolger v. Youngs Drug Products Corp. 463 U.S. 60, 77 L. Ed. 2d 469, 103 S. Ct. 2875 (1983); Bigelow v. Virginia, 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222 (1975). From their perspective, this First Amendment facial challenge will not be significantly clarified by further factual development. Cf. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 201, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983); Poe v. Ullman, 367 U.S. 497, 6 L. Ed. 2d 989, 81 S. Ct. 1752 (1961).
To be sure, different modes of communication have received different treatment under the First Amendment. See Kovacs v. Cooper, 336 U.S. 77, 97, 93 L. Ed. 513, 69 S. Ct. 448 (1949) (Jackson, J., concurring); Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 114 S. Ct. 2445, 2456, 129 L. Ed. 2d 497 (1994); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969). Although content-based restrictions on speech are usually struck down, a medium-specific approach has in the past led to different outcomes. See FCC v. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978). However, even considering the rapidly developing nature of interactive computer services, see ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), it is difficult to say that the particular facts surrounding a potential prosecution under the Act would assist in determining the extent of First Amendment protection for activities covered by the statute.
Hardship to the Parties of Withholding Judicial Resolution
In assessing the hardship to the parties of withholding judicial resolution, the question is whether the challenged action creates a direct and immediate dilemma for the parties. See Abbott Labs., 387 U.S. at 152-53. When declaratory and injunctive relief against the enforcement of a criminal statute is sought, the Supreme Court has typically required that the plaintiff show either prosecution under the statute or that a sufficiently real and immediate threat of prosecution exists. See, e.g., Poe v. Ullman, 367 U.S. 497, 6 L. Ed. 2d 989, 81 S. Ct. 1752, reh'g denied, 368 U.S. 869, 7 L. Ed. 2d 69, 82 S. Ct. 21 (1961) (no justiciability where only one prosecution brought under 1879 statute in a case testing its constitutionality, and no explicit nor implicit threat of enforcement); see also Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Steffel v. Thompson, 415 U.S. 452, 475, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974); United Public Works v. Mitchell, 330 U.S. 75, 90, 91 L. Ed. 754, 67 S. Ct. 556 (1946). A determination will still be ripe, however, where enforcement is delayed, but inevitable. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1974) (where enforcement is inevitable, delay before the provisions came into effect is irrelevant to determination of justiciability).
This traditional ripeness analysis has been relaxed somewhat where a facial challenge implicates First Amendment values. See Steffel v. Thompson, 415 U.S. 452, 475, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974); New York Public Interest Group v. Village of Roslyn Estates, 498 F. Supp. 922, 928-29 (E.D.N.Y. 1979); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). In the First Amendment context, the injury requirement is less strict than in other contexts. See Bates v. State Bar of Arizona, 433 U.S. 350, 380, 97 S. Ct. 2691, 53 L. Ed. 2d 810, reh'g denied, 434 U.S. 881, 54 L. Ed. 2d 164, 98 S. Ct. 242 (1977); Hallandale Professional Fire Fighters Local 2238 v. Hallandale, 922 F.2d 756, 760 (11th Cir. 1991) (citations omitted). In the context of a First Amendment facial challenge to the validity of a statute, reasonable predictability of enforcement or threats of enforcement even where enforcement is not impending are sometimes enough to ripen a claim. See Laird v. Tatum, 408 U.S. 1, 12, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972); Steffel v. Thompson, 415 U.S. 452, 456-57, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974); Martin Tractor Co. v. Federal Election, 200 U.S. App. D.C. 322, 627 F.2d 375, 380 (D.C. Cir.), cert. denied, 449 U.S. 954, 66 L. Ed. 2d 218, 101 S. Ct. 360 (1980). However, courts have uniformly insisted, even in the First Amendment context, that there must still exist some credible fear of enforcement. Laird, 408 U.S. at 13-14; Steffel, 415 U.S. at 475 (1974); Younger v. Harris, 401 U.S. 37, 41-42, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Renne v. Geary, 501 U.S. 312, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (1990).
Plaintiffs have not demonstrated the requisite showing of an impending threat of prosecution under the Act under the traditional ripeness analysis. Where, as here, the statute has been on the books for decades and has never been enforced, there is no credible threat of either imminent or delayed enforcement. Cf. Poe v. Ullman, 367 U.S. 497, 6 L. Ed. 2d 989, 81 S. Ct. 1752, reh'g denied, 368 U.S. 869, 7 L. Ed. 2d 69, 82 S. Ct. 21 (1961). Plaintiffs have not demonstrated that defendant is likely to interrupt her course of silence and non-prosecution; on the contrary, she has recently made an explicit and public statement that she will continue the Department of Justice's traditional policy of non-enforcement.
Moreover, even under the relaxed standard applicable in the First Amendment, context plaintiffs do not demonstrate a credible fear of enforcement of this Act by defendant. Plaintiffs argue that the emotionally-charged and controversial nature of abortion issues in this country places them in "ever-present" danger of enforcement and "demonstrate[s] that all normal expectations that government will not seek to enforce unconstitutional laws [do] not apply in the abortion arena." To support their contentions, they point to the recent "revival" and enforcement of several long-dormant state statutes by state or local officials, despite their allegedly patent unconstitutionality. However, uncertainty about enforcement does not establish a credible basis for fearing enforcement, much less a likelihood of enforcement. If federal courts had jurisdiction to decide disputes wherever uncertainties exist, their jurisdiction would be unending.
Nor doe the recent affirmative steps by Congress to amend the statute and extend its scope, despite the U.S. Attorney General's declaration of its unconstitutionality, increase the likelihood of enforcement. To be sure, in amending the statute, Congress explicitly stated that the amendment should not be construed to repeal any previous provisions, including those prohibitions of abortion-related speech transmitted by common carrier or express service. In addition, the sponsor of the amendment, Representative Hyde, made a public statement about the statute's applicability to abortion-related speech, implicitly pronouncing the statute constitutional.
These steps arguably reflect Congress' perception that the statute is constitutional and its intent that it be enforced.
The executive branch, however, enforces the law, not Congress. See U.S. Const., Art. II, § 3 (the President "shall take Care that the Laws be faithfully executed"); 28 U.S.C. § 516 ("The conduct of litigation in which the United States, an agency, or an officer thereof is a party ... is reserved to officers of the Department of Justice, under the direction of the Attorney General."); Buckley v. Valeo, 424 U.S. 1, 138-39, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379-80 (2d Cir. 1973). Both the Chief Executive and his principal law enforcement officer have publicly announced their intention not to enforce the law, not once but on several occasions. As a practical matter, of course, (and ripeness is a practical issue), Congress possesses the power of the purse which, if exercised, can induce activity by the executive branch which it might otherwise not engage in. No efforts along those lines have been taken by Congress in this case, however, either in response to the President's or the Attorney General's statements made many months ago. Nor has it responded to the formal notification given it by defendant in this case or by her predecessors in related situations. As a result, one must conclude that both Congress and the Executive are content to leave matters at a standstill. Prudence and jurisprudence dictate that the judiciary not create a controversy where none existed before. The choice between prosecuting and not prosecuting this Act is entirely within the discretion of the U.S. Attorney General. See, e.g., Merrill Lynch v. Cavicchia, 311 F. Supp. 149, 158-59 (S.D.N.Y. 1970); see also Walker v. Reno, 925 F. Supp. 124, 127 (N.D.N.Y. 1995); St. Martin's Press, Inc., 605 F.2d 41, 45 (2d Cir. 1979). I conclude, accordingly, that plaintiffs have not demonstrated a credible threat of enforcement.
Notwithstanding the absence of any indication of hardship from impending prosecution or threats of prosecution, plaintiffs' claim might still be ripe under First Amendment jurisprudence if their First Amendment rights have been restricted or "chilled" by the existence of the Act.
Where the existence of a challenged statute results in third parties acting in a way that infringes upon the plaintiffs' exercise of those First Amendment rights, a case will be ripe. See ACLU v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973) (three-judge court) (chilling effect felt from reporting and disclosure requirements of statute where, as a result of statute, newspaper refused to publish plaintiffs' advertisement), vacated as moot sub nom. Staats v. ACLU, 422 U.S. 1030, 45 L. Ed. 2d 686, 95 S. Ct. 2646 (1975); Postal Service v. Council of Greenburgh Civic Assoc., 453 U.S. 114, 69 L. Ed. 2d 517, 101 S. Ct. 2676 (1981) (justiciability not issue where postmaster notified that mailing of letters could result in fine despite no contact with enforcement agencies); New York Public Interest Research Group, Inc. v. Village of Roslyn Estates, 498 F. Supp. 922 (E.D.N.Y. 1979) (existence of challenged statute permitted third-party village to deny plaintiffs' request to canvass in violation of First Amendment). "First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute." Bates v. State Bar of Arizona, 433 U.S. 350, 380, 97 S. Ct. 2691, 53 L. Ed. 2d 810, reh'g denied, 434 U.S. 881, 54 L. Ed. 2d 164, 98 S. Ct. 242 (1977) (citing NAACP v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963)).
However, allegations of a "subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm," Laird v. Tatum, 408 U.S. 1, 13-14, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972), where not substantiated by evidence that the challenged statute is having an immediate and concrete effect. Meese v. Keene, 481 U.S. 465, 95 L. Ed. 2d 415, 107 S. Ct. 1862 (1987); Steffel v. Thompson, 415 U.S. 452, 475, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974); Younger v. Harris, 401 U.S. 37, 41-42, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); St. Martin's Press, Inc. v. Carey, 605 F.2d 41, 44 (2d Cir. 1979). Plaintiffs concede that Internet access providers are not subject to the Act. Plaintiffs' speech will not be restricted by access providers' denying access in order to comply with the Act since it does not apply to the access providers. Plaintiffs instead argue that the Act may be used as a pretext or justification by Internet access providers and other third parties to place restrictions on abortion speech which they are otherwise prepared to impose.
However, plaintiffs again provide no factual showing that access providers are, as a result of the statute's enactment, in fact predisposed to deny access to interactive computer services for the dissemination of abortion speech, that they have taken any steps to act on such a disposition, or even that third-party access providers could in fact prevent transmittal of such information.
In a recent challenge to the constitutionality of the same statute, the court made relevant findings of fact on the nature of interactive computer services. ACLU v. Reno, 929 F. Supp. 824, 830-49 (E.D. Pa. 1996). The court noted:
Internet is a "decentralized, global medium of communications -- or "cyberspace" -- that links people, institutions, corporations, and governments around the world.... There is no centralized storage location, control point, or communications channel for the Internet and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.... No single organization controls any membership ... nor is there any single centralized point from which individual Web sites or services can be blocked from the Web."