activities, a court would seem likely to declare it unconstitutional." (Witmer Aff., Ex. F at 2).
Congress nevertheless passed the provision without modification, and the President signed section 4734 into law.
B. Procedural Background
Plaintiff filed the instant motion for a preliminary injunction on January 27, 1998. After a number of extensions and adjournments, Defendant now states that it will neither defend the constitutionality of 42 U.S.C. section 1320a-7b(a)(6) nor enforce its criminal provisions. On March 11, 1998, Attorney General Janet Reno notified the United States House of Representatives and the United States Senate that the Department of Justice would not enforce the aforementioned criminal provisions. Not surprisingly, Defendant now argues that a preliminary injunction is no longer needed.
In response, NYSBA filed opposition arguing that its members' free speech rights are still being chilled. Essentially, NYSBA argues that section 4734 is unconstitutional for the following reasons: (1) it violates the First Amendment because it unconstitutionally restricts free speech; (2) it violates the First Amendment because it is overly broad; and (3) it violates the Fifth Amendment because it is vague.
Initially, the Court confronts the issue of the NYSBA's standing to bring this action. "The notion that an organization might have standing to assert its members' injury has roots in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958), where the Court noted that for the purpose of determining the scope of the NAACP's rights as a litigant, the association 'and its members are in every practical sense identical.'" United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 116 S. Ct. 1529, 1534, 134 L. Ed. 2d 758 (1996) (quoting Patterson, 78 S. Ct. at 1170). In Patterson, the Court permitted the NAACP to rely on violations of its members' First Amendment associational rights in suing to bar the State of Alabama from compelling disclosure of the association's membership lists. 78 S. Ct. at 1170.
The modern version of this doctrine provides that an organization has standing to sue on behalf of its members if: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit." Sun City Taxpayers' Ass'n v. Citizens Utilities Co., 45 F.3d 58, 61 (2d Cir. 1995) (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977)); see also Rent Stabilization Ass'n v. Dinkins, 5 F.3d 591, 596 (2d Cir. 1993) (stating and applying Hunt test).
It is clear that under the associational standing test, the New York State Bar Association may bring the instant constitutional claims. First, the affidavits of attorney Witmer, a current member and past president of the NYSBA, and attorney Reixach, a current member of the Elder Law Section of the NYSBA, demonstrate that NYSBA members would otherwise have standing to sue in their own right. (Witmer Aff. PP 1-4, 9; Reixach Aff. PP 1-4). Second, the interests the NYSBA seeks to protect are germane to the organization's purpose as stated in Article II of its Bylaws. (Witmer Aff., Ex. B). Third, neither the constitutional claims asserted nor the relief requested requires the participation of the individual members in the lawsuit.
Consequently, the NYSBA has standing to bring the instant claims.
B. Preliminary Injunction
In this circuit the standard for obtaining a preliminary injunction is well established. In order to obtain a preliminary injunction the movant must make an affirmative showing of: (1) irreparable harm; and either (2) likelihood of success on the merits; or (3) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the movant. See, e.g., Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). However, "where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the district court . . . should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim." Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989); see also Union Carbide Agricultural Products Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980).
i. Irreparable Harm
As this Court recently noted, "courts in this circuit have repeatedly stated that 'perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.'" Nakatomi Investments v. City of Schenectady, 949 F. Supp. 988, 990 (N.D.N.Y. 1997) (quoting Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir. 1991)). Irreparable injury, moreover, means injury for which a monetary award cannot be adequate compensation. Jackson Dairy, 596 F.2d at 72 (citing Studebaker Corp. v. Gittlin, 360 F.2d 692, 698 (2d Cir. 1966), Foundry Srvs. Inc., v. Beneflux Corp., 206 F.2d 214, 216 (2d Cir. 1948)).
Turning to the first prong of this test, if the government's enforcement of section 4734 will deprive Plaintiff of its First Amendment rights, this constitutes per se irreparable injury to Plaintiff. See Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). In Elrod v. Burns, the Supreme Court instructed that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." 427 U.S. at 373; see also Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (stating that even a temporary abridgment of the First Amendment right to free expression constitutes irreparable injury).
Here, the Attorney General states that the Department of Justice will not enforce section 1320a-7b(a)(6)'s criminal provisions. The Attorney General argues that NYSBA members face no threat of criminal sanction. As a result, Plaintiff will not suffer any irreparable harm, thus obviating Plaintiff's need for injunctive relief. Defendant's argument, however, misses the point.
Although Defendant does not attack Plaintiff's case on ripeness grounds, the question of irreparable harm in this context is inextricably intertwined with the issue of ripeness. Ripeness is "peculiarly a question of timing," Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S. Ct. 335, 357, 42 L. Ed. 2d 320 (1974), intended "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967). In determining whether a matter is ripe, courts use a two-pronged test: (1) whether the issue is fit for review, and (2) whether injury or hardship will result if judicial consideration is withheld. AMSAT Cable v. Cablevision of Conn., 6 F.3d 867, 872 (2d Cir. 1993); see also In re Drexel Burnham Lambert Group Inc., 995 F.2d 1138, 1146 (2d Cir. 1993); Abbott Labs., 87 S. Ct. at 1515-16.
Among the factors affecting whether a matter is fit for judicial decision is "whether the issue is purely legal or whether 'consideration of the underlying legal issues would necessarily be facilitated if they were raised in the context of a specific attempt to enforce the regulations.'" In re Combustion Equip. Assoc., Inc., 838 F.2d 35, 38-39 (2d Cir. 1988) (quoting Gardner v. Toilet Goods Association, 387 U.S. 167, 87 S. Ct. 1526, 1528, 18 L. Ed. 2d 704 (1967)). Here, the matter is fit for judicial review because the issue is purely legal; the First Amendment challenge will not be significantly clarified by further factual development. See, e.g., Sanger v. Reno, 966 F. Supp. 151, 160 (E.D.N.Y. 1997).
Turning to the question of whether injury or hardship will result if judicial consideration is withheld, this is where the question of ripeness and the injunctive requirement of irreparable harm converge. 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., 87 S. Ct. at 1517. Hence, when relief against the enforcement of a criminal statute is sought, a plaintiff generally must show either actual 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, 81 S. Ct. 1752, 1758, 6 L. Ed. 2d 989 (1961).
The customary ripeness analysis is, however, relaxed somewhat in circumstances involving a facial challenge implicating the First Amendment. See, e.g., New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995); Martin Tractor Co. v. Federal Election Comm'n, 200 U.S. App. D.C. 322, 627 F.2d 375, 380 (D.C.Cir. 1980); Sanger, 966 F. Supp. at 161. Thus, while "the mere existence of a statute . . . is ordinarily not enough to sustain a judicial challenge," National Student Ass'n v. Hershey, 134 U.S. App. D.C. 56, 412 F.2d 1103, 1110 (D.C.Cir. 1969), in contesting the constitutionality of a criminal statute, "it is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 99 S. Ct. 2301, 2309, 60 L. Ed. 2d 895 (1979) (quoting Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 1215-16, 39 L. Ed. 2d 505 (1974)); see also Martin Tractor, 627 F.2d at 380 (noting that "reasonable predictability of enforcement or threats of enforcement, without more, have sometimes been enough to ripen a claim"); Gonzales, 64 F.3d at 1499-1500.
Here, the parties have staked out starkly opposing positions on the issue of whether a threat of enforcement presently exists. The Attorney General assures the Court that she will not enforce section 4734. Plaintiff responds that the Attorney General's statements do not eliminate the threat of future enforcement, and, in fact, may not represent the position of the President of the United States--who has been silent regarding his intentions concerning enforcement.
Fortunately, the Court need not resolve this issue definitively because the Court finds that Plaintiff will suffer injury irrespective of the imminent enforcement of section 4734.
Governmental infringement of the First Amendment does not exist merely in the imposition of criminal sanctions. As the Supreme Court noted in Elrod, the First Amendment is implicated whenever free speech is "either threatened or in fact being impaired at the time the relief [is] sought." Elrod, 96 S. Ct. at 2689. "These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." National Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405 (1963); see also O'Brien v. Caledonia, 748 F.2d 403, 409 (7th Cir. 1984) ("When the threat of sanctions is so imminent, we must presume a deprivation of the First Amendment rights.").
Even in the absence of hardship from imminent prosecution or threat of prosecution, however, a "claim might still be ripe under First Amendment jurisprudence if . . . First Amendment rights have been restricted or 'chilled.'" Sanger, 966 F. Supp. at 162; see also New York Public Interest Research Group, Inc. v. Village of Roslyn Estates, 498 F. Supp. 922, 928 (E.D.N.Y. 1979). "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, 97 S. Ct. 2691, 2707, 53 L. Ed. 2d 810 (1977) (citing NAACP v. Button, 83 S. Ct. at 337-38).
The reasons for relaxing the ripeness analysis in this context is the chilling effect that unconstitutional burdens on free speech may occasion:
First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In awide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.