Revised September 16, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-30983
Citizen Action Fund d/b/a Louisiana Citizen Action,
Plaintiff-Appellant,
VERSUS
City of Morgan City,
Defendant-Appellee.
Appeal from the United States District Court For the Western District of Louisiana September 3, 1998
Before DeMOSS, PARKER, and DENNIS, Circuit Judges
PER CURIAM:
This is a 42 U.S.C. § 1983 action for damages and declaratory
relief by Citizen Action Fund (Citizen Action), a public interest
organization, against the City of Morgan City. Citizen Action
alleged that the city violated its rights under the free speech
clause of the First Amendment by threatening to enforce an
ordinance prohibiting uninvited commercial solicitations at private
1 residences between 5:30 p.m. and 8:30 a.m. if Citizen Action were
to canvass residences during those hours for non-commercial public
environmental and consumer causes. The district court granted
Morgan City’s motion for summary judgment upholding the
constitutionality of the ordinance as applied to Citizen Action’s
proposed canvassing activities on the grounds that Citizen Action
could not challenge the city’s unconstitutional application of the
ordinance because Citizen Action also contended that, as correctly
interpreted, the ordinance did not apply to its proposed exercise
of free speech at all. We reverse and remand the case to the
district court for further proceedings.
I.
Citizen Action Fund is an Ohio-based corporation doing
business in Louisiana under the name Louisiana Citizen Action.
Citizen Action is a non-partisan organization which engages in
lobbying activities and the education of the public on various
environmental and consumer issues. Citizen Action uses a grass-
roots approach by canvassing individuals door to door. It uses
this approach for the purpose of “disseminating information on
matters of public importance to citizen, building political support
for various legislative proposals and policies, obtaining
signatures and memberships, and raising funds to further its
informational and public-interest purposes.” (Petitioner’s Brief
at 5).
2 In early 1994, Citizen Action began investigating the
possibility of canvassing residents of Morgan City, Louisiana.
Kendall Jackson, the staff director for Louisiana Citizen Action,
communicated with several officials in Morgan City about the
existence and content of a city ordinance which regulated
“solicitation” for “the purpose of soliciting orders for the sale
of goods, wares and merchandise.” (Ordinance No. 90-8, § 9-6).
Mr. Jackson communicated with Morgan City Mayor Tim Matte, City
Attorney Dale Hayes, and Police Chief Danny Dossett about whether
Citizen Action’s canvassing operation would be “solicitation” under
the ordinance and thus subject to the law’s prohibition on such
activities after 5:30 p.m. Citizen Action wanted to canvass door
to door after 5:30 p.m. because most individuals are not home from
their jobs before that time.1
1 These provisions of the ordinance provided:
(a) Solicitation, the practice of going in and upon private residences in the city by solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise not having been requested or invited to do so by the owner or owners, occupant or occupants of said private residence for the purpose of soliciting orders for the sale of goods, wares and merchandise and/or disposing of and/or peddling or hawking the same without first having applied for and having received a city permit from the tax collector to do so, is declared to be a nuisance and punishable as a misdemeanor. * * * (c) All permits issued as provided for by this section shall be valid between the hours of 8:30 a.m. and 11:30 a.m. and 1:30 p.m. and 5:30 p.m. No solicitor, peddler, hawker, itinerant merchant or transient vendor shall go in or upon private residences other than at the hours stated herein unless an appointment has been made by the occupant of a private residence for a time other than that as provided
3 Citizen Action contended that its activities did not
constitute solicitation under the city ordinance and thus that it
should not be prohibited from canvassing Morgan City residents
after 5:30 p.m. Nonetheless, Kendall Jackson was informed by each
of the Morgan City officials that they interpreted the ordinance as
applicable to the proposed canvassing operation of Citizen Action.
Mr. Jackson was informed by Mayor Matte that the ordinance would be
enforced against Citizen Action unless it could obtain an exemption
from the City Council of Morgan City.2
On March 16, 1995, Citizen Action filed suit against Mayor
Matte and Morgan City, alleging that the ordinance was
unconstitutional, both as written and as applied to Citizen
Action.3 Although Citizen Action never conducted any door to door
canvassing in Morgan City, the organization contends that the
ordinance was unconstitutionally applied to it because of the
threat of enforcement. The defendants moved for partial summary
judgment on the constitutionality of the ordinance on its face.
The plaintiff moved for partial summary judgment on both the facial
herein.
Ordinance 90-8,§ 9-6. 2 The punishment established by the ordinance is “a fine not exceeding five hundred dollars ($500.00) or imprison[ment] not more than six (6) months or by both such fine and imprisonment within the discretion of the court.” Ordinance No. 90-8, § 1. 3 The district court granted a motion by Citizen Action dismissing with prejudice all claims against Mayor Matte.
4 and “as applied” constitutionality of the law.
In a telephone status conference with the respective
attorneys, the district judge suggested that Citizen Action’s
activities might not be covered by the ordinance as written. The
judge then told counsel that the city could amend the ordinance in
order to include canvassing operations such as Citizen Action’s.
Shortly thereafter, upon a representation by the city’s attorney
that such a change would be forthcoming, the district judge
dismissed the summary judgment motions as moot. In November 1996,
Morgan City amended its ordinance to add a section making it
applicable to uninvited non-commercial door to door canvassing.4
After the plaintiff filed a supplemental complaint, the parties
subsequently filed new summary judgment motions putting at issue
the constitutionality of both the original and amended ordinances
and the unconstitutional application of the original ordinance.
The district court granted the defendants’ motion for summary
4 The new section of the ordinance stated, in part:
(g) Door-to-door canvassing in or upon private residences, by persons who have not been invited to do so by the owner or occupant of the residence for the purposes other than the solicitation of orders for the sale of goods, wares, and merchandise and/or disposing of and/or peddling or hawking the same, shall not be subject to the requirements of sub-section (e) of this Section. Persons engaged in door-to-door canvassing as described in this sub-section shall be subject to the fee and permit requirements, limitations, and penalties of sub-sections (b), (c), (d), and (f) of this Section.
Ordinance 90-8, § 9-6(g). Section (e), referred to above, required applicant to furnish a performance bond.
5 judgment and denied the summary judgment motion of the plaintiff.
In a memorandum ruling, the district court ruled that the original
ordinance was constitutional both as applied and as written. In
addition, the district court also ruled that the amended ordinance
was constitutional as written.
In the present appeal, Citizen Action appeals only the
district court’s ruling that the original ordinance had not been
applied in violation of Citizen Action’s First Amendment rights.
II.
This Court’s standard of review for cases dismissed on a
motion for summary judgment is de novo. Wallace v. Texas Tech
Univ., 80 F.3d 1042 (5th Cir. 1996).
On appeal, the defendant argues that Citizen Action does not
have standing to challenge the original Morgan City ordinance
because “Citizen Action can point to no federally protected right
of which it was deprived by Morgan City’s ‘threat’ to enforce” the
law. (Defendant’s Brief at 10). Apparently this standing issue
was not raised in the district court. Although new issues cannot
generally be raised on appeal, Boddie v. City of Columbus, 989 F.2d
745, 751 (5th Cir. 1993), “‘[s]tanding represents a jurisdictional
requirement which remains open to review at all stages of the
litigation.’” In re Taxable Municipal Bond Securities Litigation,
6 51 F.3d 518, 521 (5th Cir. 1995) (quoting National Org. for Women,
Inc. v. Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798, 802, 127 L.
Ed. 2d 99 (1994)).
The standing challenge advanced by defendant can be disposed
of easily. Section 1983 confers no substantive rights but only
provides a cause of action to obtain “redress” for the violation of
federal rights. In other words, one must look somewhere besides 42
U.S.C. § 1983 in order to determine whether a right protected by
federal law has been violated. Here, the law of the First
Amendment is clear that a statute can be challenged prior to any
enforcement action so long as there is a credible threat of
prosecution. Virginia v. American Booksellers Association, 484
U.S. 383, 392-93 (1988); Steffel v. Thompson, 415 U.S. 452, 459
(1974). See also Chamber of Commerce v. Federal Election
Commission, 69 F.3d 600, 603-04 (D.C. Cir. 1995) (“A party has
standing to challenge, pre-enforcement, even the constitutionality
of a statute if First Amendment rights are arguably chilled, so
long as there is a credible threat of prosecution.”). Allowing
pre-enforcement challenges to laws that touch upon First Amendment
freedoms is necessary to ensure that no chilling effect on speech
occurs because of a fear of prosecution. As this court has stated,
“To insist that a person must break the law in order to test its
constitutionality is to risk punishing him for conduct which he may
have honestly thought was constitutionally protected. Not only is
7 this prima facie unfair, but it discourages people from engaging in
protected activity and enforcing constitutional rights.”
International Society for Krishna Consciousness v. Eaves, 601 F.2d
809, 821 (5th Cir. 1979).
In the present case, there is ample evidence in the record to
suggest that even though Citizen Action did not believe it was
covered by the original ordinance, Citizen Action had every reason
to believe that the Morgan City officials interpreted the ordinance
to encompass the plaintiff’s proposed canvassing activities and
that the officials would enforce the ordinance against Citizen
Action and its members if they engaged in those activities. Given
the fact that Citizen Action’s door to door contact with residents
on environmental and consumer issues is speech protected by the
First Amendment, Citizen Action has standing to challenge the
constitutionality of the original ordinance prior to any
enforcement action because of the credible threat of prosecution.
Before reaching the question of whether the plaintiff has a
cause of action under Section 1983, one must first address the
antecedent question of whether Citizen Action’s rights under the
First Amendment were violated. See County of Sacramento v. Lewis,
118 S. Ct. 1708, 1714 n.5 (1998) (“As in any action under § 1983,
the first step is to identify the exact contours of the underlying
right said to be violated.”). It is necessary to recall what is at
issue in this appeal. Citizen Action is only appealing the
8 district court’s grant of summary judgment on the constitutionality
of the original ordinance “as applied.” It is not appealing the
grant of summary judgment upholding the constitutionality of the
original ordinance “as written.” Nor is Citizen Action appealing
the district court’s grant of summary judgment upholding the
constitutionality of the newly amended ordinance “as written.”5
Thus, the issue in the present case is whether Citizen Action’s
rights were violated by the application of the original ordinance.
The answer to this question depends upon a more intricate
formulation of the same question: Can the mere threat of enforcing
the city ordinance against Citizen Action be an unconstitutional
violation of its First Amendment rights, even where the ordinance
itself has been upheld as constitutional? That is, can threats to
violate constitutional rights be actionable under Section 1983?
The Fifth Circuit has concluded that mere threats are not per
5 The district court ruled that the revised ordinance did not place an unacceptable burden upon free speech and was therefore constitutional under a time, place, and manner analysis. Memorandum Ruling at 22-24. As for the original version of the Morgan City ordinance, the district court argues that it was constitutional on its face because if the revised, more restrictive version of the ordinance is constitutional, then the original version must be constitutional as well. The court also relied upon Breard v. City of Alexandria, 341 U.S. 622 (1951), a decision that upheld a total ban on door to door solicitation. While Breard can be distinguished from the present case because of the profit-making focus of the solicitation at issue there, it is also likely that Breard would not be embraced by the Supreme Court of today. See City of Watseka v. Illinois Public Action Council, 479 U.S. 1048 (1987) (affirming Seventh Circuit decision invalidating a city ordinance that limited solicitation to the hours of 9:00 a.m. to 5:00 p.m.).
9 se violations of constitutional rights: “Threats alone are not
enough. A section 1983 claim only accrues when the threats or
threatening conduct result in a constitutional deprivation.” Lamar
v. Steele, 698 F.2d 1286, 1286 (5th Cir. 1983) (per curiam).
What threats constitute a constitutional deprivation differs
from issue to issue and from circuit to circuit. Under the Eighth
Amendment, there is an ongoing dispute as to whether threats by
prison officials against inmates are, by themselves, enough to
establish constitutional violations. Most of these cases are very
fact specific. Some circuits have held that real threats by prison
guards do confer standing under Section 1983, Burton v. Livingston,
791 F.2d 97, 100 (8th Cir. 1986), while others have ruled that “it
trivializes the eighth amendment to believe a threat constitutes a
constitutional wrong.” Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.
1987). The Fifth Circuit, aware that not all injuries are
physical, has yet to rule on “whether, absent physical contact,
purely emotional injuries are cognizable in this Circuit as
violative of the Eighth Amendment.” Smith v. Aldingers, 999 F.2d
109, 110 (5th Cir. 1993) (per curiam).6
Despite these vicissitudes in other areas of constitutional
6 Under the Fourteenth Amendment, this circuit has recognized a substantive due process right and a § 1983 remedy for emotional harms even in the absence of physical injuries. Petta v. Rivera, 143 F.3d 895, 900-01 (5th Cir. 1998) (per curiam). See County of Sacramento v. Lewis, 118 S. Ct. at 1714-16 (describing availability of substantive due process when injuries are not covered by any specific constitutional provision).
10 law, the rights protected by the First Amendment are different.
Threats of unconstitutionally enforcing laws against individuals
can lead to a chilling effect upon speech, silencing voices and
opinions which the First Amendment was meant to protect. Speaking
of the First Amendment, Justice Brennan’s words in NAACP v. Button
remain the bedrock of the law in this area: “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.” NAACP v.
Button, 371 U.S. 415, 433 (1963). See also Virginia v. American
Booksellers Association, 484 U.S. 383, 393 (1988) (“the alleged
danger of this statute is, in large measure, one of self-
censorship; a harm that can be realized even without an actual
prosecution”). As this circuit has recognized, threats affect
individuals’ constitutional freedoms “by causing them to exercise
their first amendment rights less forcefully than they otherwise
would.” International Society for Krishna Consciousness, 601 F.2d
at 824. See also 754 Orange Ave., Inc. v. City of West Haven, 761
F.2d 105 (2d Cir. 1985) (holding that city’s threat to enforce its
zoning and licensing ordinances against adult bookstore amounted to
an impermissible prior restraint).
Applying these principles to the present case, we conclude
that Citizen Action’s constitutional rights were infringed by the
threatened enforcement of the Morgan City ordinance against it.
11 Given the fact that the original ordinance addressed only the
“soliciting [of] orders for the sale of goods, wares and
merchandise” and that Citizen Action’s public interest activities
in support of environmental and consumer causes were not reasonably
included within that definition, the threat by the city to
prosecute Citizen Action for conduct not made illegal by the
ordinance was an unlawful application of that law to intentionally
deter and prevent the exercise of free speech in violation of the
First Amendment.
The district court erroneously concluded that Citizen Action
had not challenged the Ordinance as applied because “by Citizen
Action’s own allegation the Ordinance did not apply to Citizen
Action.” Memorandum Ruling at 25. Whether Citizen Action believed
that its activities were included within the original ordinance’s
language is not determinative of whether its rights of free speech
were violated. It is the Morgan City officials’ interpretation of
the ordinance and threats to act on that interpretation that
matter. Each city official involved told the plaintiff’s
representative that Citizen Action’s proposed activities
constituted “solicitation” under the ordinance and that the
ordinance would be enforced against it. Thus, the city threatened
to enforce the ordinance in an unconstitutional manner giving rise
to a cognizable action based on an “as applied” constitutional
challenge. See Steffel v. Thompson, 415 U.S. at 475 (holding
12 declaratory relief available “when no state prosecution is pending
and a federal plaintiff demonstrates a genuine threat of
enforcement . . . whether an attack is made on the
constitutionality of the statute on its face or as applied”).
Indeed, as Justice Scalia has observed, an “as applied” challenge
exists when “the plaintiff contends that application of the statute
in the particular context . . . in which he proposes to act[] would
be unconstitutional.” Ada v. Guam Society of Obstetricians, 506
U.S. 1011, 1011 (1992) (Scalia, J., dissenting from a denial of
certiorari).
We therefore reverse the district court’s grant of summary
judgment dismissing Citizen Action’s § 1983 action based on the
city’s unconstitutional application of the ordinance in violation
of the plaintiff’s First Amendment rights.
The plaintiff seeks declaratory relief, compensatory damages,
and attorneys’ fees in this lawsuit. While the claims for
compensatory damages and attorneys’ fees can go forward, we hold
that the claim for declaratory relief is moot. In order to grant
declaratory relief, there must be an actual, ongoing controversy.
See Gulf Publishing Co. v. Lee, 679 U.S. 45 (1982) (declaratory
judgment claim mooted after finding no actual, ongoing
controversy); Ellis v. Dyson, 421 U.S. 426, 434 (1975) (holding
that Article III and the Declaratory Judgment Act require that
dispute “must be shown to be alive at each stage of the
13 litigation”). As a leading commentator in this field observes, the
Supreme Court “requires that a litigant show that the requested
declaratory or injunctive relief would make a practical difference
if granted.” 1 Sheldon H. Nahmod, Civil Rights and Liberties
Litigation § 5.05, at 374 (3d ed. 1991). Indeed, the Declaratory
Judgment Act requires that there be “a case of actual controversy”
between the parties. 28 U.S.C. § 2201. Here, since Morgan City
amended the city ordinance to apply to non-commercial canvassing
activities in addition to commercial solicitation, the original
ordinance has been superseded and, thus, there is no continuing
dispute as to its interpretation. As a result, the declaratory
relief claim must be dismissed as moot.
The decision of the district court is REVERSED and the case is
REMANDED to the district court for further proceedings consistent
with this opinion.