Opinion
Civ. No. 99-3094, SECTION: "R" (4).
March 16, 2000.
ORDER AND REASONS
Defendants, Walter Reed, District Attorney for the Parish of St. Tammany, Louisiana and Richard P. Ieyoub, Attorney General of the State of Louisiana move the Court to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b) for lack of subject matter jurisdiction and, alternatively, failure to state a claim upon which relief can be granted. For the following reasons, defendants' motion is GRANTED.
I. BACKGROUND
This is an action for declaratory and injunctive relief brought by Florence F. Fox, Bruce Connelly, Carolyn J. Frederick, and Ronald R. Scelson. Fox, Connelly, and Frederick own Fox, Inc., which does business as "A1E Services" and "Over Nite Letter Type." All of the plaintiffs are engaged in the "business of transmitting bulk electronic mail and communications in the same or substantially similar form to more than one thousand recipients via computer networks." (Compl. ¶ I.)
On October 12, 1999, plaintiffs filed suit in this Court against Walter Reed, District Attorney for the Parish of St. Tammany, Louisiana, Richard P. Ieyoub, Attorney General of the State of Louisiana, and the State of Louisiana. The suit facially challenges the constitutionality of Act 1180, a criminal statute enacted by the Louisiana legislature during its 1999 regular session. The Act, which took effect on August 15, 1999, amends La. Rev. Stat. Ann. § 14:73.1 (West 2000) and newly enacts La. Rev. Stat. Ann. § 14:73.6, in order to expand the definition of computer-related crime to include certain acts involving "unsolicited bulk electronic mail." See 1999 La. Acts 1180 § 1. In addition to defining relevant terms, the Act prohibits the transmission of unsolicited bulk electronic mail, when the transmission is in contravention of the authority granted by, or in violation of the policies set by, the electronic mail service provider. See id.; La. Rev. Stat. Ann. §§ 14:73.1, 14:73.6(A). The Act also makes it unlawful for any person to falsify routing information in conjunction with the transmission of unsolicited bulk electronic mail or to distribute or possess computer software designed to facilitate the falsification of such routing information. See id.; La. Rev. Stat. Ann. § 14:73.6(B).
Plaintiffs allege that the Act violates the Fourth and Fourteenth Amendments as vague and overbroad ( See Compl. ¶ V(1)); infringes their First Amendment rights of free speech and communication ( See id. ¶ V(2)); and violates the Commerce Clause of the United States Constitution by unconstitutionally attempting to directly regulate, interfere with, and place an undue burden on interstate commerce. ( See Id. ¶ V(4).) Plaintiffs further assert that prospective criminal prosecution or enforcement of the Act would violate their rights under 42 U.S.C. § 1983. ( See Id. V(3).) Plaintiffs ask this Court to declare the Act unconstitutional and to enjoin its enforcement pursuant to 28 U.S.C. § 2201. Jurisdiction in this court is premised on 28 U.S.C. § 1331 and § 1343(3).
On February 3, 2000, the Court granted plaintiffs' unopposed motion to dismiss the State of Louisiana with prejudice. The remaining defendants now move to dismiss the claims against them on several grounds. First, defendants assert that this Court lacks subject matter jurisdiction over the claims against the Attorney General of the State of Louisiana because the Attorney General is entitled to immunity from suit in federal court under the Eleventh Amendment. Second, defendants argue that subject matter jurisdiction does not exist over this case because it does not present a justiciable "case or controversy" as required by Article III of the United States Constitution. Finally, defendants contend that the complaint fails to state a claim on which relief can be granted.
II. DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject matter jurisdiction. A district court may dismiss an action for lack of subject matter jurisdiction by reference to any one of the following: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); see also Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997) (citations omitted). Defendants raise a "facial attack" on the complaint. Accordingly, the Court must examine whether plaintiffs have sufficiently alleged a basis for subject matter jurisdiction, taking all of their allegations in the complaint as true. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 510 (5th Cir. 1980) ( citing Mortensen v. First Federal Savings Loan, 549 F.2d 884, 891 (3rd Cir. 1977)).
The court properly grants a motion to dismiss for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. See Home Builders Ass'n of Miss., Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) ( quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). When, as is the case here, grounds for dismissal may exist under both Rule 12(b)(1) and Rule 12(b)(6), the Court should dismiss only under the former without reaching the question of failure to state a claim. See Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). The court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits and does not prevent the plaintiff from pursuing the claim in a court that has proper jurisdiction. See id. Because this Court finds that plaintiffs' claims must be dismissed under Rule 12(b)(1), it does not address the legal standard for dismissal under Rule 12(b)(6).
B. Ex Parte Young and the Eleventh Amendment
Defendants contend that plaintiffs' claims against Attorney General Ieyoub must be dismissed for lack of subject matter jurisdiction because he is shielded by Eleventh Amendment immunity. The Eleventh Amendment precludes actions brought against a state in federal court by its own citizens or citizens of another state, absent consent, waiver, or abrogation of the state's sovereign immunity. See U.S. Const. amend. XI; Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347 (1974); Hans v. Louisiana, 134 U.S. 1, 13-15, 10 S.Ct. 504 (1890). The Eleventh Amendment also prohibits suits against state officials when the state is the real party in interest. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908 (1984) However, the Supreme Court has carved out an exception to Eleventh Amendment immunity for suits seeking declaratory or injunctive relief against state officials who violate federal law. See Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 454 (1908)
In Ex Parte Young, the Court held that the Eleventh Amendment did not bar a suit in federal court against the Minnesota Attorney General to enjoin his enforcement of an allegedly unconstitutional state statute regulating railway rates. See id. at 161, 28 S.Ct. at 454. The Ex Parte Young "fiction" provides that a state official who violates the United States Constitution in enforcing a statute is "stripped of his official or representative character" and is therefore not permitted to share the state's Eleventh Amendment immunity from suit. See id. at 159-60, 28 S.Ct. at 454. The Court nevertheless recognized the danger of reading this immunity exception too broadly to permit plaintiffs to test the constitutionality of statutes against state attorneys general and governors merely because of their status as state officers. See id. at 157, 28 S.Ct. at 453. Rather, in order to make a state official a party defendant in a suit to enjoin the enforcement of an allegedly unconstitutional statute, "it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party." Id. (emphasis added). The state official's connection with the enforcement of a challenged act can arise out of the statute at issue or out of his general duties. See id.; Allied Artists Pictures Corp. v. Rhodes, 473 F. Supp. 560, 565 (S.D. Ohio 1979), aff'd 679 F.2d 656 (6th Cir. 1982)
The only Fifth Circuit case to analyze Ex Parte Young's "some connection" requirement was recently vacated pending rehearing en banc and therefore lacks precedential value. See Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999) (Jolly, J. dissenting), reh'g en banc granted, 201 F.3d 353 (5th Cir. 2000). This Court therefore looks to caselaw from other circuits, including the authorities referred to in Okpalobi, to illuminate this standard. Federal courts have construed Ex Parte Young narrowly and have held that the requisite connection exists only when the state official has the authority to enforce the challenged statute and has shown an intention to enforce it. See, e.g., Summit Medical Assocs., P.C. v. Pryor, 180 F.3d 1326, 1342 (11th Cir. 1999), cert. denied, ___ S.Ct. ___, 2000 WL 245310 (Mar. 6, 2000) (refusing to apply Ex Parte Young when husband or maternal grandparent, not Governor, Attorney General, or District Attorney, had authority to enforce challenged statute); Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992) ("under Ex Parte Young, there must be a connection between the official sued and enforcement of the allegedly unconstitutional statute, and there must be a threat of enforcement"); Allied, 473 F. Supp. at 568 ("to satisfy the Young fiction . . ., not only must there be a state officer who has a connection with the enforcement of the challenged statute, but there must also be a real, not ephemeral, likelihood or realistic potential that the connection will be employed against plaintiffs' interests"). In Children's Healthcare Is a Legal Duty, Inc. v. Deters, the Sixth Circuit held that the Ohio Attorney General did not have a sufficient connection to the enforcement of allegedly unconstitutional state statutes when Ohio law delegated the enforcement of the challenged statutes to local prosecutors, not the Attorney General. 92 F.3d 1412, 1416-17 (6th Cir. 1996). Likewise, the Seventh Circuit held on similar facts that the Ex Parte Young exception did not apply to a suit against the Illinois Attorney General because he had never threatened plaintiffs with prosecution and had no authority to do so because "States' Attorneys, elected in each county, are the public prosecutors in Illinois." Sherman v. Community Consol. Sch. Dist. 21 of Wheeling Tp., 980 F.2d 437, 441 (7th Cir. 1992). Compare Southern Pacific Transp. Co. v. Brown, 651 F.2d 613, 614 (9th Cir. 1980) (Oregon Attorney General's power to direct and advise district attorneys in criminal matters insufficient connection with enforcement to satisfy Ex Parte Young), with Ex Parte Young, 209 U.S. at 160-61, 28 S.Ct. at 454 (no Eleventh Amendment immunity when Minnesota Attorney General had general obligation to enforce all laws of state and specific statutory duties to institute suit against corporations which violate state laws and to prosecute all actions deemed necessary to State Railroad Commission). The Sherman court held that the Attorney General must be dismissed from the case, observing that "plaintiffs apparently named the office of the Attorney General in an effort to obtain a judgment binding the State of Illinois as an entity, a step that . . . the eleventh amendment does not permit in the absence of such authorization." 980 F.2d at 441 ( citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666 (1976)).
The panel in Opkalobi held that the Louisiana Attorney General's constitutional authority to "institute, prosecute, or intervene in any civil action or proceeding" to protect the rights or interests of the state provided a sufficient connection between the Attorney General and the challenged civil statute to satisfy Ex Parte Young. 190 F.3d at 346.
Plaintiffs are Louisiana residents who have sued the Louisiana Attorney General, seeking to obtain a declaration that Act 1180 violates the United States Constitution and to enjoin its future enforcement. The Court must determine whether the Attorney General has a sufficient connection with the enforcement of Act 1180 to make him a proper party defendant.
Act 1180 does not specifically create any duty of enforcement. Accordingly, the Court looks to the general law governing the enforcement powers of the Attorney General of the State of Louisiana. The Louisiana Attorney General's powers and duties are set forth in Article IV, Section 8 of the Louisiana Constitution of 1974, which provides in pertinent part:
As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.
The attorney general shall exercise other powers and perform other duties authorized by this constitution or by law.
Defendants correctly observe that although Louisiana law delegates significant authority to the Attorney General to institute and prosecute civil actions, the Attorney General does not enjoy similar discretion in criminal matters. Compare Guidry v. Roberts, 331 So.2d 44, 52-53 (La.App. 1st Cir. 1976), aff'd in part and rev'd in part on other grounds, 335 So.2d 438 (La. 1976) ("It is clear that a district attorney has the sole authority to determine when and against whom a criminal charge shall be instituted subject only to the power vested in the attorney general to supercede that authority upon a showing of cause."), with In re Louisiana Riverboat Gaming Comm'n, 659 So.2d 775, 783 (La.App. 1st Cir. 1995) (Attorney General, not district attorney, had authority to institute declaratory judgment action to obtain judicial determination of validity of rules promulgated by Louisiana Riverboat Gaming Commission). The Attorney General may intervene in a criminal action only if (1) the district attorney in charge of the case provides prior written approval, or (2) a court of competent jurisdiction authorizes the intervention "for cause," namely, upon a showing that the district attorney is not adequately asserting some right or interest of the state. See Plaquemines Parish Comm'n Council v. Perez, 379 So.2d 1373, 1377 (La. 1980) ( citing Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 LA. L. REV. 765, 835 (1977)); see also State v. Neyrey, 341 So.2d 319, 321-22 (La. 1976) (recognizing definite intent of Constitutional Convention delegates to restrict Attorney General's power to institute criminal proceedings). Article V, section 26(B) of the Louisiana Constitution affirms this delegation of prosecutorial authority to local district attorneys in criminal cases: "Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district. . . ."
Under Louisiana law, the Attorney General may not bring a criminal prosecution solely on his authority. The Louisiana Constitution vests that authority in the first instance in local district attorneys. In this respect, Louisiana law is similar to the Ohio provisions in Deter, on which the Sixth Circuit relied in holding that Ex Parte Young did not apply when state law delegated the prosecution of the challenged statute to local prosecutors, not the state Attorney General. In Ohio, like Louisiana, the Attorney General's authority to prosecute criminal offenses was conditional. See OHIO REV. CODE ANN. § 109.02 (West 1999) (conditioning Attorney General's power to prosecute any person indicted for a crime on the written request of the governor). In Louisiana, the district attorneys and the courts control whether the Attorney General may prosecute plaintiffs for violating La. Rev. Stat. Ann. § 14:73.6, as amended and newly enacted by Act 1180. Plaintiffs do not allege that either of the two predicates to the Attorney General's authority to prosecute such a criminal action has occurred. Moreover, while the Governor of Louisiana has general duties to enforce state law, the Attorney General does not have any general duty to enforce all of the laws of the State. See La. Const. art. 4, § 5. See generally Allied, 473 F. Supp. at 567 (holding governor's general duty in state constitution to take care that state laws are faithfully executed is sufficient "enforcement" power to invoke Young fiction against governor) ( citing Federal Nat'l Mortgage Ass'n v. Lefkowitz, 383 F. Supp. 1294 (S.D.N.Y. 1974)); accord National Ass'n for Advancement of Colored People v. State of Cal., 511 F. Supp. 1244, 1256 (E.D. Cal. 1981), aff'd, 711 F.2d 121 (9th Cir. 1981) ("a general obligation to enforce or execute state laws is sufficient to meet the connection with enforcement requirement set forth in Ex Parte Young"). For the foregoing reasons, the Court finds that the connection between Attorney General Ieyoub and the enforcement of Act 1180 is too attenuated to invoke the Ex Parte Young exception. This conclusion is buttressed by the lack of any stated intention by the Attorney General to enforce the statute against plaintiffs or anyone else. See discussion infra Section B. The Eleventh Amendment therefore bars plaintiffs' claims against the Attorney General and mandates their dismissal. The Court must now determine whether the plaintiffs may maintain their claims against District Attorney Reed.
B. Justifiability
Defendants also argue that this action presents no justiciable case or controversy because plaintiffs lack standing and their claims are not yet ripe for judicial resolution. The Declaratory Judgment Act, 28 U.S.C. § 2201, allows a federal court to issue declaratory relief solely "in a case of actual controversy within its jurisdiction." The Act's restriction of federal jurisdiction to actual controversies extends to the "cases and controversies" limit set forth in Article III of the United States Constitution. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 463 (1937); Middle South Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir. 1986). The Fifth Circuit has explained that "[a] controversy, to be justiciable, must be such that it can presently be litigated and decided and not hypothetical, conjectural, conditional or based upon the possibility of a factual situation that may never develop." Rowan Cos., Inc. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989) ( quoting Brown Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967)).
The standing doctrine represents an essential part of Article III's "case or controversy" requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136 (1992). The question of standing concerns "whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205 (1975) ( quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703 (1962)). Standing includes both constitutional and prudential limitations on a federal court's jurisdiction. See id. at 498, 95 S.Ct. at 2205 ( citing Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031 (1953)); New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 ( quoting Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757 (1982); International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 817 (5th Cir. 1979)). To meet the "irreducible constitutional minimum" requirement of standing, a plaintiff must allege the following core elements: (1) he has suffered or is about to suffer an "injury in fact" that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the defendant's conduct; and, (3) a favorable decision is likely to redress the injury. See Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136 (citations and footnote omitted); Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758.
In the context of a pre-enforcement facial challenge to a criminal statute on First Amendment grounds, as is the case here, the plaintiff does not have to first risk exposing himself to actual arrest or prosecution. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309 (1979) ( quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216 (1974)). Moreover, that the statute has not been enforced does not establish the lack of a case or controversy when the state has not disavowed enforcement. See KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 930 (5th Cir. 1983) ( quoting Babbitt, 442 U.S. at 302, 99 S.Ct. at 2310-11), aff'd sub nom. Texas v. KVUE-TV, Inc., 465 U.S. 1092, 104 S.Ct. 1580 (1984) Nevertheless, the plaintiff must, at a minimum, allege an intention to engage in constitutionally protected conduct that is proscribed by the statute and a credible threat of prosecution under the statute. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309. The court must determine whether the threat of prosecution to the plaintiff bringing suit is more than imaginary or speculative. See id. at 298 ( quoting Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749 (1971)). Compare Younger, (holding plaintiffs who had never been arrested, indicted or threatened with prosecution lacked standing to bring First Amendment challenge to criminal statute because complaint alleged only that they felt "inhibited" by statute), with Gardner, 99 F.3d at 11, 17 (standing to bring First Amendment facial challenge to state criminal statute when complaint specifically alleged political action committee's intent to exceed statute's expenditure cap and fear of prosecution if it did so) and KVUE, 709 F.2d at 929 (standing to bring First Amendment facial challenge to state criminal statute when plaintiff alleged desire to violate statute and offered evidence that it lost money by obeying law and has in fact violated statute).
Further, although a plaintiff may establish an actual injury when a statute allegedly "chills" him from exercising his free speech rights or deters his expression in order to avoid prosecution, mere "[a]llegations 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, 92 S.Ct. 2318, 2325-26 (1972). See also Meese v. Keene, 481 U.S. 465, 473, 107 S.Ct. 1862, 1867 ("If Keene had merely alleged that the [statute's characterization of films as 'political propaganda'] deterred him by exercising a chilling effect on the exercise of his First Amendment rights, he would not have standing to seek its invalidation."); Younger, 401 U.S. at 51, 91 S.Ct. at 754 ("the existence of a 'chilling effect,' even in the area of First Amendment rights has never been considered a sufficient basis, in and of itself, for prohibiting state action"). The plaintiff must offer some objective evidence to show that the challenged law, regulation, or ordinance has deterred him from engaging in constitutionally protected speech. See Meese, 481 U.S. at 472-73, 107 S.Ct. 1866-67; Laird, 408 U.S. at 13-14, 92 S.Ct. at 2325-26. See also Gardner, 99 F.3d at 14 (plaintiff's subjective fear that he will be prosecuted for engaging in expressive activity does not constitute injury under standing analysis unless fear is objectively reasonable).
Here, the complaint suggests the following alleged injuries:
1. The Act creates "uncertainty and confusion among plaintiffs as well as among the vast majority of personal computer users." (Compl. ¶ X.)
2. The Act "[u]nlawfully impair[s] such constitutionally-protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, or to protect one's privacy." (Compl. ¶ XI.)
3. The Act "threatens to inhibit and chill the exercise of the plaintiffs' constitutionally-protected rights of freedom of speech and communication." (Compl. ¶ XIV.)
Plaintiffs allege that they intend to remain engaged in the business of transmitting bulk electronic mail and communications. ( See Compl. ¶ I.) However, plaintiffs do not allege that they intend to engage in any conduct that is proscribed by the Act. They do not assert (1) that they transmit electronic mail in contravention of the policies of electronic mail service providers, or (2) that they falsify the routing information of their transactions. See La. Rev. Stat. Ann. § 14:73.6(A) (B). Nor does the record reveal that plaintiffs have a past history of acting in contravention of the Act's requirements. They therefore do not meet the first prong of the Babbitt framework. Further, plaintiffs do not offer objective evidence, or even specific allegations, to substantiate their claim that the Act chills the exercise of their free speech rights by causing them to forego engaging in protected activity. As in Younger, plaintiffs' bald assertion that the Act chills their free speech rights is insufficient to establish standing under Article III.
As noted above, the standing doctrine also includes prudential considerations on the exercise of federal court jurisdiction. See Eaves, 601 F.2d at 817. Relevant to this case, the Supreme Court has held that a party may generally assert only his own legal rights and not those of third parties not before the court. See United Food and Commercial Workers v. Brown Group, 517 U.S. 544, 547 (1996); Warth, 422 U.S. at 499, 95 S.Ct. at 2205. Facial challenges are disfavored because they represent an exception to the traditional rule that "the person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." Los Angeles Police Dep't v. United Reporting Pub. Co., ___ U.S. ___, 120 S.Ct. 483, 488 (1999) ( quoting New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348 (1982) ( citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908) (1973))). Although the Court has created a narrow exception to the traditional standing rule in First Amendment cases involving facial overbreadth challenges, see id. (citations omitted), this exception does not alter the constitutional requirement that plaintiffs demonstrate an injury-in-fact to invoke a federal court's jurisdiction. See Bordello, 922 F.2d at 1061 ( citing Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 958, 104 S.Ct. 2839, 2847 (1984); L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-19, at 135 n. 2 (2d ed. 1988)). See also Henschen, 959 F.2d at 589-90 ("Plaintiffs' ultimate prayer for relief — a declaration that the parade ordinance is overbroad — involves a remedy which we may apply only 'sparingly and as a last resort'. . . . such action must be reserved for the day when a truly justiciable case is at bar") ( quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916 (1973)). Accordingly, to the extent that plaintiffs assert claims of third parties, the overbreadth exception to the traditional standing rule cannot help them as they have failed to allege any present or imminent injury attributable to the Act.
The Court also notes that the overbreadth doctrine cannot be used to challenge regulations of commercial speech. See Village of Hoffman Estates v. Flipside, 455 U.S. 489, 497, 102 S.Ct. 1186, 1192 (1982) ( citing Central Hudson Gas Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 565 n. 8, 100 S.Ct. 2343, 2351 n. 8 (1980); Tobacco Accessories and Novelty Craftsmen Merchants Ass'n of Louisiana v. Treen, 681 F.2d 378, 382 (5th Cir. 1982). See also Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 1885 (1994) ("the possibility that overbroad regulations may chill commercial speech [has not] convinced us to extend the overbreadth doctrine into the commercial speech area"). On its face, Act 1180 applies only to commercial electronic mail transmissions. See La. Rev. Stat. § 14:73.6(A) ("noncommercial electronic mail transmissions shall not be deemed to be unsolicited bulk electronic mail"); § 14:73.1(13) (defining "unsolicited bulk electronic mail" as "any electronic message which is developed and distributed in an effort to sell or lease consumer goods or services"). The overbreadth exception therefore does not apply.
Because plaintiffs have not established the minimum constitutional requirements for standing, this action does not present a justiciable case or controversy under Article III and must be dismissed for lack of subject matter jurisdiction. In so concluding, the Court notes the Fifth Circuit's admonition that "[a] litigant may not . . . challenge the constitutionality of a state criminal statute merely because he desires to wipe it off the books or even because he may some day wish to act in a fashion that violates it." KVUE, 709 F.2d at 927.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants' motion and dismisses this action pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.
New Orleans, Louisiana, this 15th day of March, 2000.