Self-censorship may amount to an injury in fact for purposes of standing if the plaintiff has been "objectively reasonably chilled from exercising his First Amendment right to free expression in order to avoid enforcement consequences." Republican Party of Minn. v. Klobuchar , 381 F.3d 785, 792 (8th Cir. 2004) ; see 281 Care Comm. v. Arneson , 638 F.3d 621, 627 (8th Cir. 2011) ("Self-censorship can itself constitute injury in fact."). "A plaintiff suffers from an objectively reasonable chilling of his First Amendment right to free expression by a criminal statute only if there exists a credible threat of prosecution under that statute if the plaintiff actually engages in the prohibited expression."

The standing analysis for facial overbreadth challenges premised on the First Amendment differs somewhat, so those claims are analyzed separately. See New York State Club Assoc., Inc. v. City of New York, 487 U.S. 1, 11 (1988); Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 791-92 (8th Cir. 2004); SOB, 317 F.3d at 864-66. The standing analysis for Dolls' prior restraint claim also differs, so that claim is analyzed separately as well.

A plaintiff who would invoke federal subject matter jurisdiction must "demonstrate an actual, ongoing case or controversy within the meaning of Article III of the Constitution." Republican Party of Minnesota v. Klobuchar, 381 F.3d 785, 789-90 (8th Cir. 2004) (internal quotation omitted). "The basic inquiry is whether the conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract."

Perhaps what Dr. McNicholas is really trying to say is that the statute will "chill" her practice, based on the potential legal risk involved, even if she cannot identify anyone who would be directly affected by it. Cf. Republican Party of Minn., Third Cong. Dist. v. Klobuchar , 381 F.3d 785, 791–93 (8th Cir. 2004). The court seems persuaded:

"An as-applied challenge consists of a challenge to the statute's application only as-applied to the party before the court." Republican Party of Minn., Third Cong. Dist. v. Klobuchar , 381 F.3d 785, 790 (8th Cir. 2004). "If an as-applied challenge is successful, the statute may not be applied to the challenger, but is otherwise enforceable."

The First Amendment overbreadth doctrine, however, provides an avenue "whereby a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.’ " United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ). "[T]he facial overbreadth doctrine ‘is a departure from traditional rules of standing,’ such that a party whose own expressive conduct may be unprotected is allowed to assert the First Amendment rights of others not before the court...." Republican Party of Minn. v. Klobuchar , 381 F.3d 785, 792 (8th Cir. 2004) (citation omitted) (quoting Alexander v. United States , 509 U.S. 544, 555, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) ). For a federal court to entertain a facial challenge pursuant to the First Amendment overbreadth doctrine, "[t]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the [c]ourt."

Considering the Missouri Supreme Court's analysis and decision, as well as the fact that each of the Does' obligation to registeras a sex offender is derived from a conviction that predated the Halloween statute's enactment, we fail to see how any of the Officials could enforce the Halloween statute against the Does. This conclusion is bolstered by the lack of evidence that the Does are actually under a threat of arrest or prosecution after F.R. See Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 790 (8th Cir.2004) (concluding the plaintiff's claims were moot when the charges against its member were dismissed and “there [was] no evidence that the Party, or even one of its members, [was] under imminent threat of prosecution”). Given these circumstances, we agree with the district court that the Does' fear of arrest and prosecution under the Halloween statute is speculative and hypothetical and that there is no reasonable expectation that a prosecution based upon such an arrest will occur.

Standing requires (1) an injury that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” (2) that the injury “be fairly traceable to the challenged action of the defendant,” and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 791–92 (8th Cir.2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). A. Cingilli

Yet, the "chilling" effect of exercising a First Amendment right must be objectively reasonable. Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 792 (8th Cir. 2004). "[A] plaintiff `suffers Article III injury when [he or she] must either make significant changes . . . to obey the regulation, or risk a criminal enforcement action by disobeying the regulation.'"

Standing does not exist in these circumstances. See Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 792-93 (8th Cir. 2004) (affirming dismissal of First Amendment claim for lack of standing where the only alleged "chilling effect" was on speech that was not forbidden by the statute).