Opinion
Case No. 2:04-CV-00384.
July 16, 2004
ORDER GRANTING MOTION TO DISMISS
This action is before the court on the defendants' motion to dismiss for lack of standing. Plaintiff Larsen argues that there is a sufficient enough threat of harm to him to confer standing. The court finds, however, that Mr. Larsen has failed to demonstrate that a credible threat does exist and that he consequently lacks standing to bring this action. The court GRANTS the motion to dismiss.
BACKGROUND
Plaintiff Larsen is currently a Utah gubernatorial candidate, albeit not a particularly high-profile one. As part of his ongoing political campaign, Larsen writes his name in ink on small American and Utah state flags, which he then exhibits or distributes to the public. This particular campaign technique conflicts with a Utah statute forbidding unauthorized inscription upon any flag of the United States, or state thereof. Claiming to fear criminal prosecution, Larsen sent letters to State Attorney General Mark Shurtleff and Salt Lake District Attorney David Yocom, requesting they acknowledge the unconstitutionality of the statute and assure him that he would not be prosecuted. Larsen interpreted Yocom's reply declining to declare the statute unconstitutional (making such a declaration exceeds his authority) and Shurtleff's failure to respond as evidence of intent to prosecute him. He subsequent filed his complaint seeking declaratory and injunctive relief.
Utah Code Ann. § 76-9-601 (1953, as amended).
ANALYSIS
To establish standing, a plaintiff must demonstrate (1) injury in fact, (2) causation, and (3) redressability. In order to avoid the harm of self-censorship, a lessening of prudential limits on standing exists were controversies concern First Amendment Rights. Nevertheless, a plaintiff challenging a statute on First Amendment grounds must "establish an injury in fact sufficient to satisfy Article III's case-or-controversy requirement." In the First Amendment context, a plaintiff suffers an injury in fact if he intends to engage in conduct that is arguably constitutionally protected but proscribed by statute, and there is a credible threat of prosecution. Alternately, a plaintiff can also suffer an injury in fact "if a credible threat of future prosecution results in a chilling effect on his desire to exercise his First Amendment rights." Both scenarios require that the plaintiff demonstrate that (1) there is a statute governing his constitutionally protected conduct and (2) there is a credible threat of prosecution.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997).
Phelps, 122 F.3d at 1326.
Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003).
Phelps, 122 F.3d at 1326.
Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987).
While Larsen may arguably satisfy the criteria that his constitutionally protected conduct is prohibited by a statute, he fails to demonstrate the presence of a credible threat of prosecution. Since the 1989 Supreme Court decision in Texas v. Johnson, ruling that the desecration of an American flag is protected by the First Amendment, the constitutionality of the Utah statute has been questionable. There is no record of anyone being prosecuted under the Utah statute since 1988. In his affidavit, defendant Yocom asserts that "[u]nless and until the constitutional doubts about the Utah statute are eliminated through a constitutional amendment or a new decision of the United States Supreme Court, [he has] no intention of prosecuting Ken Larsen or anyone else under the statute." Accepting Yocom's affidavit at face value, it is impossible for Larsen to establish standing since there is no credible threat of prosecution so long as the statute is constitutionally questionable. The only instance where Larsen may be prosecuted is if the constitutional issue is resolved, in which case Larsen would lack the first required prong as flag desecration would no longer be a constitutionally protected right.
491 U.S. 397 (1989).
Affidavit of Brian Nelson, 3-4.
Affidavit of David Yocom, 2.
Larsen characterizes Yocom's affidavit as excessively vague — "a less than direct affidavit suggesting that . . . he might not prosecute." This court, however, interprets the statement to sufficiently assert the absence of any intent to prosecute Larsen. The plaintiff points to this court's previous assertion that even sporadic enforcement of a criminal statute is sufficient to give standing to challenge a criminal statute. Here, however, enforcement is not merely sporadic; it is not existent. The mere fact that a statute forbidding flag desecration exists does not itself pose a threat of prosecution. The Seventh Circuit, deciding an especially analogous case, recently asserted that the "statute books are littered with provisions that if read literally and without regard to their interpretive history would prohibit . . . privileged conduct." Moreover, in reviewing this same issue under different facts, the Tenth Circuit recently affirmed that "assurances from prosecutors that they do not intend to bring charges are sufficient to defeat standing, even when the individual plaintiff had actually been charged or directly threatened with prosecution for the same conduct in the past."
Cooper v. Utah, 684 F. Supp. 1060 (D. Utah 1987).
Lawson v. Hill, 368 F.3d 955, 959 (7th Cir. 2004).
D.L.S. v. Utah, No. 03-4031, 2004 WL 1510020, *2 (10th Cir. July 7, 2004).
Though the statute Mr. Larsen challenges may indeed exist on the books, recent history and Mr. Yocom's affidavit assure us that Mr. Larsen is not threatened by prosecution under it. Simply put, there is no credible threat of prosecution to Mr. Larsen.
CONCLUSION
Accordingly, this court GRANTS the defendants' motion to dismiss (#3-1). The clerk is directed to close this case.SO ORDERED.