Adult Business Found to Lack Standing to Bring First Amendment Suit Against City Ordinance

Plaintiff owns an adult-oriented business in the City of Milford, which passed an ordinance requiring such businesses to publicly post the names of their officers, operators, and owners. Plaintiff brought suit alleging this ordinance violated the First Amendment right to free speech and the Due Process Clause due to vagueness. At trial, the Plaintiffs deposed the City, represented by a former municipal attorney, and received an affidavit from the Chief of Police who was chiefly responsible for administering the ordinance. Based on the deposition and affidavit, the US District Court for Connecticut granted Plaintiff summary judgment, and the City appealed.

On appeal, the Second Circuit zeroed in on the issue of standing. Plaintiffs argued that prudential standing issues were irrelevant as “courts have generally dispensed with the rule that a party must assert its own legal rights and not the rights of third parties when First Amendment free speech rights are at stake” for cases alleging overbroad restrictions. Even so, the Court found that here the Plaintiffs owners and officers had already been publicly identified in the course of the litigation and the Plaintiffs had failed to demonstrate how they would face “threats, harassment, or reprisals” from bringing a case in their own names, nor how the loss of anonymity had infringed upon their rights or harmed them economically. Thus the Court found the plaintiffs lacked standing to challenging a public-posting law based on the right of anonymous expression, vacated the district court’s decision, and remanded for dismissal.

The case was Keepers, Inc. v City of Milford, 2015 WL 73252120 (2d Cir.)

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