June 17, 2014
The meat of the SBA List case is clarification or revision of the federal court’s standing doctrine in First Amendment cases. No matter how the Court slices it, it’s decision is invariably precedential as to future cases.
On the one hand, they were clear in the United States v. Alvarez and SBA List oral arguments that they wanted someone to have standing to challenge state speech restrictions like those present in our case. The Sixth Circuit’s too-restrictive approach was obviously unacceptable to the Justices. On the other hand, they want to be restrained in establishing a standard that would throw open the courthouse doors to entirely new categories of litigation.
This SCOTUS Blog commentary explores Clarence Thomas’ approach to this issue in his unanimous opinion, being the rule going forward for pre-enforcement standing due to a “credible threat of enforcement” in First Amendment actions.