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Adult-Oriented Establishment fails to Assert Standing for First Amendment Challenge

Courts require standing, a case or controversy, under Article III before a Court will even touch a First Amendment issue. Here, Keepers, Inc. markets itself in providing services to the consenting adult public. At one point a cabaret club, Keepers, Inc. is an adult-oriented establishment who is challenging a regulation on First Amendment grounds (for the purpose of this article). Both the District Court and the Second Circuit did not reach the issue. Why - Standing. The Second Circuit reiterates that

To establish constitutional standing, a plaintiff must demonstrate (1) that it has “suffered an injury in fact,” which is (2) “fairly traceable to the challenged action of the defendant,” and (3) “likely” to “be redressed by a favorable decision.”80 In addition to these core constitutional requirements, litigants must also satisfy “prudential standing,” which “embodies ‘judicially self‐imposed limits on the exercise of federal jurisdiction.’” Pp. 28 (citing Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 91 (2d Cir. 2009) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014)).

Like any good rule, there are exceptions. There are certain cases where a party may sue to enforce the rights of a third party. "Prudential standing includes, inter alia, 'the general prohibition on a litigant’s raising another person’s legal rights' and 'the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches [of government].' ” Pp. 29 (citing Elk Grove, 542 U.S. at 12 (internal quotation marks omitted). In ruling on the issue, the Second Circuit noted that

In its appellate brief, Keepers again stresses the right of “[o]wners of adult businesses” “to fund sexually explicit expression” anonymously. Throughout its argument, Keepers refers either to an impersonal “right to anonymous free expression” or, more often, to the rights of “[p]assive [o]wners,” “shareholders,” and “officers.” Keepers’ brief even converts the District Court’s focus on Keepers’ constitutional rights into a holding about the rights of “partial owners of sexually oriented businesses.” In short, Keepers has consistently asserted not its own right to anonymous expression—which would make little sense for a business that markets its services to the public—but the rights of third parties. Pp. 31 (external quotation marks and footnotes omitted). "[T]o the extent that Keepers challenges the public‐ posting requirements based on a First Amendment right of anonymous expression, its challenge hinges on Keepers’ constitutional and prudential standing to assert the rights of its owners and officers." Pp. 32

“' Typically, a plaintiff who asserts the claims of a third party can obtain standing by establishing (1) a close relationship to the injured party and (2) a barrier to the injured party’s ability to assert its own interests.' Even if we assume that Keepers and the relevant third parties have a sufficiently close relationship to satisfy the first prong of this test…" Pp.35 (internal citations and footnotes omitted). While a corporation may have standing to sue on behalf of a third party, Keepers does not.

Keepers, Inc. sued and are no longer anonymous. Neither Keepers nor the parties who wish to remain anonymous have asserted an injury in fact: No Standing. The Second Circuit notes limits its finding and "recognize that litigants seeking to protect their anonymity may have strong reasons for suing through a third‐party organization rather than in their own names." Pp. 36 (footnote omitted).

The case is Keepers Inc. v. City of Milford, 14‐1581‐cv (Lead), 14‐2113‐cv (XAP) (2d Cir. Nov. 20, 2015).

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