Rhode Island Ass'n of Realtors v. Whitehouse

United States Court of Appeals

For the First Circuit

No. 99-1812

RHODE ISLAND ASSOCIATION OF REALTORS, INC.,

Plaintiff, Appellee,

v.

SHELDON WHITEHOUSE, ATTORNEY GENERAL

FOR THE STATE OF RHODE ISLAND,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

Rebecca Tedford Partington, Asst. Attorney General, with whom

Brenda A. Doyle, Special Asst. Attorney General, was on brief, for

appellant.

Mark W. Freel, American Civil Liberties Union, Rhode Island

Affiliate, for appellee.

December 14, 1999

SELYA, Circuit Judge. Certain public records in Rhode

Island are available upon request but come with strings attached.

This case concerns one of those strings: the prohibition on using

records so obtained for commercial solicitation. See R.I. Gen.

Laws 38-2-6. Responding to a petition for declaratory and

injunctive relief filed by the Rhode Island Association of Realtors

(the Association), the district court granted the requested

remedies, ruling that the operation of the statute abridged the

Association's right to free expression. See Rhode Island Ass'n of

Realtors v. Whitehouse, 51 F. Supp. 2d 107 (D.R.I. 1999) [RIAR].

The Rhode Island Attorney General appeals, insisting that the

Association lacks standing to challenge the law. We affirm.

I. BACKGROUND

In accordance with the conventional summary judgment

standard, we limn the facts in the light most favorable to the

Attorney General, indulging all reasonable inferences in his favor.

See Coyne v. Taber Partners I, 53 F.3d 454, 456 (1st Cir. 1995).

The Association is a trade group that represents licensed

real estate agents and brokers. Pursuant to the Access to Public

Records Act, R.I. Gen. Laws 38-2-1 to -15 (the Act), the

Association asked for and obtained from the Department of Business

Regulation (DBR) information concerning the identities of persons

to whom real estate licenses recently had been issued. The

Association wishes to use these data to recruit new dues-paying

members but thus far has refrained from soliciting the listed

license-holders because it fears prosecution under R.I. Gen. Laws

38-2-6.

First enacted in 1979, the statute provides:

Commercial use of public records. No person

or business entity shall use information

obtained from public records pursuant to this

chapter to solicit for commercial purposes or

to obtain a commercial advantage over the

party furnishing that information to the

public body. Anyone who knowingly and

willfully violates the provision of this

section shall, in addition to any civil

liability, be punished by a fine of not more

than five hundred dollars ($500) and/or

imprisonment for no longer than one year.

R.I. Gen. Laws 38-2-6. When the Association requested the

license information, DBR made it aware of potential criminal

penalties under the Act. Although no person has ever been charged

criminally under section 38-2-6, the Attorney General has never

disclaimed it, and a related provision, section 38-2-8, requires

the Attorney General to investigate and, when appropriate, to

prosecute violations.

As a matter of longstanding policy, the Attorney General

does not issue advisory opinions to private parties, so that option

was not open to the Association. The Attorney General sometimes

furnishes such opinions to public entities on questions of state

law, see id. 42-9-6, but he has never promulgated an opinion

anent the scope of section 38-2-6. He has, however, issued at

least one opinion to a state college touching upon the subject

matter. See R.I. Att'y Gen. Unofficial Op. No. PR94-06 (Apr. 21,

1994) (discussed infra).

Reluctant either to execute or to abandon its

contemplated deployment of the information gleaned from DBR, and

seeing no other way of resolving the issue, the Association sued.

Invoking 42 U.S.C. 1983 and the First and Fourteenth Amendments,

it asked the federal district court to declare section 38-2-6

unconstitutional as violative of the free-speech rights of the

Association, its members, and Rhode Island real estate licensees in

general, and to enjoin the then-Attorney General, Jeffrey Pine,

from enforcing the ban on commercial solicitation.

Attorney General Pine moved to dismiss the complaint. He

contended that it showed neither a sufficiently definite plan to

engage in conduct that would transgress section 38-2-6 nor a

sufficiently imminent threat of prosecution. The Association

objected to this motion and in due course filed a cross-motion for

summary judgment. In opposition, the Attorney General confined his

argument to the threshold question of justiciability: he

embellished both of the contentions delineated in the motion to

dismiss, suggested that the court should defer to his

interpretation of the challenged law, and alleged a lack of state

action sufficient to support a claim under 42 U.S.C. 1983. The

Association filed a rejoinder, which included a supporting

affidavit.

The matter lay fallow for several months. Attorney

General Pine did not seek reelection. In November 1998, the voters

chose Sheldon Whitehouse to succeed him. Whitehouse took office on

January 5, 1999, and was substituted as the named defendant in this

suit. See Fed. R. Civ. P. 25(d)(1). In June, the district court

granted the Association's motion for summary judgment. See RIAR,

51 F. Supp. 2d at 114. This appeal followed. Up to that point,

Attorney General Whitehouse had not expressed an opinion as to

either the constitutionality of section 38-2-6 or its applicability

to the Association's proposed course of action.

II. ANALYSIS

On appeal, the Attorney General does not challenge the

district court's determination that section 38-2-6 is

unconstitutional to the extent that it "prohibits the use of public

information 'to solicit for commercial purposes.'" RIAR, 51 F.

Supp. 2d at 114 (quoting statute). We must therefore accept that

determination unless we find that the Attorney General is correct

in his thesis that the district court should not have heard the

case.

The Attorney General grounds this position mainly on a

theory that the Association lacked "standing" to pursue its quest

for declaratory and injunctive relief. But he uses this term

loosely, in a way that brings to mind a panoply of related

concepts: standing, ripeness, and mootness. We address these

justiciability concerns separately and then treat the Attorney

General's assertion that the lower court lacked subject-matter

jurisdiction because the operation of section 38-2-6 does not

involve state action. Consistent with the summary judgment

standard, we afford plenary review. See Coyne, 53 F.3d at 456.

A. Standing.

Inasmuch as the Attorney General couches his

justiciability concerns in terms of standing, we start there. Like

all justiciability doctrines, standing is a necessary concomitant

to the court's power to adjudicate a case. See Warth v. Seldin,

422 U.S. 490, 498 (1975); United States v. AVX Corp., 962 F.2d 108,

113 (1st Cir. 1992). Despite its importance, the doctrine remains

"a morass of imprecision." New Hampshire Right to Life Political

Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996). We know,

however, that standing encompasses both "constitutional

requirements and prudential considerations," Valley Forge Christian

College v. Americans United for Separation of Church and State,

Inc., 454 U.S. 464, 471 (1982), and that the former derive from

Article III's admonition that a federal court may decide only

actual "Cases" and "Controversies," U.S. Const. art. III, 2.

Here, the Attorney General frames his objection in constitutional

terms and, in all events, it is unnecessary to address separately

prudential considerations. See Berner v. Delahanty, 129 F.3d 20,

24 (1st Cir. 1997) ("[A] realistic risk of future exposure to [a]

challenged policy . . . is sufficient to satisfy not only the

standing requirements that Article III imposes, but also the

prudential concerns that sometimes trouble courts."), cert. denied,

523 U.S. 1023 (1998).

The burden of establishing standing rests with the party

who invokes federal jurisdiction. See Bennett v. Spear, 520 U.S.

154, 167-68 (1997). Accordingly, the Association must show that

(1) it personally has suffered some actual or threatened injury,

(2) the injury fairly can be traced to the challenged conduct, and

(3) a favorable decision likely will redress it. See Valley Forge,

454 U.S. at 472; Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st

Cir. 1993).

Neither the second nor the third of these showings has

independent significance in this instance. To the extent that the

Association had suffered a cognizable injury at the time of filing

a matter which we discuss below that injury can be traced

directly to the looming enforcement of section 38-2-6 and can be

fully redressed by declaratory and injunctive relief. See New

Hampshire Right to Life, 99 F.3d at 13. Thus, the lens of our

inquiry narrows to the existence vel non of an actual or threatened

injury.

Although inquiries of this sort are both context-

contingent and situation-specific, the case law furnishes some

guideposts. Generally speaking, a "conflict between state

officials empowered to enforce a law and private parties subject to

prosecution under that law is a classic 'case' or 'controversy'

within the meaning of Art. III.'" Diamond v. Charles, 476 U.S. 54,

64 (1986). Moreover, a private party need not "first expose

himself to actual arrest or prosecution to be entitled to challenge

a statute that he claims deters the exercise of his constitutional

rights." Steffel v. Thompson, 415 U.S. 452, 459 (1974). Because

it ordinarily will be too late to obtain a federal forum once the

state has initiated criminal proceedings, see Younger v. Harris,

401 U.S. 37, 41 (1971), persons who are confronted by criminal laws

of questionable constitutionality should be afforded recourse to

the federal courts as soon as state sanctions have been threatened.

See ACLU v. Florida Bar, 999 F.2d 1486, 1493 (11th Cir. 1993). The

threat, however, must be credible. See New Hampshire Right to

Life, 99 F.3d at 14. Therein lies the rub.

We have framed the applicable rule in the following way:

In a pre-enforcement challenge to a statute

carrying criminal penalties, standing exists

when "the plaintiff has alleged an intention

to engage in a course of conduct arguably

affected with a constitutional interest, but

proscribed by [the] statute, and there exists

a credible threat of prosecution."

Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S.

289, 298 (1979)). In practice, it is often difficult to

distinguish between fears that are chimerical and those that are

realistic. The best that we have been able to do is to insist

that, in these purlieus, standing requires an "objectively

reasonable" fear of prosecution. Id.; see also Laird v. Tatum, 408

U.S. 1, 13-14 (1972) (stating that "[a]llegations of a subjective

'chill' [produced by government intelligence-gathering] are not an

adequate substitute for a claim of specific present objective harm

or a threat of specific future harm"). Determining objective

reasonableness demands a frank consideration of the totality of the

circumstances, including the nature of the conduct that a

particular statute proscribes. See New Hampshire Right to Life, 99

F.3d at 16; cf. Camilo-Robles v. Zapata, 175 F.3d 41, 43 (1st Cir.

1999) (holding that reasonableness for qualified immunity purposes

requires "an objective inquiry into the totality of the

circumstances").

Here, the Association intends to solicit new members an

activity protected by the First Amendment, see Innovative Database

Sys. v. Morales, 990 F.2d 217, 220-22 (5th Cir. 1993) so the

"intention to engage" element is established. So, too, the

proscription element, because the plain language of section 38-2-6

pretermits commercial solicitation. Thus, the pivotal question

reduces to whether the Association faced a credible threat of

prosecution when it filed suit. Our search for an answer takes

place against a background understanding that when First Amendment

values are at risk, courts must be especially sensitive to the

danger of self-censorship. See Virginia v. American Booksellers

Ass'n, 484 U.S. 383, 393 (1988); Meese v. Keene, 481 U.S. 465, 473

(1987).

We recently canvassed much of the relevant case law, see

New Hampshire Right to Life, 99 F.3d at 14-15, and it would be

pleonastic to rehearse it here. We reiterate only the bottom line:

"when dealing with pre-enforcement challenges to recently enacted

(or, at least, non-moribund) statutes that facially restrict

expressive activity by the class to which the plaintiff belongs,

courts will assume a credible threat of prosecution in the absence

of compelling contrary evidence." Id. at 15; accord North Carolina

Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999)

(quoting from this passage), petition for cert. filed, U.S.L.W.

(U.S. May 18, 1999) (No. 98-1887); Commodity Trend Serv. v.

CFTC, 149 F.3d 679, 687 (7th Cir. 1998) (same); see also Wilson v.

State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998) (agreeing

"with the First Circuit's admonition that the credible threat of

prosecution standard 'is quite forgiving'" in the First Amendment

context) (citing New Hampshire Right to Life, 99 F.3d at 14).

Several factors indicate a credible threat of prosecution

here. Section 38-2-6 is regulatory in nature, prohibits precisely

the conduct that the Association wishes to undertake, and sets

severe sanctions for noncompliance. Although the Attorney General

questions the second of these assumptions, there is simply no

plausible way to read the statutory text so that it exonerates the

Association's proposed solicitation.

This conclusion is buttressed by the circumstances. For

one thing, the Association was specifically informed about the

existence of section 38-2-6 when it obtained the names of real

estate licensees from DBR. The clear implication of this direct

monition, particularly when coupled with the unambiguous language

of the statute itself, was that the commercial use of these records

was foreclosed and that transgressions would not go unpunished.

For another thing, the Attorney General had issued no statement

interpreting the statute to mean anything other than what its plain

language portends. To the contrary, in response to a request from

Rhode Island College a few years previously, the Attorney General

had opined that although the college could not condition the

release of records upon recipients' certifying that they would not

use the records to solicit for commercial purposes, it could

require recipients to acknowledge their awareness of the commercial

use prohibition contained in section 38-2-6. See R.I. Att'y Gen.

Unofficial Op. No. PR94-06.

The precise wording of this portion of the opinion is

revealing. After reprinting section 38-2-6 in full, the Attorney

General states that "[i]f the College or any other individual

entity learns that the information is in fact being used in

contravention of the Act, the College may then notify the Attorney

General, who will then take the appropriate course of action as

provided for in Section 38-2-6 of the Act." Id. at 2. This

statement sent a clear message that, in April of 1994, the Attorney

General deemed section 38-2-6 to be alive and well. Thus, the

Attorney General, far from eschewing enforcement, placed an

imprimatur upon the provision barring the use of public records for

commercial solicitation.

To sum up, by obtaining the names of new licensees from

DBR, the Association took a significant first step along a path

blocked by the statutory proscription. Its interest was manifest

and the parameters of the activity that it proposed to undertake

were discrete and well-defined. Inasmuch as the statute appeared

to cover that activity, we believe it was reasonable for the

Association to infer under all the circumstances that a real

possibility of prosecution awaited if it decided to proceed. This

is no hypothetical case; the Association had standing when it filed

suit because a sufficiently imminent threat of injury loomed.

We add a coda. In resisting this conclusion, the

Attorney General relies heavily on the fact that the state has

never pursued criminal charges under section 38-2-6. His argument

has two flaws. First, the record contains no realistic basis for

a suggestion that the statutory provision, enacted only twenty

years ago, has fallen into desuetude. Second, predicting the

future from the past is perilous business. There are a minimum of

three possible explanations for a history of nonenforcement: a

statutory prohibition may have proven to be an effective deterrent,

or the proscribed behavior may be difficult to detect, or the state

may have decided not to enforce the statute. The threat of future

prosecution varies depending on which of these theories most likely

accounts for the historical pattern.

We consider the possibilities in reverse order. Given

the Attorney General's advisory opinion to Rhode Island College and

the warning the Association received from DBR, it hardly can be

said that the state had disavowed enforcement of section 38-2-6.

By like token, there is nothing in the record to suggest that

commercial solicitation somehow flies below law enforcement radar.

Here, then, the first explanation seems by far the most plausible,

especially since the Association provides uncontradicted affidavit

support for the proposition that section 38-2-6 acts as a

deterrent. In view of the pellucid language of the statute and the

warnings that it would be enforced, it is not illogical to assume

that this phenomenon probably accounts for the absence of prior

prosecutions.

In all events, the Supreme Court repeatedly has found

standing to mount pre-enforcement challenges to laws that had never

been enforced. See, e.g., United Farm Workers, 442 U.S. at 302;

Doe v. Bolton, 410 U.S. 179, 188 (1973). We emulate these

examples. It would be little short of perverse to deny a party

standing because the statute she challenges is so potent that no

one dares violate it, especially when the result is widespread

self-censorship. See American Booksellers, 484 U.S. at 393.

B. Ripeness.

If standing is a question of who, then ripeness which

shares standing's constitutional and prudential pedigree, see

Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 242-44 (1952) is

a question of when. Its basic function is "to prevent the courts,

through avoidance of premature adjudication, from entangling

themselves in abstract disagreements." Abbott Labs. v. Gardner,

387 U.S. 136, 148 (1967). To determine whether a case is ripe for

review, a federal court must evaluate the fitness of the issue

presented and the hardship that withholding immediate judicial

consideration will work. See id. at 149. Thus, the plaintiff must

adduce facts sufficient to establish both fitness and hardship.

See Ernst & Young v. Depositors Econ. Protection Corp., 45 F.3d

530, 535 (1st Cir. 1995). These concepts are related but distinct:

fitness "typically involves subsidiary queries concerning finality,

definiteness, and the extent to which resolution of the challenge

depends upon facts that may not yet be sufficiently developed,"

whereas hardship "typically turns upon whether the challenged

action creates a direct and immediate dilemma for the parties."

Id. (citations and internal quotation marks omitted).

As these preliminaries indicate, standing and ripeness

may substantially overlap. The imbrication is nowhere more

apparent than in pre-enforcement challenges. The existence vel non

of a credible threat of prosecution, critical to the injury-in-fact

requirement for standing, factors into both branches of the

ripeness equation. This is as it should be, for the reasonableness

of the fear of enforcement is at the core of both standing and

ripeness. See Adult Video Ass'n v. Barr, 960 F.2d 781, 786 (9th

Cir. 1992) ("Our conclusion that a reasonable threat of prosecution

exists, for purposes of standing, effectively dispenses with any

ripeness problem."), vacated, 509 U.S. 917 (1993), reinstated in

relevant part, 41 F.3d 503 (9th Cir. 1994); see also Socialist

Workers Party v. Leahy, 145 F.3d 1240, 1244-45 (11th Cir. 1998)

(considering ripeness and standing together in respect to a pre-

enforcement challenge).

Despite this overlap, we assume, favorably to the

Attorney General, that both standing and ripeness are contested

here. To establish ripeness in a pre-enforcement context, a party

must have concrete plans to engage immediately (or nearly so) in an

arguably proscribed activity. This gives a precise shape to

disobedience, posing a specific legal question fit for judicial

review. A showing that the challenged statute, fairly read,

thwarts implementation of the plan adds the element of hardship.

Applying these general precepts, we have little

difficulty in concluding that the Association's claim was ripe when

filed. This is not a case of statutory ambiguity but, rather, one

that presents a single, purely legal question: Does Rhode Island's

prohibition on using public records for commercial solicitation

unconstitutionally restrain free expression? The Association has

described a concrete plan to recruit new members an activity

plainly proscribed by the text of section 38-2-6 and no one has

suggested any valid reason why resolution of the apparent conflict

should await further factual development. Since the controversy

was well-defined and amenable to complete and final resolution, it

was fit for judicial review.

Similarly, the Association refrained from carrying

forward its plan because it reasonably feared prosecution under

section 38-2-6. The Association thus faced the "direct and

immediate dilemma," W.R. Grace & Co. v. EPA, 959 F.2d 360, 364 (1st

Cir. 1992), of choosing between "the Scylla of intentionally

flouting state law and the Charybdis of forgoing what [it]

believe[d] to be constitutionally protected activity," Steffel, 415

U.S. at 462. Because lost opportunities for expression cannot be

retrieved, delaying or denying resolution of the issue would have

worked a substantial hardship. See Duke Power Co. v. Carolina

Envt'l Study Group, Inc., 438 U.S. 59, 82 (1978).

C. Mootness.

"The rule in federal cases is that an actual controversy

must be extant at all stages of review, not merely at the time the

complaint is filed." Steffel, 415 U.S. at 459 n.10. Building on

this foundation, the current Attorney General argues that certain

representations made by him and his predecessor after service of

the Association's complaint defused the controversy. Although the

Attorney General makes this argument under the heading of standing,

it is really an argument for mootness but not a winning one.

Mootness derives from the same constitutional and

prudential concerns as standing and ripeness. What distinguishes

mootness is its focus on ongoing events. Even if a justiciable

controversy exists when litigation begins, Article III requires a

federal court to depart the field if the controversy later abates,

that is, if ongoing events have wiped the slate clean or changed

the topography so that the court's opinion would be purely

advisory. See County of Los Angeles v. Davis, 440 U.S. 625, 631

(1979); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41

(1937); see also Powell v. McCormack, 395 U.S. 486, 496 (1969)

(explaining that a case becomes moot "when the issues presented are

no longer 'live' or the parties lack a legally cognizable interest

in the outcome").

In contrast to standing, the burden of establishing

mootness rests on the party raising the issue. See Davis, 440 U.S.

at 631; New York State Nat'l Org. for Women v. Terry, 159 F.3d 86,

91 (2d Cir. 1998), cert. denied, 119 S. Ct. 2336 (1999). This

burden is heavy. See United States v. W.T. Grant Co., 345 U.S.

629, 633 (1953). In an effort to sustain it, the Attorney General

points to several statements indicating, with varying degrees of

certitude, that the Association's planned activity falls outside

the scope of section 38-2-6. We examine those statements.

In the memorandum that accompanied his motion to dismiss,

Attorney General Pine admitted that the Association alleged an

intent to use licensee information "to solicit new members," but

asserted without amplification that this activity could not be

regarded as "a solicitation for a commercial purpose." He

moderated his stance somewhat in his objection to the Association's

summary judgment motion, asserting that its proposal did "not

appear to allege a violation of 38-2-6." Chiming the same note,

his successor states in his appellate brief that the Association's

proposed course of action "does not appear to fall within the

parameters of the commercial use prohibition." We do not believe

that these statements render the controversy moot.

On its face, section 38-2-6 bars the use of public

records obtained under the Act to solicit for a commercial purpose.

This is exactly what the Association intends to do. The Attorney

General has been careful not to concede that section 38-2-6 is

unconstitutional, and he has told at least one state agency (Rhode

Island College) that it will be enforced. Against this backdrop,

the Attorney General must proffer more than a conclusory assertion

of inapplicability to convince us that the Association no longer

faces a credible threat of prosecution. See Abbott Labs., 387 U.S.

at 154 (rejecting Justice Department's conclusory representation,

made after commencement of suit, as insufficient to render action

moot); cf. Dombrowski v. Pfister, 380 U.S. 479, 494 (1965) ("So

long as the statute remains available to the State the threat of

prosecutions of protected expression is a real and substantial

one.").

The Attorney General directs us to a line of cases that

consider the authoritative interpretations of local officials in

assessing facial overbreadth challenges. See, e.g., Forsyth County

v. Nationalist Movement, 505 U.S. 123, 131 (1992); Ward v. Rock

Against Racism, 491 U.S. 781, 795-96 (1989); City of Lakewood v.

Plain Dealer Publ'g Co., 486 U.S. 750, 770 n.11 (1988); Gooding v.

Wilson, 405 U.S. 518, 524-28 (1972). These cases provide him

precious little comfort. The instant statute is unambiguous and,

therefore, not readily susceptible to a narrowing construction.

Moreover, the cautious phrasing of the Attorney General's

statements (e.g., "does not appear") is a far cry from a flat

commitment not to prosecute in this particular instance. See

Wilson v. Stocker, 819 F.2d 943, 947 & n.3 (10th Cir. 1987)

(finding a credible threat of prosecution notwithstanding the

Attorney General's affidavit which stated that "he did not

presently believe the [plaintiff's] proposed conduct . . . was

prohibited by the statute"). Nor can the Attorney General's

litigation position be viewed as "authoritative," given his guarded

language and his office's longstanding policy against issuing

advisory opinions to private parties.

Finally, and perhaps most telling, the Attorney General

has not furnished any plausible explanation for the suggestion that

the Association's planned enterprise somehow eludes the

proscription contained in section 38-2-6. Cf. Wulp v. Corcoran,

454 F.2d 826, 830 (1st Cir. 1972) (finding standing where the

plaintiffs' "challenge involve[d] facial unconstitutionality

without the possibility of a limiting construction that would allow

the core of the ordinance to be upheld as constitutional"). For

this reason, the representations furnish no guidance for applying

the statute to future cases. Even were these representations

unequivocal (and they are not), to allow the government to render

a pre-enforcement challenge to an unambiguous state statute moot

simply by declaring a case-specific amnesty would effectively

insulate unconstitutional state statutes from pre-enforcement

review. This is simply not the law. See Plain Dealer Publ'g, 486

U.S. at 770 n.11.

A good illustration of how these principles ought to work

can be found in North Carolina Right to Life, 168 F.3d 705. There,

the plaintiffs brought a pre-enforcement challenge against a

statute that on its face constrained the planned distribution of

voter guides. See id. at 710. In 25 years, the statutory

provisions had never been interpreted to cover issue advocacy of

this kind. See id. Consistent with this understanding, the state

defendants, including the attorney general, took the position that

the challenged sections did not apply to issue advocacy. See id.

The Fourth Circuit nonetheless found a justiciable controversy

because "the only thing standing in the way of a criminal

prosecution is the State's litigation position that it will

voluntarily refrain from enforcing the statute according to its

plain language." Id. at 711. This reasoning is equally applicable

to the case at bar.

Let us be perfectly clear. Even when state officials

fail to offer an authoritative interpretation of a state statute,

a federal court considering a pre-enforcement challenge sometimes

will presume a narrowing construction to which the law is fairly

susceptible. See Plain Dealer Publ'g, 486 U.S. at 770 n.11. In

this case, however, we discern no plausible narrowing construction

and the Attorney General has pointed to none. Because construing

the statute to exempt the Association's planned activity requires

discarding wholesale the prohibition on commercial solicitation,

the only practical way for the Attorney General to assuage a

reasonable fear of prosecution would be to disclaim, in categorical

terms, any intent to enforce the prohibition on commercial

solicitation. See Navegar, Inc. v. United States, 103 F.3d 994,

1000 (D.C. Cir. 1997) ("Because it is clear to whom these

provisions of the Act would be applied were they to be applied at

all, the imminent threat of such prosecutions can be deemed

speculative only if it is likely that the government may simply

decline to enforce these provisions at all."); New Mexicans for

Bill Richardson v. Gonzales, 64 F.3d 1495, 1502 (10th Cir. 1995)

(permitting case to proceed because state had "not affirmatively

disavowed any intention of bringing criminal prosecution" under the

challenged statute); see also Hallandale Prof. Fire Fighters Local

2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991)

(finding a justiciable controversy when "[a]ll that remained

between the plaintiff and the impending harm was the defendant's

discretionary decision which could be changed to withhold

prosecution").

D. State Action.

We turn now to the Attorney General's last argument. His

premise that a section 1983 suit necessitates a showing of state

action is sound. After all, the public/private dichotomy which

distinguishes between state action and private conduct remains a

staple of our constitutional jurisprudence. See Perkins v.

Londonderry Basketball Club, F.3d , (1st Cir. 1999) [No.

99-1385, slip op. at 6-7]. Consequently, state action is an

indispensable ingredient of a suit which (like this one) raises a

section 1983 claim predicated on an abridgement of First Amendment

rights. See Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978);

Rodrguez-Garca v. Dvila, 904 F.2d 90, 94 (1st Cir. 1990).

Citing Tulsa Prof. Collection Servs. v. Pope, 485 U.S.

478 (1988), the Attorney General argues that the scenario presented

here encompasses insufficient state action to support a section

1983 claim. This argument fails.

In Tulsa Prof., the Court held that the operation of a

two-month limitation period for the presentation of contract claims

in probate proceedings embodies state action. See id. at 488. The

Justices said that the involvement of the probate court throughout

the process distinguished this nonclaim statute from self-executing

statutes of limitations, the enactment and running of which do not

implicate state action. See id. at 486-87. In the Attorney

General's view, section 38-2-6 is more akin to a self-executing

statute of limitations than to a probate nonclaim statute (and,

thus, does not involve state action). We disagree.

A substantive criminal provision carries a threat of

state action quite unlike a limitation period. Section 38-2-6 is

such a law; it prohibits conduct and bears criminal sanctions. The

penalties attending a violation of section 38-2-6 obviously depend

on the state mounting a prosecution, so the provision cannot be

described as "self-executing." Furthermore, the Association

challenges not the mere enactment of section 38-2-6, but the

combination of the section's proscriptive language and the credible

threat that the state will enforce it. Consequently, there is

ample state action to support the use of 42 U.S.C. 1983 as a

vehicle for the Association's challenge. See, e.g., Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982) (stating that an

alleged constitutional deprivation caused "by a rule of conduct

imposed by the State" can satisfy the state action requirement).

III. CONCLUSION

We need go no further. At the moment of this action's

conception, the Association had standing to challenge the

commercial solicitation provision of R.I. Gen. Laws 38-2-6, and

it properly employed 42 U.S.C. 1983 as a means to that end. The

Association's claim was ripe then and is not moot now.

Accordingly, we reject the Attorney General's plea of

nonjusticiability and affirm the judgment below.

Affirmed.