Amicus Curiae Brief — Rio Grande Foundation, Petitioner v. Maggie Toulouse Oliver, in Her Official Capacity as Secretary of State of New Mexico

No. 25-1248

In The

Supreme Court of the United States

––––––––♦––––––––

RIO GRANDE FOUNDATION,

Petitioner,

v.

MAGGIE TOULOUSE OLIVER, in her official capacity as

Secretary of State of New Mexico,

Respondent.

––––––––♦––––––––

On Petition For A

Writ Of Certiorari To The United States

Court Of Appeals For The Tenth Circuit

––––––––♦––––––––

AMICUS CURIAE BRIEF OF

RANDY ELF

IN SUPPORT OF

PETITIONER RIO GRANDE FOUNDATION

––––––––♦––––––––

RANDY ELF

Counsel of Record

Post Office Box 525

Lakewood, N. Y. 14750

Telephone (202) 423-2122

ForEFilingOnly@gmail.com

May 18, 2026

Counsel for Amicus

i

TABLE OF CONTENTS1

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iv

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 4

I.

Standing addresses who may bring a

claim or seek a form of relief, while

ripeness and mootness address when the

claim may be brought or the form of relief

may be sought. ..................................................... 4

II. In First Amendment challenges, the test

for standing ‘is quite forgiving,’ and courts

apply it ‘most loosely … to provide broad

protection for speech.’ .......................................... 5

A. Pre-enforcement-speech-law

challengers can proceed in three ways. ........ 8

B. The very ‘existence of [law] implies a

threat to [enforce/]prosecute.’ ..................... 11

C. The enforcement/prosecution ‘threat is

latent in the existence of the’ law. The

law’s ‘mere existence risks chilling

First Amendment rights.’............................ 12

1 This brief is based on the copyrighted-filed brief at

https://ssrn.com/abstract=5289838 (U.S.). This brief is at

https://ssrn.com/abstract=6556878 (copyrighted) (all Internet

sites, except the one for this brief, visited May 1, 2026).

ii

D. Alternatively, if law bans, otherwise

limits, or regulates speech, ‘there is a

presumption of a credible threat of’

enforcement/prosecution. ............................ 13

E. Neither nonbinding assurances from

government that it will refrain from

enforcing, or prosecuting violations of,

challenged law—nor incorrect denials

that law applies—deprive challengers

of standing, render claims unripe, or

deprive challengers of irreparable

harm............................................................. 14

F. Before raising a First Amendment

claim in a federal court, challengers

need not raise it in a state forum,

exhaust administrative remedies, or

seek advice, including advisory

opinions, from government officials. .......... 17

III. The Tenth Circuit’s standing analysis is

incorrect. It is way too stringent. Way too

stringent. ............................................................ 18

A. The first element of the Tenth

Circuit’s Walker test is incorrect. ............... 20

B. The second element of the Tenth

Circuit’s Walker test rightly requires

no specificity. ............................................... 20

C. The third element of the Tenth

Circuit’s Walker test derails. ...................... 21

D. The Tenth Circuit, already in a hole

on the Walker test’s third element,

keeps digging. .............................................. 22

iii

1. The Tenth Circuit’s first crediblefear factor is incorrect. .......................... 23

2. The Tenth Circuit’s second

credible-fear factor is incorrect. ........... 24

3. The Tenth Circuit’s third crediblefear factor is incorrect. .......................... 25

E. The Tenth Circuit misunderstands

Anthony List. The Tenth Circuit’s

three credible-fear factors are not

really factors in, but are facts of,

Anthony List. Courts must not turn

facts of Anthony List—an easy case on

standing—into

factors

that,

to

whatever extent, limit challengers’

standing. ...................................................... 25

F. The Anthony List opinion could have

deterred

the

Tenth

Circuit’s

misunderstanding on credible fear. ............ 27

IV. The 2025 Tenth Circuit panel conflated

Track 1, political-committee(-like) burdens

and Track 2, non-political-committee

disclosure requirements. ................................... 29

CONCLUSION ......................................................... 32

iv

TABLE OF AUTHORITIES2

CASES

*281 Care Comm. v. Arneson, 638 F.3d 621 (8th Cir.

2011).......................................................... 14, 23, 24

281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir.

2014)...................................................................... 23

303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir.

2021 ....................................................................... 23

303 Creative LLC v. Elenis, 600 U.S. 570 (2023) .... 23

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .......... 6

Ala. Democratic Conference v. Strange, No. 11-cv02449-JEO (N.D. Ala. Dec. 14, 2011) (unpublished)

8

Alexis Bailly Vineyard, Inc. v. Harrington, 931 F.3d

774 (8th Cir. 2019) ................................................ 12

Arizonans for Official English v. Arizona, 520 U.S.

43 (1997) ................................................................. 5

Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289 (1979) ........................................... 7, 11, 23

2 “Authorities upon which [this filing] chiefly rel[ies] are

marked with asterisks.” D.C.CIR.R. 28(a)(2), available at

https://www.cadc.uscourts.gov/circuit-rules-procedures;

accord 11TH CIR.R. 28-1(e), available at

https://www.ca11.uscourts.gov/rules-procedures.

This filing cites slip- or manuscript-opinion/order pages,

rather than Westlaw star pages, where bound-volume pagination will later be available, because Westlaw removes star pagination when West issues bound-volume pagination.

v

Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010) ..... 11

Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102

(1974) ...................................................................... 5

Boone Cty. Republican Party Exec. Comm. v.

Wallace, 132 F.4th 406 (6th Cir. 2025) ................ 28

*Buckley v. Valeo, 424 U.S. 1 (1976) (per-curiam) . 10,

29

*Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d

1088 (9th Cir. 2003) .............................................. 12

Califano v. Sanders, 430 U.S. 99 (1977) ................... 6

Capron v. van Noorden, 6 U.S. (2 Cranch) 126 (1804)

4

*Chamber of Com. v. FEC, 69 F.3d 600 (D.C. Cir.

1995)...................................................................... 17

Children’s Healthcare is a Legal Duty, Inc. v. Deters,

92 F.3d 1412 (6th Cir. 1996) ............................ 6, 12

Chiles v. Salazar, 116 F.4th 1178 (10th Cir. 2024) 19

Chiles v. Salazar, 146 S.Ct. 1010 (2026) ........... 19, 23

Christian Healthcare Ctrs., Inc. v. Nessel, 117 F.4th

826 (6th Cir. 2024) ................................................ 28

*Citizens for Responsible Gov’t State PAC v.

Davidson, 236 F.3d 1174 (10th Cir. 2000) ........... 15

Citizens United v. FEC, 558 U.S. 310 (2010) 9, 18, 28

*Ctr. for Individual Freedom v. Carmouche, 449 F.3d

655 (5th Cir. 2006) .......................................... 12, 24

D.L.S. v. Utah, 374 F.3d 971 (10th Cir. 2004) ........ 21

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) 6

vi

Davis v. FEC, 554 U.S. 724 (2008) ................ 4, 5, 6, 9

Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) .. 28

Doe v. Bolton, 410 U.S. 179 (1973) .......................... 23

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............ 11

Epperson v. Arkansas, 393 U.S. 97 (1968) ................ 7

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) . 9

File v. Martin, 33 F.4th 385 (7th Cir. 2022)............ 12

*Fla. Family Policy Council v. Freeman, 561 F.3d

1246 (11th Cir. 2009) .............................................. 7

Free Speech Coal., Inc. v. Att’y Gen. of U.S., 677 F.3d

519 (3d Cir. 2012) ................................................. 16

Friends of Earth, Inc. v. Laidlaw Env’t’l Servs.

(TOC), Inc., 528 U.S. 167 (2000) ............................ 5

Houston Chronicle v. City of League City, 488 F.3d

613(5th Cir. 2007) ................................................. 11

Initiative & Referendum Inst. v. Walker, 450 F.3d

1082 (10th Cir. 2006) (en-banc) ..................... 19, 20

Jacobus v. Alaska, 338 F.3d 1095 (9th Cir. 2003) .... 9

Laird v. Tatum, 408 U.S. 1 (1972) ............................. 8

Lewis v. Casey, 518 U.S. 343 (1996) .......................... 6

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . 6

*Majors v. Abell, 317 F.3d 719 (7th Cir. 2003) ....... 12

McConnell v. FEC, 540 U.S. 93 (2003) .................... 18

McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016) . 28

Med-Immune, Inc. v. Genentech, Inc., 549 U.S. 118

(2007) .................................................................... 10

vii

Minn. Citizens Concerned for Life, Inc. v. Swanson,

692 F.3d 864 (8th Cir. 2012) (en-banc) ................ 14

*N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th

Cir. 1999) .................................................. 12, 13, 15

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th

Cir. 2008) ........................................................ 14, 18

*N.H. Right to Life PAC v. Gardner, 99 F.3d 8 (1st

Cir. 1996) ................................................ 7, 9, 10, 13

*Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682

(2d Cir. 2013) ...............................6, 8, 10, 15, 16, 17

NRA v. Magaw, 132 F.3d 272 (6th Cir. 1997) ......... 11

Online Merchs. Guild v. Cameron, 995 F.3d 540 (6th

Cir. 2021) .............................................................. 28

Pa. Family Inst., Inc. v. Black, 489 F.3d 156 (3d Cir.

2007)........................................................................ 4

*Parents Defending Educ. v. Linn Mar Cmty. School

Dist., 83 F.4th 658 (8th Cir. 2023) ....................... 12

Patsy v. Board of Regents, 457 U.S. 496 (1982) ...... 17

Peachlum v. City of York, Pa., 333 F.3d 429 (3d Cir.

2003)........................................................................ 9

Peck v. McCann, 43 F.4th 1116 (10th Cir. 2022) ... 19,

22

Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294 (3d Cir.

1996)........................................................................ 4

Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001) ...... 7

Powell v. McCormack, 395 U.S. 486 (1969)............... 5

Presbytery of N.J. of Orthodox Presbyterian Church

v. Florio, 40 F.3d 1454 (3d Cir. 1994)) ................... 9

viii

Rio Grande Found. v. City of Santa Fe, 7 F.4th 956

(10th Cir. 2021) ..................................................... 19

Schrader v. Dist. Att’y of York County, 74 F.4th 120

(3d Cir. 2023) ........................................................ 28

Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th

Cir. 2022) .............................................................. 28

*Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir.

2020)...............................................11, 12, 14, 17, 24

Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir.

2019)...................................................................... 24

St. Paul Area Chamber of Com. v. Gaertner, 439 F.3d

481 (8th Cir.2006) ................................................. 24

Steffel v. Thompson, 415 U.S. 452 (1974) .................. 7

Susan B. Anthony List v. Driehaus, 573 U.S. 149

(2014) ................... 3, 4, 7, 8, 9, 10, 11, 23, 25, 26, 28

Tweed-New Haven Airport Auth. v. Tong, 930 F.3d

65 (2d Cir. 2019) ................................................... 28

United Fuel Gas Co. v. R.R. Comm’n of Ky., 278 U.S.

300 (1929) ............................................................. 16

United States v. Lopez, 514 U.S. 549 (1995) ........... 26

*United States v. Stevens, 559 U.S. 460 (2010). 16, 24

*Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379

(4th Cir. 2001)................................................. 13, 17

Virginia v. Am. Booksellers Ass’n, 484 U.S. 383

(1988) .......................................................... 7, 10, 17

Vitagliano v. Cty. of Westchester, 71 F.4th 130 (2d

Cir. 2023) (same) .................................................. 28

ix

Voter Reference Found. v. Torrez, 160 F.4th 1068

(10th Cir. 2025) ..................................................... 19

*Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d

376 (2d Cir. 2000) ....................................... 8, 15, 17

Warth v. Seldin, 422 U.S. 490 (1975) ........................ 4

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457

(2001) .................................................................... 16

Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006) . 21

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7

(2008) .................................................................... 16

*Wis. Right to Life State PAC v. Barland, 664 F.3d

139 (7th Cir. 2011) .....................9, 10, 11, 15, 20, 24

*Wis. Right to Life, Inc. v. Barland, 751 F.3d 804

(7th Cir. 2014)....................................................... 14

Wyo. Gun Owners v. Gray, 83 F.4th 1224 (10th Cir.

2023)...................................................................... 19

Yamada v. Kuramoto, 744 F.Supp.2d 1075 (D. Haw.

2010)........................................................................ 8

Younger v. Harris, 401 U.S. 37 (1971)................. 7, 11

Zielasko v. Ohio, 873 F.2d 957 (6th Cir. 1989) ... 6, 12

RULES

11TH CIR.R. 28-1 ........................................................ iv

D.C.CIR.R. 28 ............................................................. iv

S.CT.R. 37 ................................................................... 1

x

LAW REVIEWS

Randy Elf, The Constitutionality of State Law

Triggering Burdens on Political Speech and the

Current Circuit Splits, 29 REGENT U.L. REV. 35

(2016) (“Triggering”) .............. 1, 8, 10, 15, 16, 28, 29

PRESS

John Viehe, Chautauqua People (Aug. 12, 2024)...... 1

Randy Elf, High Court Should Clarify Anthony List,

POST-JOURNAL, April 18, 2025 ....................... 27, 28

OTHER AUTHORITIES

Randy Elf, How Political Speech Law Benefits

Politicians and the Rich (Aug. 20, 2020) (one-hour

video) ....................................................................... 1

1

INTEREST OF AMICUS CURIAE3

Amicus has presented many briefs and oral arguments on political-speech law’s constitutionality

and written a law-review article addressing much of

what is at issue here. Randy Elf, The Constitutionality of State Law Triggering Burdens on Political

Speech and the Current Circuit Splits, 29 REGENT

U.L. REV. 35 (2016) (“Triggering”), available at

https://ssrn.com/abstract=5283417.

Amicus has also made many presentations

across the country on this topic. E.g., id. at 35 n.*;

Randy Elf, How Political Speech Law Benefits Politicians and the Rich (Aug. 20, 2020) (one-hour video),

available at

https://www.youtube.com/watch?v=h3ebymA7xOo;

John Viehe, Chautauqua People at 0:03.25-0:08.45

(Aug. 12, 2024) (interview of Amicus), available at

https://accesschautauquacountytv.org/episode/GVbIP

KfKKmw.

Where this brief quotes Triggering text, some

cites from corresponding footnotes are inserted into

the text, and some cites remain in footnotes. Cites

3 Counsel of record for all parties received timely notice of

Amicus’s intent to file this brief. No party’s counsel wholly or

partly authored this brief. No such counsel, party, or other person—other than Amicus or Amicus’s counsel—contributed

monetarily to preparing or submitting this brief. Amicus has no

members. Cf. S.CT.R. 37.2, 37.3, 37.6.

2

are converted from law-review style to brief style;

many are condensed. Emphases are as in Triggering.

––––––––♦––––––––

SUMMARY OF ARGUMENT

► Whichever way pre-enforcement-speech-law

challengers seek to establish standing, they must

demonstrate credible fear of enforcement/prosecution.

What demonstrates such fear? The answer is

simple: Challengers’ doing or seeking to do what is

“proscribed by” law objectively leads to credible fear

of enforcement/prosecution.

Particularly—but not only—under law chilling

speech, the existence of law implies a threat of enforcement/prosecution, and such a threat is latent in

the law’s existence. Alternatively, there is a presumption of a credible threat of enforcement/prosecution.

Neither nonbinding assurances from government that it will refrain from enforcing, or prosecuting violations of, challenged law—e.g., nonbinding

disavowals of enforcement/prosecution—nor incorrect denials that law applies, render claims nonjusticiable, or deprive challengers of irreparable harm.

► The Tenth Circuit’s conclusion that PlaintiffPetitioner Rio Grande Foundation (“RGF”) has chill

standing is correct.

3

► The Tenth Circuit’s standing analysis, however, is incorrect. It is way too stringent. Way too

stringent. The Tenth Circuit thereby splits with

multiple circuits on chill standing.

The first element of the Tenth Circuit’s injuryin-fact test is incorrect, and the third element derails.

► But there is more. The Tenth Circuit identifies “at least three factors” to determine credible fear

of enforcement/prosecution.

All “three factors” are incorrect.

► Where did the Tenth Circuit get those “three

factors”? Please follow the trail. It leads to Susan B.

Anthony List v. Driehaus, 573 U.S. 149 (2014).

The fundamental problem here is that those alleged “three factors” are not really factors in, but are

facts of, Anthony List. None is a factor limiting other

chilled challengers’—or, for that matter, any other

challengers’—standing.

Those facts of Anthony List merely made Anthony List an easy case. Other facts further made

Anthony List an easy case. It was not even a close

call. The decision was unanimous.

Nevertheless, Anthony List opened the door to

lower courts’, to varying extents, turning Anthony

List facts into factors limiting—or at least in effect

limiting—challengers’ standing.

4

The Court should close that door, particularly

since the misunderstanding is partly due to Anthony

List.

––––––––♦––––––––

ARGUMENT

I.

Standing addresses who may bring a claim

or seek a form of relief, while ripeness and

mootness address when the claim may be

brought or the form of relief may be

sought.

Standing, ripeness, and mootness are part of

justiciability, which is part of jurisdiction, Warth v.

Seldin, 422 U.S. 490, 498-99 & n.10 (1975), which

courts must always consider, Capron v. van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804). Parties cannot establish jurisdiction by conceding it. Id.

Standing addresses who may bring a claim or

seek a form of relief, while ripeness—meaning,

throughout this brief, “prudential ripeness,” Anthony

List, 573 U.S. at 167—and mootness address when

the claim may be brought or the form of relief may

be sought. Compare Davis v. FEC, 554 U.S. 724, 73336 (2008) (addressing standing/mootness) with Pa.

Family Inst., Inc. v. Black, 489 F.3d 156, 165 (3d Cir.

2007) (“Whereas ripeness is concerned with when an

action may be brought, standing focuses on who may

bring a[n] action” (emphasis in original) (quoting

Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1298 n.1

(3d Cir. 1996))).

5

Ripeness and mootness are like what happens

to fruit: First it is not ripe, then it becomes ripe, and

then it becomes rotten, or moot.

This brief discusses

● justiciability, especially standing, in general, infra Part II,

● RGF’s standing, infra at 18, and

● Tenth Circuit standing analysis, infra

Part III.

II.

In First Amendment challenges, the test

for standing ‘is quite forgiving,’ and courts

apply it ‘most loosely … to provide broad

protection for speech.’

Challengers must have standing from the outset, see Davis, 554 U.S. at 732 (“at the commencement of the litigation” (quoting Friends of the Earth,

Inc. v. Laidlaw Env’t’l Servs. (TOC), Inc., 528 U.S.

167, 189 (2000))), and maintain standing throughout

the action, see id. at 733 (“at all stages of review, not

merely at the time the complaint is filed” (quoting

Arizonans for Official English v. Arizona, 520 U.S.

43, 67 (1997))).4

4 By contrast, courts determine ripeness and mootness as

of now. See Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102,

140 (1974) (“since ripeness is peculiarly a question of timing, it

is the situation now ... that must govern”); Powell v. McCormack, 395 U.S. 486, 496 (1969) (holding that claims are “moot

6

Standing, moreover, “‘is not dispensed in

gross.’” Id. at 734 (quoting Lewis v. Casey, 518 U.S.

343, 358 n.6 (1996)). Rather, challengers must establish standing for each claim they bring and each

form of relief they seek. Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).

The three Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992), standing criteria require

challengers such as RGF to demonstrate that (3) a

favorable decision will likely redress (1) the injuryin-fact that (2) the challenged law causes.5

Lujan’s having “tightened up the rules on

standing,” Children’s Healthcare is a Legal Duty,

Inc. v. Deters, 92 F.3d 1412, 1420 (6th Cir. 1996)

(Batchelder, J., concurring), does not undermine preenforcement challenges, see id. at 1416 n.10 (distinguishing Zielasko v. Ohio, 873 F.2d 957, 958-59

(6th Cir. 1989), which, unlike Children’s Healthcare,

92 F.3d at 1416, is a pre-enforcement challenge).

And in First Amendment challenges, the test

for standing6 “is quite forgiving.” N.H. Right to Life

when the issues presented are no longer ‘live’” (citations omitted)).

5 By contrast, ripeness turns on “the fitness of the issues

for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136,

149 (1967), abrogated on other grounds, Califano v. Sanders,

430 U.S. 99, 105 (1977).

6 And ripeness. E.g., Nat’l Org. for Marriage, Inc. v.

Walsh, 714 F.3d 682, 689 (2d Cir. 2013).

7

PAC v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996). Courts

apply it “most loosely … to provide broad protection

for speech.” Fla. Family Policy Council v. Freeman,

561 F.3d 1246, 1253 (11th Cir. 2009) (quoting Pittman v. Cole, 267 F.3d 1269, 1283 (11th Cir. 2001)).

Thus, pre-enforcement-speech-law challengers

need not violate the law, thereby exposing themselves to enforcement/prosecution, to have standing

to challenge it. Steffel v. Thompson, 415 U.S. 452,

459 (1974) (citing Epperson v. Arkansas, 393 U.S. 97

(1968)).

True, such challengers lack standing if they

have only an “imaginary or speculative” fear of enforcement/prosecution—e.g., if they neither (1) have

received a threat of enforcement/prosecution, (2)

claim that enforcement/prosecution is likely, nor (3)

allege enforcement/prosecution is even remotely possible. Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298-99 (1979) (quoting Younger v.

Harris, 401 U.S. 37, 42 (1971)).

Threats, however, need not be express threats.

Far from it. Such challengers have injury-in-fact, supra at 6, if what they do or seek to do is “arguably

affected with a constitutional interest, but proscribed by [law], and there exists a credible threat of

[enforcement/]prosecution,” Anthony List, 573 U.S.

at 159 (quoting Babbitt, 442 U.S. at 298), i.e., “an actual and well-founded fear” of enforcement/prosecution, Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,

393 (1988).

8

Even if law provides “only civil [enforcement],

and not criminal” prosecution. Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 690 (2d Cir. 2013)

(quoting Vt. Right to Life Comm., Inc. v. Sorrell, 221

F.3d 376, 382 (2d Cir. 2000)); cf. Anthony List, 573

U.S. at 166 (not reaching this); Laird v. Tatum, 408

U.S. 1, 13-14 (1972) (holding that challengers without “direct injury,” i.e., “specific present objective

harm or a threat of specific future harm,” lacked

chill standing (collecting authorities)).

A. Pre-enforcement-speech-law challengers can proceed in three ways.

Pre-enforcement challengers to law banning,

otherwise limiting,7 or regulating8 speech can establish injury-in-fact in three ways: By

7

A ban is a limit of zero. Ala. Democratic Conference

v. Strange, No. 11-cv-02449-JEO, at 17 (N.D. Ala.

Dec. 14, 2011), vacated on other grounds, 541

F.App’x 931, 935-37 (11th Cir. 2013) (unpublished).

Triggering at 38 n.25.

8

In other words, requir[ing] disclosure of, which differs from “ban[ning]” or otherwise “limit[ing].” See

Yamada v. Kuramoto, 744 F.Supp.2d 1075, 1082 &

n.9 (D. Haw. 2010) (distinguishing restrictions, i.e.,

bans or other limits, from regulation, i.e., disclosure).

Triggering at 35 n.2 (distinguishing forms of disclosure).

9

● having engaged in their speech, having

violated the challenged law, and credibly

fearing enforcement/prosecution, see N.H.

Right to Life PAC v. Gardner, 99 F.3d 8,

13-14 (1st Cir. 1996) (discussing this form

of standing),9

● engaging in their speech, and complying

with the challenged law because they credibly fear enforcement/prosecution, see Davis, 554 U.S. at 733-35 (same),10 or

● shunning their speech, given that the

challenged law chills their speech because

they credibly fear enforcement/prosecution,

see, e.g., Wis. Right to Life State PAC v.

Barland, 664 F.3d 139, 147 (7th Cir. 2011)

(same); cf. Anthony List, 573 U.S. at 155

(acknowledging chill); Citizens United v.

FEC, 558 U.S. 310, 324, 327, 329, 333-34,

336, 351, 357, 371 (2010) (same); id. at 375

(Roberts, C.J., concurring) (same); FEC v.

Wis. Right to Life, Inc., 551 U.S. 449, 46869 (2007) (same); Buckley v. Valeo, 424

9 Such claims can also be ripe. E.g., Jacobus v. Alaska,

338 F.3d 1095, 1105 (9th Cir. 2003).

10 Such claims can also be ripe. E.g., Peachlum v. City of

York, Pa., 333 F.3d 429, 435 (3d Cir. 2003) (“Our stance toward

pre-enforcement challenges stems from a concern that a person

will merely comply with an illegitimate statute rather than be

subjected to [enforcement/]prosecution.” (citing Presbytery of

N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454,

1467 (3d Cir. 1994))).

10

U.S. 1, 41 n.47, 82 n.109 (1976) (percuriam) (same).11

The main difference between the second and

third ways, supra at 9, is whether challengers engage in their speech. Compare supra at 9 with Triggering at 57-58 n.130 (contrasting (2) Davis standing

and (3) chill standing).

As for the third: What is the main difference between “pre-enforcement” and “chill”? The latter is a

proper subset of the former. See, e.g., N.H. Right, 99

F.3d at 13-14 (addressing these); (but see Rio Grande

Found. v. Oliver, 57 F.4th 1147, 1160 (10th Cir.

2023) (missing this by saying “chilled speech or preenforcement”) (earlier appeal not in CERT.-PET.APP.)).

Although credible fear of enforcement/prosecution is a harm, supra at 9, chill, supra at 9, is an additional harm.

The danger in chill “is, in large measure, one of

self-censorship[,] a harm that can be realized even

without an actual [enforcement/]prosecution.” Am.

Booksellers, 484 U.S. at 393.

11 Such claims can also be ripe. E.g., Walsh, 714 F.3d at

687-92; Barland, 664 F.3d at 148-49. Even if standing and constitutional ripeness, Anthony List, 573 U.S. at 167, “boil down

to the same question,” id. at 157 n.5 (quoting Med-Immune,

Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007))—in which

case one wonders why we need constitutional ripeness—

standing and prudential ripeness, whatever its “continuing vitality,” id. at 167, are different questions, supra at 9.

11

Chill itself is a harm. E.g., id.; Speech First, Inc.

v. Fenves, 979 F.3d 319, 330-31 (5th Cir. 2020) (quoting Houston Chronicle v. City of League City, 488

F.3d 613, 618 (5th Cir. 2007)); NRA v. Magaw, 132

F.3d 272, 285 (6th Cir. 1997) (quoting Dombrowski v.

Pfister, 380 U.S. 479, 486 (1965)).

B. The very ‘existence of [law] implies a

threat to [enforce/]prosecute.’

Whichever way pre-enforcement-speech-law

challengers seek to establish standing, they must

demonstrate credible fear of enforcement/prosecution

under injury-in-fact. Supra at 7, 8-9.

What demonstrates such fear? The answer is

simple: Challengers’ doing or seeking to do what is

“proscribed by” law, supra at 7 (quoting Anthony

List, 573 U.S. at 159 (quoting, in turn, Babbitt, 442

U.S. at 298)),12 objectively leads to credible fear of

enforcement/prosecution, see, e.g., Fenves, 979 F.3d

at 337 (rhetorically asking why law would exist

without enforcement/prosecution).

The very “existence of [law] implies a threat to

[enforce/]prosecute, so pre-enforcement challenges

are proper under Article III, because a probability of

future injury counts as ‘injury’ for purposes of standing.” Barland, 664 F.3d at 147 (original brackets

omitted) (quoting Bauer v. Shepard, 620 F.3d 704,

708 (7th Cir. 2010)); see also File v. Martin, 33 F.4th

12 Younger, 401 U.S. at 42, challengers lacking such facts

lacked standing.

12

385, 389 (7th Cir. 2022) (similar post-Anthony List);

accord Parents Defending Educ. v. Linn Mar Cmty.

School Dist., 83 F.4th 658, 667 (8th Cir. 2023)

(“When a course of action is within the plain text of a

policy, a ‘credible threat’ of enforcement[/prosecution] exists.” (quoting Alexis Bailly Vineyard, Inc. v.

Harrington, 931 F.3d 774, 778 (8th Cir. 2019))).

C. The enforcement/prosecution ‘threat is

latent in the existence of the’ law. The

law’s ‘mere existence risks chilling First

Amendment rights.’

In other words, the enforcement/prosecution

“threat is latent in the existence of the” law. E.g.,

Fenves, 979 F.3d at 336 (quoting Majors v. Abell, 317

F.3d 719, 721 (7th Cir. 2003)); Cal. Pro-Life Council,

Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)

(same); accord Children’s Healthcare, 92 F.3d at

1416 n.10 (recalling, from a pre-enforcement challenge, a “threat of criminal penalty” for not signing a

required declaration (citing Zielasko, 873 F.2d at

958-59)).

This is particularly—but not only—so under the

third way of establishing standing, supra at 9: The

law’s “mere existence risks chilling First Amendment rights.” N.C. Right to Life, Inc. v. Bartlett, 168

F.3d 705, 711 (4th Cir. 1999); accord Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660

(5th Cir. 2006) (“a chilling of speech because of the

mere existence of an alleged[] vague or overbroad

statute can be sufficient injury to support standing”).

13

D. Alternatively, if law bans, otherwise

limits, or regulates speech, ‘there is a

presumption of a credible threat of’ enforcement/prosecution.

Alternatively, if law

● bans,

● otherwise limits, or

● regulates, i.e., requires disclosure of,

speech, supra at 8 & nn.7-8, “there is a presumption

of a credible threat of” enforcement/prosecution. Va.

Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 388

(4th Cir. 2001) (citing N.C. Right, 168 F.3d at 710);

accord N.H. Right, 99 F.3d at 15 (holding that, absent compelling contrary evidence, courts presume a

credible threat of (enforcement/)prosecution in preenforcement challenges to law regulating speech

(collecting authorities)), quoted in Fenves, 979 F.3d

at 335.

“This presumption is particularly appropriate

[if—but not only if—law] chill[s] First Amendment

rights.” Va. Soc’y, 263 F.3d at 388 (citing N.C. Right,

168 F.3d at 710).

14

E. Neither nonbinding assurances from

government that it will refrain from enforcing, or prosecuting violations of,

challenged law—nor incorrect denials

that law applies—deprive challengers of

standing, render claims unripe, or deprive challengers of irreparable harm.

Yet what if government—to whatever extent or

by whatever means—issues some nonbinding assurance that it will refrain from enforcement/prosecution?

That will not do.

“Unguided regulatory discretion and the potential for regulatory abuse are the very burdens to

which ... speech must never be subject.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d

864, 873 n.8 (8th Cir. 2012) (en-banc) (quoting N.C.

Right to Life, Inc. v. Leake, 525 F.3d 274, 290 (4th

Cir. 2008)).

Speakers “can’t rely on [government’s] unofficial[, i.e., nonbinding,] expression of intent to refrain

from enforcing,” or prosecuting violations of, its law.

Wis. Right to Life, Inc. v. Barland, 751 F.3d 804,

828-29 (7th Cir. 2014); cf. 281 Care Comm. v. Arneson, 638 F.3d 621, 628 (8th Cir. 2011) (“official,” i.e.,

binding). So no such assurance from government

that it will refrain—to whatever extent or by whatever means, e.g., Fenves, 979 F.3d at 337 (enforcement/prosecution

disavowals)—from

enforcement/prosecution

15

● deprives challengers of standing, see id.

(doubting such disavowals and addressing

standing); Citizens for Responsible Gov’t

State PAC v. Davidson, 236 F.3d 1174,

1192-93 (10th Cir. 2000) (addressing

standing); Vt. Right, 221 F.3d at 383-84

(same); N.C. Right, 168 F.3d at 711 (same),

or

● renders claims unripe, see Walsh, 714

F.3d at 691 (addressing ripeness).

Triggering at 72 n.203. “Holding otherwise would

place ‘First Amendment rights “at the sufferance

of”’” government. Id. (quoting Vt. Right, 221 F.3d at

383 (addressing standing (quoting, in turn, N.C.

Right, 168 F.3d at 711))). But there is more:

Incorrectly denying ... speech law applies

also does not negate justiciability. See

Barland, 664 F.3d at 147 (addressing

standing). Government need not say such

law applies for claims to be justiciable. See

Walsh, 714 F.3d at 691 & n.8 (addressing

ripeness).

Nor do such assurances or such denials deprive those challenging law of irreparable

harm. Otherwise, the Barland panels, Citizens for Responsible Government, Vermont

Right, North Carolina Right, and Walsh

would have denied injunctions, because irreparable harm is a prerequisite for both

preliminary injunctions, Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 20

16

(2008), and permanent injunctions, United

Fuel Gas Co. v. R.R. Comm’n of Ky., 278

U.S. 300, 310 (1929). Such assurances or

such denials do not diminish, much less

eliminate, irreparable harm, because they

do not bind government officials. Government officials are free to change their

minds, and the law does not require trusting them, especially after United States v.

Stevens holds “the First Amendment protects against the Government; it does not

leave us at the mercy of noblesse oblige. We

would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” 559 U.S. 460,

480 (2010) (citing Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473 (2001)).

Triggering at 72 n.203; see also Free Speech Coal.,

Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 528, 539 n.15,

545 (3d Cir. 2012) (quoting and following Stevens,

130 S.Ct. 1577, 1591 (2010), while reversing the dismissal of a First Amendment claim on which the

challengers sought a preliminary injunction).

Government’s “insinuat[ing]” it “might not enforce” law against, or prosecute, challengers would

be “disingenuous” if the law applies and others follow it. Walsh, 714 F.3d at 691 (addressing ripeness)

(emphasis omitted).

Even if government, rather than merely

“insinuat[ing],” id., adopted a policy to refrain—to

whatever extent or by whatever means—from en-

17

forcement/prosecution, that would undermine neither

● standing,

● ripeness, nor

● irreparable harm,

because such a policy, unlike a statute or regulation,

does “not carry the binding force of law. Th[ose] who

adopted the policy might be replaced with [others]

who disagree with it, or some of th[ose who approved

it] might change their minds.” Va. Soc’y, 263 F.3d at

388 (addressing standing (citing Chamber of Com. v.

FEC, 69 F.3d 600, 603 (D.C. Cir. 1995))).

F. Before raising a First Amendment claim

in a federal court, challengers need not

raise it in a state forum, exhaust administrative remedies, or seek advice, including advisory opinions, from government officials.

Before raising a First Amendment claim in a

federal court, challengers need not raise it in a state

forum, see Vt. Right, 221 F.3d at 382 n.1 (“there is no

requirement that a plaintiff challenging the facial [or

as-applied] validity of a state statute first raise its

claim in state court” (citing Am. Booksellers, 484

U.S. at 392-93; Babbitt, 442 U.S. at 298-99)), or exhaust administrative remedies, Patsy v. Board of

Regents, 457 U.S. 496, 516 (1982).

And challengers need not seek advice, Walsh,

714 F.3d at 691 & n.8, including advisory opinions,

18

from government officials before seeking to vindicate

First Amendment rights in federal court, see Citizens

United, 558 U.S. at 335-36 (addressing advisory

opinions), superseding McConnell v. FEC, 540 U.S.

93, 170 n.64 (2003) (same); N.C. Right, 525 F.3d at

296 (same). Cf. Citizens United, 558 U.S. at 324

(“The First Amendment does not permit laws that

force speakers to retain a campaign[-]finance attorney, conduct demographic[-]marketing research, or

seek declaratory rulings before discussing the most

salient political issues of our day.”).

III. The Tenth Circuit’s standing analysis is incorrect. It is way too stringent. Way too

stringent.

The Tenth Circuit’s conclusion that RGF has

chill standing (Rio Grande, 57 F.4th at 1162-63) is

correct.

The Tenth Circuit’s standing analysis, however,

is incorrect. It is way too stringent. Way too stringent. The Tenth Circuit thereby splits with multiple

circuits, supra at 9-17, on chill standing.

For challengers asserting chill standing, the

2023 Tenth Circuit Rio Grande panel holds that

challengers

in a suit for prospective relief based on a

“chilling effect” on speech can satisfy the

requirement that their claim of injury be

“concrete and particularized” by (1) evidence that in the past they have engaged

19

in the type of speech affected by the challenged government action; (2) affidavits or

testimony stating a present desire, though

no specific plans, to engage in such speech;

and (3) a plausible claim that they presently have no intention to do so because of a

credible threat that the statute will be enforced.

(Rio Grande, 57 F.4th at 1161 (emphasis added)

(quoting Initiative & Referendum Inst. v. Walker, 450

F.3d 1082, 1089 (10th Cir. 2006) (en-banc)).)

Please notice the emphasized can. Id.; see also

Peck v. McCann, 43 F.4th 1116, 1129-30 (10th Cir.

2022) (“can”) (quoting Walker, 450 F.3d at 1088-89);

Rio Grande Found. v. City of Santa Fe, 7 F.4th 956,

959 (10th Cir. 2021) (“can”) (quoting Walker, 450

F.3d at 1089); cf. Voter Reference Found. v. Torrez,

160 F.4th 1068, 1078 (10th Cir. 2025) (“may”).

Elsewhere, the Tenth Circuit has used must,

not can. Chiles v. Salazar, 116 F.4th 1178, 1195

(10th Cir. 2024), rev’d on other grounds, 146 S.Ct.

1010 (2026), discussed infra at 23; Wyo. Gun Owners

v. Gray, 83 F.4th 1224, 1239 (10th Cir. 2023). For

chilled challengers to have standing under Chiles

and Wyoming Gun, all three elements are mandatory. Not one or two. All three.

Discretion under can is gone under must. Yet

whichever word applies under Tenth Circuit law, the

first and third elements of the Tenth Circuit’s Walker test are erroneous.

20

A. The first element of the Tenth Circuit’s

Walker test is incorrect.

Whatever “type of speech” means, supra at 19,

the Walker test’s first element is incorrect. Notwithstanding this element, supra at 18-19, speakers other than those who “have engaged in the type of

speech affected by the challenged government action,” e.g.,

● new speakers and

● previous speakers who have not previously “engaged in the type of speech affected by the challenged government action,”

can have chill standing too. See, e.g., Walker, 450

F.3d at 1089 (“people have a right to speak for the

first time”); Barland, 664 F.3d at 144, 147 (previous

speaker newly seeking to receive contributions—

beyond a contribution limit—for independent spending for political speech).

B. The second element of the Tenth Circuit’s Walker test rightly requires no

specificity.

The Walker test’s second element requires “no

specific plans” for their speech. Supra at 19. This is

correct. Standing, supra at 6-9, requires no such

specificity.

21

C. The third element of the Tenth Circuit’s

Walker test derails.

In analyzing the Walker test’s third element,

the Tenth Circuit inquires after “a credible threat

that the [law] will be enforced.” Supra at 19.

That is roughly on track with Babbitt and

American Booksellers, supra at 7, but then the third

element derails with this:

“The mere presence on the statute books of

an unconstitutional statute, in the absence

of enforcement[/prosecution] or credible

threat of enforcement[/prosecution], does

not entitle any[ plaintiffs] to sue, even if

they allege an inhibiting effect on constitutionally protected conduct prohibited by

the statute.” Winsness v. Yocom, 433 F.3d

727, 732 (10th Cir. 2006). Instead, “to satisfy Article III, the plaintiff[s’] expressive

activities must be inhibited by ‘an objectively justified fear of real consequences.’”

Id. (quoting D.L.S. v. Utah, 374 F.3d 971,

975 (10th Cir. 2004)).

Chiles, 116 F.4th at 1198. That is incorrect for two

reasons:

● Whether challenged law is “unconstitutional,” id., goes to the merits, not standing. Standing and the merits are separate,

id. at 1196 n.15, and

22

● Regardless of whether there has been

“enforcement”/prosecution, supra at 21,

law’s “mere presence on the ... books” causes a “credible threat of enforcement”/prosecution; no separate “objectively justified

fear of real consequences” is necessary to

demonstrate “credible fear of enforcement”/prosecution. See supra at 11-17 (explaining why).

D. The Tenth Circuit, already in a hole on

the Walker test’s third element, keeps

digging.

But there is more. The Tenth Circuit, already in

a hole on the Walker test’s third element, supra at

21-22, keeps digging by saying the Tenth Circuit

“has identified ‘at least three factors to be

used in determining a credible fear of [enforcement/]prosecution: (1) whether the

plaintiff showed past enforcement[/prosecution] against the same conduct; (2)

whether authority to initiate charges was

not limited to a prosecutor or an agency

and, instead, any person could file a complaint against the plaintiffs; and (3) whether the state disavowed future enforcement[/prosecution].’”

Chiles, 116 F.4th at 1198 (quoting Peck, 43 F.4th at

1132 (quoting, in turn, 303 Creative LLC v. Elenis, 6

23

F.4th 1160, 1174 (10th Cir. 2021)13 (quoting, in turn,

Anthony List, 573 U.S. at 164-65))), rev’d on other

grounds, 146 S.Ct. at 1019 n.* (stating cursorily that

establishing credible fear requires “[n]o more” than

government’s (1) defending the law in lower courts

and (2) not disavowing enforcement/prosecution, and

incorrectly believing the Tenth Circuit agreed). Saying credible fear does not require more than (1) and

(2) is t-e-c-h-n-i-c-a-l-l-y correct, yet the Court did

not reach this: Far less is a-c-t-u-a-l-l-y required.

Supra at 11-23; infra at 23-29.

The Court should reverse whatever remains of

the Tenth Circuit’s three factors post-Chiles.

All “three factors” on credible fear, supra at 22,

are incorrect.

1. The Tenth Circuit’s first crediblefear factor is incorrect.

As to the first credible-fear factor: Whatever

“the same conduct,” id., means, the Court has repeatedly held pre-enforcement challengers can have

standing without any enforcement/prosecution, 281

Care, 638 F.3d at 628 (citing Babbitt, 442 U.S. at

302; Doe v. Bolton, 410 U.S. 179, 188 (1973)), followed in 281 Care Comm. v. Arneson, 766 F.3d 774,

781 (8th Cir. 2014) (post-Anthony List). Thus,

13 Rev’d on other grounds, 600 U.S. 570, 587-92 (2023)

(merits, not standing).

24

● enforcement/prosecution is unnecessary

to establish standing, Fenves, 979 F.3d at

336 (citing Carmouche, 449 F.3d at 660),

and

● enforcement/prosecution’s absence does

not undermine standing, id., except “in extreme cases approaching desuetude,” 281

Care, 638 F.3d at 628 (citing St. Paul Area

Chamber of Com. v. Gaertner, 439 F.3d

481, 487 (8th Cir. 2006))).

Asserting otherwise “misses the point.” Fenves, 979

F.3d at 337 (quoting Speech First, Inc. v. Schlissel,

939 F.3d 756, 766 (6th Cir. 2019)).

2. The Tenth Circuit’s second crediblefear factor is incorrect.

As to the second credible-fear factor, supra at

22: Does “authority to initiate charges [being] limited to a prosecutor or an agency” really undermine

standing? Does that make sense? No, because that

presumes trust in “a prosecutor or an agency.” The

First Amendment condones no such trust, especially

after Stevens, supra at 16. Such limits do not undermine standing, and their absence is unnecessary

to establish standing. See, e.g., Barland, 664 F.3d at

143, 147 (holding that a challenger in a state with

such limits had standing).

25

3. The Tenth Circuit’s third crediblefear factor is incorrect.

As to the third credible-fear factor, supra at 22:

Nonbinding enforcement/prosecution disavowals do

not undermine standing, and their absence is unnecessary to establish standing. Compare supra at 14

(disavowals) with supra at 9-17 (standing).

Which brings us to Anthony List.

E. The Tenth Circuit misunderstands Anthony List. The Tenth Circuit’s three

credible-fear factors are not really factors in, but are facts of, Anthony List.

Courts must not turn facts of Anthony

List—an easy case on standing—into

factors that, to whatever extent, limit

challengers’ standing.

Where did the Tenth Circuit get those “three

factors” on credible fear, supra at 22? Please follow

the trail. It leads to Anthony List. Supra at 23.

The fundamental problem here is that those alleged “three factors,” supra at 22, are not really factors in, but are facts of, Anthony List, 573 U.S. at 164

(“there is a history of past enforcement here”); id.

(“authority to file a complaint with the Commission

is not limited to a prosecutor or an agency”); id. at

165 (“respondents have not disavowed enforcement if

petitioners make similar statements in the future”).

None of those three facts is a factor limiting other

chilled challengers’—or, for that matter, any other

26

challengers’—standing. Supra at 23-25 (addressing

the “three factors”).

The credible-fear facts of Anthony List, 573 U.S.

at 164-67, merely made Anthony List an easy case on

credible fear. Other facts, id. at 161-63, further made

Anthony List an easy case on standing overall. It was

not even a close call. The decision was unanimous.

Id. at 150, 168.

To look at this in a slightly different way,

the ... Court held, and rightly so, that under the facts that the Anthony List challengers presented, they had standing. [Id.

at 161-67.]

It doesn’t follow, however, that challengers

presenting less-easy facts lack standing.

Challengers can present less-easy facts

and still have standing. [See supra at 9-17

(describing chill standing).]

Believing otherwise indulges the fallacy of

the inverse: Starting with the statement,

“If A, then B,”14 and concluding from that,

“If not A, then not B.”15 One can’t start

with the former and, without more, conclude the latter. [See United States v.

Lopez, 514 U.S. 549, 595 (1995) (Thomas,

14 E.g.: “If challengers present Anthony List facts, then

they have standing.”

15 E.g.: “If challengers do not present Anthony List facts,

then they do not have standing.”

27

J., concurring) (noting that this “inference

… cannot be drawn”).]

Randy Elf, High Court Should Clarify Anthony List,

POST-JOURNAL, April 18, 2025, at A4 (italics added),

available at https://www.postjournal.com/opinion/localcommentaries/2025/04/high-court-should-clarifyanthony-list.

Courts must not turn facts of Anthony List—an

easy case on standing—into factors that, to whatever

extent, limit challengers’ standing.

F. The Anthony List opinion could have

deterred the Tenth Circuit’s misunderstanding on credible fear.

The Anthony List opinion could have deterred

the Tenth Circuit’s misunderstanding on credible

fear.

Saying something such as this may have

sufficed to deter the fallacy of the inverse

in lower courts: “Anthony List presents an

easy case on standing. We do not hold that

challengers not presenting Anthony List’s

facts lack standing. That is not before us.

We leave such a question for another day.”

Without such a clarification, the Anthony

List opinion has created confusion, and the

“at least three factors” language in the

Tenth Circuit ensued.

28

Id. (italics added); cf. Triggering at 51-52 & nn.97103, 80 & nn.252-56, 84 & nn.272-75 (describing a

misunderstanding of Citizens United, 558 U.S. at

366-71, and explaining that the misunderstanding is

“at the epicenter of the circuit splits,” which “have

become ever more complex circuit chasms”).

Without such a clarification, Anthony List opened the door to lower courts’, to varying extents, turning Anthony List facts into factors limiting—or at

least in effect limiting—challengers’ standing. Supra

at 22-25; Boone Cty. Republican Party Exec. Comm.

v. Wallace, 132 F.4th 406, 416 (6th Cir. 2025) (considering Anthony List facts as credible-fear factors

(quoting Online Merchs. Guild v. Cameron, 995 F.3d

540, 550 (6th Cir. 2021) (quoting, in turn, McKay v.

Federspiel, 823 F.3d 862, 868-69 (6th Cir. 2016)

(quoting, in turn and inter alia, Anthony List, [573

U.S. at 164-65,] 134 S.Ct. 2334, 2345 (2014))))); cf.

Schrader v. Dist. Att’y of York County, 74 F.4th 120,

125 (3d Cir. 2023) (unnecessarily, supra at 24-25,

addressing disavowals’ absence and past enforcement without elevating them to factors); Vitagliano

v. Cty. of Westchester, 71 F.4th 130, 138 (2d Cir.

2023) (same) (quoting Tweed-New Haven Airport

Auth. v. Tong, 930 F.3d 65, 71 (2d Cir. 2019)); Davison v. Randall, 912 F.3d 666, 678-79 (4th Cir.

2019) (same) (quoting, inter alia, Anthony List, [573

U.S. at 164,] 134 S.Ct. at 2345); Speech First, Inc. v.

Cartwright, 32 F.4th 1110, 1120 (11th Cir. 2022)

(unnecessarily musing that “the threat of formal discipline or punishment is relevant to the inquiry, but

it is not decisive”); see also Christian Healthcare

Ctrs., Inc. v. Nessel, 117 F.4th 826, 848 (6th Cir.

2024) (same as Boone).

29

The Court should close that door, particularly

since the misunderstanding is partly due to Anthony

List, which could have deterred the misunderstanding. Supra at 27.

IV. The 2025 Tenth Circuit panel conflated

Track 1, political-committee(-like) burdens

and Track 2, non-political-committee disclosure requirements.

At the certiorari stage, Amicus mostly leaves

the merits in others’ capable hands except as follows.

Applying constitutional scrutiny, the Court has

established the two-track system under which government may, subject to further inquiry, regulate—

i.e., require disclosure of—political speech. Buckley,

424 U.S. at 63-64, 79-82; Triggering at 35-37 & nn.112 (contrasting Track 1, political-committee(-like)

burdens and Track 2, non-political-committee disclosure requirements).

RGF challenges solely Track 2, non-politicalcommittee-disclosure requirements, compare (CERT.PET. at 4-9) with Triggering at 56-57 & nn.125-28

(describing Track 2 law (citations omitted)), yet the

2025 Tenth Circuit panel mistakenly overlooked

binding precedent, mistakenly conflated the two

tracks, and ironically called Amicus’s 2024 analysis—which primarily urges avoiding these panel

mistakes (10TH-CIR.-DKT.-32, submitted at 10THCIR.-DKT.-010111072719, available at

https://ssrn.com/abstract=5284465 (redlined))—“not

useful.” (10TH-CIR.-DKT.-54 at 3-4, 35 n.12, CERT.-

30

PET. at APP.12-13 (addressing Track 1, politicalcommittee burdens as if they were at issue here), 4041 n.12, 154 F.4th 1213, 1218, 1230 n.12 (10th Cir.

2025); id. at 1, CERT.-PET. at APP.44, 154 F.4th at

1231 (Eid, J., dissenting) (same conflation).)

In urging the en-banc appellate court to consider the appeal, the argument differed, so Amicus

wrote a different brief: Amicus’s Track-2-focused

2025 analysis.

Surely it would be “useful,” supra at 29, to highlight, e.g.,

● two Tenth Circuit precedents distinguishing the tracks and

● four conflicting Tenth Circuit precedents,

including the panel’s opinion, on Track 2

law.

(10TH-CIR.-DKT.-63 at 8-15, submitted at 10TH-CIR.DKT.-61-2, available at

https://ssrn.com/abstract=5284465.)

Or so one might think.

But the en-banc Tenth Circuit (10TH-CIR.-DKT.71 at 2, CERT.-PET. at APP.2, 162 F.4th 1251, 1251

(10th Cir. 2025) (en-banc)) rejected without explanation Amicus’s Track-2-focused 2025 analysis (10THCIR.-DKT.-63, submitted at 10TH-CIR.-DKT.-61-2) and

separately overlooked the difference between ripeness and mootness, supra at 5, by mistakenly rejecting as moot Amicus’s separate motion that never

even ripened. The motion never ripened, because—to

31

use the motion’s own words—“the [c]ourt [neither]

granted rehearing [nor] vacated the panel’s opinion.”

(10TH-CIR.-DKT.-68 at 1, submitted at 10TH-CIR.DKT.-67, available at

https://ssrn.com/abstract=5284465.)

Yet what happened in the Tenth Circuit vis-àvis Amicus—though erroneous, supra at 29-31—is no

reason to grant certiorari.

The reasons to grant certiorari involve standing, supra at 4-29, and the merits, supra at 29-30.

––––––––♦––––––––

32

CONCLUSION

The Court should grant certiorari with an eye

toward

● setting forth the standing analysis, supra

Parts I-II,

● affirming the Tenth Circuit’s conclusion

that RGF has standing, supra at 18,

● reversing the Tenth Circuit’s standing

analysis, supra Part III, and

● proceeding to the merits, which Amicus

mostly leaves in others’ capable hands at

the certiorari stage, supra Part IV.

Respectfully submitted,

RANDY ELF

Counsel of Record

Post Office Box 525

Lakewood, N. Y. 14750

Telephone (202) 423-2122

ForEFilingOnly@gmail.com

May 18, 2026

Counsel for Amicus