11th Circuit to David Dermer — Next Time, Get Arrested (Just to be Safe)!

I have never heard of this stupid Miami-Dade Ordinance, but David Dermer has and sued to have it declared unconstitutional:

The Ordinance provides:

It shall be unlawful for any person, entity, or elector intentionally to make or cause to be made any false statement concerning the contents or effect of any petition for initiative, referendum, or recall submitted pursuant to Article 7 of the Miami-Dade County Home Rule Charter to any person who is requested to sign any such petition or who makes an inquiry with reference to any such petition and who relies on such statement.

Ok, that is just asinine.It is so wildly, flagrantly unconstitutional (it includes criminal penalties!) that if the ordinance appeared on a Con Law exam it would be what the students call “a gimmie.”

Anyway, in an extensive and well-written order, Judge Gold properly found that the Ordinance was overbroad on its face, vague, and failed a strict strutiny analysis.

Today, however, the 11th Circuit reversed Judge Gold and said Dermer lacks standing:

The sole injury that Dermer alleges is “a chilling effect on [his] willingness to participate in any current referendum or to become involved in any initiating of a referendum on any of the important matters of public interest about which [he] care[s] deeply.” (R.E. Tab 50-2 at 2.) While true that “it is not necessary that [a plaintiff] 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), a plaintiff still must demonstrate “an actual and well-founded fear that the law will be enforced against [him],” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Dermer, however, failed to provide the court with anything more than generalizations. He refrained from submitting any detail, such as when, where, or how he intends to exercise his right to free speech in the future, that illuminates the specifics of his claimed injury. Without such elaboration, his mere assertion of a chill is insufficient to demonstrate an injury in fact.

I don’t have a problem with this, but question — is it possible Dermer didn’t provide (or “refrained” to provide — whatever that means) this specified level of detail because Judge Gold didn’t think it was necessary?

If that’s true, rather than order the action dismissed, wouldn’t it have been better to send the case back to Judge Gold and see if Dermer can establish these additional details in light of the 11th Circuit’s opinion?