In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3433

MEGAN LAWSON,

Plaintiff-Appellant,

v.

CURTIS HILL,

Defendant-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:03-CV-261 AS—Allen Sharp, Judge.

____________

ARGUED FEBRUARY 19, 2004—DECIDED MAY 24, 2004

____________

Before CUDAHY, POSNER, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. The district judge dismissed this

suit to enjoin, under 42 U.S.C. § 1983, the prosecution of the

plaintiff under Indiana’s flag-desecration statute. The

statute provides that “a person who knowingly or intentionally mutilates, defaces, burns, or tramples any United States

flag, standard, or ensign commits flag desecration, a Class

A misdemeanor,” Ind. Code § 35-45-1-4(a), for which the

maximum punishment is a year in prison and a $5,000 fine.

§ 35-50-3-2. The judge ruled that the plaintiff lacked standing under Article III and that anyway it would violate
2 No. 03-3433

comity to enjoin a public official on the ground on which the

injunction was sought.

Megan Lawson was a 17-year-old high-school student in

Goshen, a town in Elkhart County, when she filed this suit.

Earlier the same year she had participated in several

demonstrations against the war in Iraq and in one of them

had displayed an American flag owned by her on which she

had painted a peace symbol. Goshen’s chief of police was

present at that demonstration, called the altered flag

“contraband,” and said that it was illegal to paint a peace

symbol on an American flag. But he didn’t arrest or even

threaten to arrest any of the demonstrators; instead, having

declared his opinion, he withdrew from the distasteful

scene. After a similar demonstration a member of the county

board was reported in a local newspaper to have called for

the arrest of the student demonstrators. But again none of

them was arrested or threatened with arrest or otherwise

harassed, denounced, etc.

Curtis Hill, the defendant, is the Prosecutor of Elkhart

County, an elected office. At some point he learned about

the demonstrations and told both the police chief of Goshen,

and the county’s sheriff, not to investigate whether the

students had violated the flag-desecration statute. We do

not know when anyone was last prosecuted under the

statute. We know only that Hill has never prosecuted anyone under it and is unaware of any prosecutions in other

counties.

Apparently Lawson was not concerned that the Goshen

police might arrest her if she continued to desecrate the flag,

for she didn’t name the police chief, or the county commissioner who had urged the arrest of the student desecrators,

as defendants. The only defendant is the county prosecutor.

But far from having given any indication of wanting to

enforce the flag-desecration statute against Lawson or other
No. 03-3433 3

students, Hill as we said had told the police not to investigate whether the students were violating the statute. The

reason for his forbearance was that the U.S. Supreme Court

has held that the First Amendment forbids punishing

people who desecrate the American flag (although it does

not forbid punishing the theft of an American flag by

someone who means to burn or otherwise deface it or the

burning of it in circumstances that would create a safety

hazard) in order to make a political statement—which is an

exact description of Lawson’s actual and intended conduct.

United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson,

491 U.S. 397 (1989); Spence v. Washington, 418 U.S. 405 (1974)

(per curiam). Of course it is possible that an elected prosecutor would institute a prosecution that violated the Constitution. He might be ignorant of the relevant constitutional law

or, more likely, might see an opportunity to reap political

gains from prosecuting people whose conduct though

lawful had outraged the community. But Lawson had no

reason when she filed her suit to suppose that Hill would do

such a thing. And if he did, she would have an adequate

remedy—to interpose the First Amendment as a defense to

the prosecution.

Article III of the Constitution bars a federal court from

enjoining threatened action that the plaintiff has no reason

to suppose even remotely likely ever to materialize; there

must be a real dispute in the sense that its resolution is

likely to have tangible consequences for the plaintiff. Poe v.

Ullman, 367 U.S. 497 (1961) (plurality); Wisconsin Right to

Life, Inc. v. Paradise, 138 F.3d 1183, 1185-86 (7th Cir. 1998).

When she sued, Lawson had no reason to think she had any

dispute with Hill, much less one that might have tangible

consequences for her. So far as appeared, they were in

agreement, and her dispute if any was with nonparties, the

police chief and the county board member.
4 No. 03-3433

Lawson argues that the mere existence of the flag-desecration statute establishes a threat of prosecution sufficiently

great to allow her to sue. She cites language to support this

argument from numerous cases, such as the following

language from our decision, on which she relies heavily, in

Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (citations

omitted): “A plaintiff who mounts a pre-enforcement

challenge to a statute that he claims violates his freedom of

speech need not show that the authorities have threatened

to prosecute him; the threat is latent in the existence of the

statute.” But we added an important qualification in the

next sentence: “Not if it clearly fails to cover his conduct.”

Id. This might be because his conduct was clearly outside

the statute’s scope. Or because the statute was clearly

unconstitutional, either entirely so or as applied to the

plaintiff’s conduct. The meaning of a statute or other

enactment resides not only in its words but also in the

meaning impressed on those words by authoritative judicial

decisions. Otherwise one might suppose that the First

Amendment forbade only Congress to abridge freedom of

speech, and allowed the President to do so freely; or that the

Eleventh Amendment merely forbade a citizen of one state

to sue another state in federal court, and left him free to sue

his own state in federal court. Of course a person might

have the misfortune to be prosecuted under a clearly

unconstitutional statute; but by the same token he might be

prosecuted under a statute the text of which clearly failed to

cover his conduct. Neither risk would justify an injunction

without some indication of a nontrivial probability of

prosecution. H.L. v. Matheson, 450 U.S. 398, 405-07 (1981);

United Public Workers of America v. Mitchell, 330 U.S. 75, 89-

91 (1947); Wisconsin Right to Life, Inc. v. Paradise, supra, 138

F.3d at 1186-87; SOB, Inc. v. County of Benton, 317 F.3d 856,

865-66 (8th Cir. 2003); Doe v. Duling, 782 F.2d 1202, 1206-09

(4th Cir. 1986); compare Navegar, Inc. v. United States, 103

F.3d 994, 999-1001 (D.C. Cir. 1997).
No. 03-3433 5

The qualification “Not if it clearly fails to cover his

conduct” was inapplicable in Majors itself. The statute in

question—another Indiana statute, this one regulating political advertising—was ambiguous. It seemed on its face to

cover the plaintiff’s conduct, and although if so interpreted

it might violate the First Amendment, this was not certain.

We certified the question of interpretation to the Indiana

Supreme Court, which ruled both that the statute covered

the plaintiff’s conduct and that, even so, it was constitutional. And we agreed. Majors v. Abell, 361 F.2d 349, 355 (7th

Cir. 2004). So the plaintiff had in fact been in some danger

of being prosecuted. Lawson, so far as appears, was not.

The statute books are littered with provisions that if read

literally and without regard to their interpretive history

would prohibit innocuous or even privileged conduct.

See, e.g., William Michael Treanor & Gene B. Sperling,

“Prospective Overruling and the Revival of

‘Unconstitutional’ Statutes,” 93 Colum. L. Rev. 1902 (1993).

Do state legislatures have a duty to conform their statute

books to authoritative judicial interpretations? After Johnson

and Eichman, should every state have been obliged, on pain

of seeing its prosecutors enjoined, to rewrite its flag-desecration statute to create an express privilege for the conduct

held privileged in those cases? There is no such obligation,

see EEOC v. Illinois, 69 F.3d 167, 170 (7th Cir. 1995), yet a

claim that there is is implicit in this lawsuit.

Lawson points us to Hill’s deposition, in which he said he

didn’t think he had the authority to declare any Indiana

statute unconstitutional, and when asked “can you say definitively that you would never prosecute anyone for violation of” the flag-desecration statute, replied that “it would

be, in my estimation, inappropriate to speculate that we

would prosecute anybody for any particular violation . . .

without knowing what the circumstances of a particular
6 No. 03-3433

case would be.” When asked in what circumstances he

would prosecute someone under the flag-desecration statute, he repeated that he thought it would be inappropriate

for him to speculate; “my job is to determine and evaluate,

when particular facts arrive, whether or not there has been

an appropriate violation of a criminal statute.” He also

said that “if facts came before me with regard to [the flagdesecration] statute, certainly the dictates of Texas vs.

Johnson would be taken into consideration.” That was one

of the Supreme Court’s flag-burning decisions.

Hill’s statements, Lawson argues, did not add up to a

clear disavowal of an intention to prosecute her. But such

disavowals are important only in cases in which, without a

disavowal, the plaintiff seeking to enjoin enforcement

would have a reasonable basis for concern that he might be

prosecuted. See Hays v. City of Urbana, 104 F.3d 102, 103-04

(7th Cir. 1997); Presbytery of New Jersey of Orthodox

Presbyterian Church v. Florio, 40 F.3d 1454, 1468 (3d Cir.

1994). The disavowal might alleviate his concern, while

refusal to disavow would be a signal that his concern was

well founded. But without requiring well foundedness,

officials will be overwhelmed with requests for legal advice.

What if Lawson would like to chew bubble gum in

school—can she demand that Hill disavow any intention of

prosecuting her for such conduct and if he refuses seek to

enjoin him from prosecuting her for public indecency? If he

refused, she would not have standing to sue in federal court

because there is no danger that Hill would prosecute her for

public indecency for blowing bubbles; but neither is there

any danger that he would prosecute her for painting a peace

symbol on an American flag that she owns.

“[T]hat she owns . . .” is one clue to Hill’s reluctance to

offer the disavowal sought at his deposition. The Indiana

statute is not unconstitutional in all its possible applications.
No. 03-3433 7

Lawson presumably can be prosecuted for violating the

statute if she paints a peace symbol on her neighbor’s flag

without his consent, or, conceivably, if she tramples on it

not to make a political statement but to keep her feet from

getting wet. Cf. Texas v. Johnson, supra, 491 U.S. at 412-13 n.

8; Spence v. Washington, supra, 418 U.S. at 408-09. In other

words, the applicability of the statute to flag desecration

depends on the facts, so that the disavowal that Lawson

seeks would require an advisory opinion on the lawful

scope of the statute. There is no federal right to obtain

advisory opinions from local prosecutors. In addition, as an

elected official Hill is doubtless reluctant to express himself

publicly in a manner that would suggest he condoned flag

desecration. You can’t bring a federal suit just to put an

official on the spot.

Even if we are wrong to suppose the risk of prosecution

too remote to confer standing to sue on Megan Lawson (to

be clear, we don’t doubt that we’re right), the district judge

was right not to enter an injunction. The cases continue

to say that an injunction is an extraordinary remedy, that

there is no right to an injunction as there is to damages if

a wrong and an injury are proved, and that the decision

whether to issue an injunction is a matter of discretion. E.g.,

United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S.

483, 496-98 (2001); Weinberger v. Romero-Barcelo, 456 U.S. 305,

311-13 (1982); Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1203-

04 (7th Cir. 1996); United States v. Massachusetts Water

Resources Authority, 256 F.3d 36, 48 (1st Cir. 2001); 11A

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice & Procedure § 2942, pp. 37-44 (2d ed. 1995).

But there is a risk of misunderstanding if these familiar

formulas are taken literally. As we explained in Hoover v.

Wagner, 47 F.3d 845, 849-50 (7th Cir. 1995) (citations omitted), “There is no ‘right’ to an injunction, it is true, but only

in the rather unhelpful sense that an injunction may be
8 No. 03-3433

issued only in a case or class of cases where damages are

deemed an inadequate remedy. In this unhelpful sense, too,

an injunction might be thought ‘extraordinary’ relief

because damages are the ordinary relief. But it is not

extraordinary in the sense of being discretionary. . . . The

modern law of equity is a system of rules administered by

regular judges rather than a compendium of moral principles administered by ecclesiastical officials, as the Lord

Chancellors of England, who invented English equity

jurisprudence, originally were. In specific classes of case,

injunctions now issue pretty much as a matter of course.”

Yet because injunctions place defendants under threat of

prosecution for contempt of court and impose duties of

continuing enforcement on courts and often burden innocent third parties, courts do retain the authority to deny an

injunction even if a wrong is proved and a threatened harm

shown. A particularly appealing case for withholding

injunctive relief is, as we noted in Hoover, when an injunction is sought against the performance of public functions

by the officials of another sovereign (or, in the case of the

states of the United States, a quasi-sovereign). Id. at 850-51;

see also McKusick v. City of Melbourne, 96 F.3d 478, 487-89

(11th Cir. 1996). In Hoover it was a state judge and city police

that the plaintiffs wanted a federal court to enjoin. In this

case the plaintiff wants the court to place an elected state

prosecutor under an injunction so that if he should ever

prosecute the plaintiff she can ask the court to hold him in

contempt, thus turning the tables on the prosecutor and

making him a criminal defendant.

The issuance of such an injunction would place humiliating and potentially paralyzing restrictions on law enforcement. Cf. Younger v. Harris, 401 U.S. 37, 43-45 (1971); Hilton

v. Guyot, 159 U.S. 113, 163-64 (1895); EEOC v. Illinois, supra,

69 F.3d at 170. That is why federal courts refuse (it is not
No. 03-3433 9

because of the Anti-Injunction Act, 28 U.S.C. § 2283, which

does not apply to suits under 42 U.S.C. § 1983, Mitchum v.

Foster, 407 U.S. 225, 242-43 (1972)), other than in exceptional

circumstances well illustrated by Gilliam v. Foster, 75 F.3d

881, 903-05 (4th Cir. 1996) (en banc), to enjoin an ongoing

prosecution even when it is contended to violate the federal

Constitution. Younger v. Harris, supra; see also City of Los

Angeles v. Lyons, 461 U.S. 95, 112 (1983); Palmer v. City of

Chicago, 755 F.2d 560, 573-74 (7th Cir. 1985). The present

case is in one sense weaker, because Lawson is seeking to

prevent Hill from doing something that he has no intention

of doing. But in another sense it is stronger because the

plaintiff has no actual interest in obtaining an injunction,

since she is in no danger of being prosecuted under the

statute whose enforcement she seeks to enjoin. Placing Hill

under an injunction could be justified only on the basis of

profound and, so far as appears, unwarranted distrust of the

probity and professionalism of local prosecutors.

The suit was properly dismissed.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-24-04