FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JONATHAN LOPEZ, 

Plaintiff-Appellee,

v.

KELLY G. CANDAELE, in his

individual and official capacities

as member of the Los Angeles

Community College District Board

of Trustees; MONA FIELD, in her

individual and official capacities

as member of the Los Angeles

Community College District Board

of Trustees; GEORGIA L. MERCER,

in her individual and official

capacities as member of the Los

Angeles Community College 

District Board of Trustees; NANCY

PEARLMAN, in her individual and

official capacities as member of

the Los Angeles Community

College District Board of Trustees;

ANGELA J. REDDOCK, in her

individual and official capacities

as member of the Los Angeles

Community College District Board

of Trustees; MIGUEL SANTIAGO, in

his individual and official

capacities as member of the Los

Angeles Community College

District Board of Trustees; 

14351
SYLVIA SCOTT-HAYES, in her 

individual and official capacities

as member of the Los Angeles

Community College District Board

of Trustees; GENE LITTLE, in his

individual and official capacities

as Director of the Los Angeles

Community College District Office

of Diversity Programs; JAMILLAH

MOORE, in her individual and

official capacities as President of No. 09-56238 Los Angeles City College;

ALLISON D.C. No. JONES, in her individual

and official capacities as Dean of  2:09-cv-00995-

Academic Affairs at Los Angeles GHK-FFM

City College; CRISTY PASSMAN, in OPINION

her individual and official

capacities as Compliance Officer

at Los Angeles City College,

Defendants-Appellants,

and

JOHN MATTESON, in his individual

and official capacities as Professor

of Speech at Los Angeles City

College,

Defendant. 

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

March 3, 2010—Pasadena, California

Filed September 17, 2010

14352 LOPEZ v. CANDAELE
Before: Ronald M. Gould, Sandra S. Ikuta and

N. Randy Smith, Circuit Judges.

Opinion by Judge Ikuta

LOPEZ v. CANDAELE 14353
COUNSEL

Mary L. Dowell and David A. Urban, Liebert Cassidy Whitmore, P.C., Los Angeles, California, for the appellants.

David J. Hacker and Heather G. Hacker, Alliance Defense

Fund, Folsom, California; David A. French, Alliance Defense

Fund, Columbia, Tennessee, for the appellee.

Sam Kim and Michael L. Parker, Sam Kim and Associates,

P.C., Buena Park, California, for the appellee.

OPINION

IKUTA, Circuit Judge:

Today we consider a student’s First Amendment challenge

to a community college sexual harassment policy. First

Amendment cases raise “unique standing considerations,”

Ariz. Right to Life Political Action Comm. v. Bayless, 320

F.3d 1002, 1006 (9th Cir. 2003), that “tilt[ ] dramatically

toward a finding of standing,” LSO, Ltd. v. Stroh, 205 F.3d

1146, 1155 (9th Cir. 2000). Despite this lowered threshold for

establishing standing and the disturbing facts of this case, we

conclude that the student failed to make a clear showing that

his intended speech on religious topics gave rise to a specific

and credible threat of adverse action from college officials

under the college’s sexual harassment policy. Because the stu14356 LOPEZ v. CANDAELE
dent failed to carry the burden of proving he suffered an

injury in fact, he does not satisfy the “irreducible constitutional minimum of standing” necessary to challenge the policy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

I

For the limited purpose of reviewing the preliminary

injunction at issue, the salient facts are undisputed.

A

In the fall of 2008, plaintiff Jonathan Lopez was a student

at Los Angeles City College (LACC), which is one of the

public colleges within the Los Angeles Community College

District (the District). At the time Lopez attended LACC, the

District had promulgated a sexual harassment policy comprising a chapter of the District’s “Board Rules and Administrative Regulations,” as authorized under state law. See Cal.

Educ. Code §§ 66300, 70902. LACC is subject to the District’s regulations, including its sexual harassment policy.

Two sections of this sexual harassment policy are relevant

here. Section 15001 sets forth the District’s general policy on

this issue, stating in relevant part:

The policy of the Los Angeles Community College

District is to provide an educational, employment

and business environment free from unwelcome sexual advances, requests for sexual favors, and other

verbal or physical conduct or communications constituting sexual harassment. Employees, students, or

other persons acting on behalf of the District who

engage in sexual harassment as defined in this policy

or by state or federal law shall be subject to discipline, up to and including discharge, expulsion or

termination of contract. 

Section 15003(A) defines “sexual harassment” as including:

LOPEZ v. CANDAELE 14357
Unwelcome sexual advances, requests for sexual

favors, and other verbal, visual, or physical conduct

of a sexual nature, made by someone from or in the

workplace or in the educational setting, under any of

the following conditions: . . . (3) The conduct has the

purpose or effect of having a negative impact upon

the individual’s work or academic performance, or

of creating an intimidating, hostile or offensive work

or educational environment.1

According to the policy, the District’s Director of Affirmative Action Programs oversees the implementation of the sexual harassment policy, but may delegate these duties to an

individual Sexual Harassment Compliance Officer. District

officials may take disciplinary action only in accordance with

due process rights as well as any applicable collective bargaining agreement. For students, “disciplinary action” ranges

from verbal warnings to expulsion. For employees, “disciplinary action” ranges from verbal warnings to dismissals.

According to Allison Jones, LACC’s Dean of Academic

Affairs, neither LACC nor the District has enforced the sexual

harassment policy against any teacher, student or employee.

Lopez does not dispute this statement.

Sections 15001 and 15003 of the policy appear in various

other official documents. For example, the quoted portion of

Section 15001 appears twice in the LACC student handbook.

The “Rules for Student Conduct” section of the handbook

states that “[s]tudent conduct in all of the Los Angeles Com1The defendants argue that this version of the sexual harassment policy

is no longer applicable, as it was superseded in 2007 by a new policy that

redefined the term “sexual harassment,” and therefore Lopez’s challenge

is moot. We do not reach this argument, because we decide the case on

standing grounds. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,

549 U.S. 422, 431 (2007) (holding that there is “no mandatory sequencing

of jurisdictional issues,” and we have “leeway to choose among threshold

grounds for denying audience to a case on the merits” (citations and internal quotation marks omitted)). 

14358 LOPEZ v. CANDAELE
munity Colleges must conform to District and [LACC] rules

and regulations,” and that violations will result in disciplinary

action. In addition, the website of the District’s Office of

Diversity Programs contains relevant portions of Section

15003, and gives some examples of sexual harassment,

including “[v]erbal harassment,” “[d]isparaging sexual

remarks about your gender,” “[d]isplay of sexually suggestive

objects, pictures, cartoons, posters, screen savers,” and

“[m]aking unwelcome, unsolicited contact with sexual overtones (written, verbal, physical and/or visual contact).” The

website also offers “[s]imple guidelines for avoiding sexual

harassment,” which include the admonition, “If [you are]

unsure if certain comments or behavior are offensive do not

do it, do not say it.” The LACC Compliance Office’s website

likewise includes the relevant portions of Section 15003, and

defines one form of sexual harassment as “generalized sexist

statements, actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men.

Examples include insulting remarks; intrusive comments

about physical appearance; offensive written material such as

graffiti, calendars, cartoons, emails; obscene gestures or

sounds; sexual slurs, obscene jokes, humor about sex.”

B

During the fall semester, Lopez was a student in Speech

101, taught by Professor John Matteson. For one assignment,

Matteson directed his students to make an informative speech

on a topic of their choosing. Lopez is a devout Christian who

believes, as a tenet of his faith, that he must share his religious

beliefs with others. For this assignment, Lopez chose to speak

about God and the ways in which he had witnessed God act

both in his life and in the lives of others. In the course of giving his speech, Lopez read a dictionary definition of marriage

as being a union between a man and a woman, and read two

verses from the Bible.2 After Lopez made these statements,

2Though the text of Lopez’s speech is not in the record, Lopez’s appellate brief states that the speech quoted Romans 10:9 (“[t]hat if you confess

LOPEZ v. CANDAELE 14359
but while still in the middle of his speech, Matteson interrupted Lopez, called Lopez a “fascist bastard,” and refused to

allow Lopez to finish his speech. Matteson told the class that

anyone who was offended could leave. When no one left,

Matteson dismissed the class. In lieu of giving Lopez a grade,

Matteson wrote on Lopez’s speech evaluation form, “[a]sk

God what your grade is” and “pros[elytising] is inappropriate

in public school.” 

The day after this incident, Lopez met with Jones to complain about Matteson’s actions. As Dean of Academic Affairs,

Jones supervises the LACC faculty and oversees certain student matters and the policies and procedures that govern

LACC. Jones told Lopez to put his complaint against Matteson in writing. When Lopez delivered his written complaint

to Jones, Matteson observed this interaction. Matteson subsequently threatened Lopez, stating that he would make sure

that Lopez was expelled from school. 

On December 2, the day after this threat, Lopez turned in

another Speech 101 assignment. Lopez’s paper contained a

list of proposed topics for a persuasive speech, including one

on how to “exercise your freedom of speech right,” which

would include a discussion of how one should “[a]lways stand

up for what you believe in.” Matteson gave Lopez an “A” for

this assignment, but wrote the following below the “free

speech” proposed topic: “(Remember — you agree to Student

Code of Conduct as a student at LACC).” 

By this time, Lopez had obtained legal representation. On

the same day that Lopez submitted his list of proposed topics,

with your mouth, ‘Jesus is Lord,’ and believe in your heart that God raised

Him from the dead, you will be saved;”) and Matthew 22:37-38 (“Jesus

said to him, ‘You shall love the Lord your God with all your heart, with

all your soul, and with all your mind.’ This is the first and greatest commandment.”). 

14360 LOPEZ v. CANDAELE
Lopez’s lawyer sent Jones and Jamillah Moore, the LACC

President, a letter demanding that Lopez receive a fair grade

on his informative speech, that LACC discipline Matteson

and require him to make a public apology to Lopez, and that

LACC and its faculty provide written assurance that they

would respect Lopez and other students’ First Amendment

rights. 

Jones responded by letter two days later. The letter stated

that Jones had met with Lopez twice and had asked him to put

his complaints in writing and submit written corroboration of

his version of the informative speech incident from other students in the class. The letter also stated that Jones had started

a “progressive discipline process” with respect to Matteson,

but that both collective bargaining rules and LACC’s restrictions on discussing personnel matters prevented her from disclosing details about any discipline that Matteson might

receive. The letter made clear that “action is being taken, but

specific details may not be shared with Mr. Lopez or [his lawyer].” 

The same letter also reported that Jones had received statements from two students who were “deeply offended” by

Lopez’s informative speech. One student wrote that Lopez’s

speech “was not of the informative style that our assignment

called for, but rather a preachy, persuasive speech that was

completely inappropriate and deeply offensive.” The student

further stated that although she respected Lopez’s right to free

speech, “I also do not believe that our classroom is the proper

platform for him to spout his hateful propaganda.” The second

student wrote that “I don’t know what kind of actions can be

taken in this situation, but I expect that this student should

have to pay some price for preaching hate in the classroom.”

After quoting the two statements, however, the letter stated:

[r]egardless of the other students’ reactions to Mr.

Lopez’[s] speech, Mr. Matteson will still be disciplined. First amendment rights will not be violated

LOPEZ v. CANDAELE 14361
as is evidenced by the fact that even though many of

the students were offended by Mr. Lopez’[s] speech,

no action will be taken against any of them for

expressing their opinions. 

The letter also stated that Lopez would receive a “fair grade”

for both his informative speech and for the entire class. 

Lopez eventually received an “A” in the class, though he

alleged he never received a grade for his informative speech.

In a subsequent affidavit, Jones disavowed Matteson’s

actions, declaring that Matteson’s behavior was spontaneous

and not in accordance with any LACC or District “handbooks,

regulations[,] and codes.” The affidavit also confirmed that

“Matteson was disciplined for [his] conduct.” Lopez had no

subsequent interactions with Matteson, and the record contains no other complaints or other allegations of enforcement

actions taken against Lopez due to his speech. Nor did the

District or LACC take any enforcement action against Lopez

under the sexual harassment policy.

C

Lopez ultimately filed suit against Matteson, Jones and

other District and college officials.3 Lopez brought four

causes of action against the Defendants under 42 U.S.C.

§ 1983. The first three causes of action alleged that Matteson’s conduct violated Lopez’s First Amendment and equal

protection rights. In his fourth cause of action, the only one

relevant here, Lopez claimed that the District’s sexual harass3

In addition to Matteson and Jones, Lopez sued Moore, the president of

LACC, Cristy Passman, the LACC Compliance Officer, Gene Little,

Director of the District’s Office of Diversity Programs, and the District’s

Board of Trustees (Kelly G. Candaele, Mona Field, Georgia L. Mercer,

Nancy Pearlman, Angela J. Reddock, Miguel Santiago, and Sylvia ScottHayes.) Except for Matteson, who is not a named defendant in this appeal,

we refer to the defendants by name or collectively as Defendants. 

14362 LOPEZ v. CANDAELE
ment policy violated the First Amendment because it was

unconstitutionally overbroad and vague.4

Lopez moved for a preliminary injunction to enjoin the

Defendants from enforcing the sexual harassment policy. In

entertaining this motion, the district court first concluded that

Lopez had standing to bring a facial challenge to the policy

because it applied to Lopez by virtue of his enrollment at

LACC, the policy likely reached the speech in which Lopez

wanted to engage, and Lopez has censored himself for fear of

discipline under the policy.5 The district court then concluded

that the policy was unconstitutionally overbroad and could not

be narrowed, and granted Lopez’s motion to enjoin the District from enforcing the policy. While this appeal of the

court’s preliminary injunction was pending, the district court

granted the Defendants’ previously filed motion to dismiss the

remaining causes of action, with limited leave for Lopez to

amend.

II

We review de novo the district court’s determination that

Lopez has standing. Am.-Arab Anti-Discrimination Comm. v.

Thornburgh, 970 F.2d 501, 506 (9th Cir. 1992). Lopez bears

the burden of establishing standing because he is the party

invoking federal jurisdiction. LSO, 205 F.3d at 1152. We

review the district court’s grant of a preliminary injunction for

abuse of discretion. Johnson v. Couturier, 572 F.3d 1067,

1078 (9th Cir. 2009). “This review is ‘limited and deferential’

and it does not extend to the underlying merits of the case.”

Id. (quoting Am. Trucking Ass’ns v. City of Los Angeles, 559

F.3d 1046, 1052 (9th Cir. 2009)).

4Matteson failed to respond to Lopez’s complaint, and as such the district court clerk entered default; however, the district court delayed granting a default judgment against Matteson until after this appeal is resolved.

5The district court therefore did not reach Lopez’s as-applied challenge.

LOPEZ v. CANDAELE 14363
A

[1] In order to invoke the jurisdiction of the federal courts,

a plaintiff must establish “the irreducible constitutional minimum of standing,” consisting of three elements: injury in fact,

causation, and a likelihood that a favorable decision will

redress the plaintiff’s alleged injury. Lujan, 504 U.S. at

560-61; see Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d

1088, 1093 (9th Cir. 2003). The injury in fact must constitute

“an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal

citations and quotations omitted). The plaintiff must prove

injury in fact “in the same way as any other matter on which

the plaintiff bears the burden of proof, i.e., with the manner

and degree of evidence required at the successive stages of the

litigation.” Id. at 561. Therefore, at the preliminary injunction

stage, a plaintiff must make a “clear showing” of his injury in

fact. Winter v. Natural Resources Def. Council, Inc., 129 S.

Ct. 365, 376 (2008).

[2] Because “[c]onstitutional challenges based on the First

Amendment present unique standing considerations,” plaintiffs may establish an injury in fact without first suffering a

direct injury from the challenged restriction. Bayless, 320

F.3d at 1006. “In an effort to avoid the chilling effect of

sweeping restrictions, the Supreme Court has endorsed what

might be called a ‘hold your tongue and challenge now’

approach rather than requiring litigants to speak first and take

their chances with the consequences.” Id.; Getman, 328 F.3d

at 1094. In such pre-enforcement cases, the plaintiff may meet

constitutional standing requirements by “demonstrat[ing] a

realistic danger of sustaining a direct injury as a result of the

statute’s operation or enforcement.” Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979); see LSO, 205

F.3d at 1154. To show such a “realistic danger,” a plaintiff

must “allege[ ] an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed

14364 LOPEZ v. CANDAELE
by a statute, and . . . a credible threat of prosecution thereunder.” Babbitt, 442 U.S. at 298; see Bayless, 320 F.3d at 1006;

LSO, 205 F.3d at 1154-55. 

[3] Despite this “relaxed standing analysis” for preenforcement challenges, Canatella v. California, 304 F.3d

843, 853 n.11 (9th Cir. 2002), plaintiffs must still show an

actual or imminent injury to a legally protected interest. See

Lujan, 504 U.S. at 560. Even when plaintiffs bring an overbreadth challenge to a speech restriction, i.e., when plaintiffs

challenge the constitutionality of a restriction on the ground

that it may unconstitutionally chill the First Amendment

rights of parties not before the court, they must still satisfy

“the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court’s jurisdiction.” Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 999

(9th Cir. 2004) (quoting 4805 Convoy, Inc. v. City of San

Diego, 183 F.3d 1108, 1112 (9th Cir. 1999)); see also Sec’y

of State v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984).

The touchstone for determining injury in fact is whether the

plaintiff has suffered an injury or threat of injury that is credible, not “imaginary or speculative.” Babbitt, 442 U.S. at 298

(quoting Younger v. Harris, 401 U.S. 37, 42 (1971)). 

We look at a number of factors to determine whether plaintiffs who bring suit prior to violating a statute, so-called “preenforcement plaintiffs,” have failed to show that they face a

credible threat of adverse state action sufficient to establish

standing. As discussed in more detail below, in this context

we have conducted three related inquiries. First, we have considered whether pre-enforcement plaintiffs have failed to

show a reasonable likelihood that the government will enforce

the challenged law against them. Second, we have considered

whether the plaintiffs have failed to establish, with some

degree of concrete detail, that they intend to violate the challenged law. We have also considered a third factor, whether

the challenged law is inapplicable to the plaintiffs, either by

its terms or as interpreted by the government. Such inapplicaLOPEZ v. CANDAELE 14365
bility weighs against both the plaintiffs’ claims that they

intend to violate the law, and also their claims that the government intends to enforce the law against them.

B

Beginning with the first factor, we have considered a government’s preliminary efforts to enforce a speech restriction

or its past enforcement of a restriction to be strong evidence

(although not dispositive, LSO, 205 F.3d at 1155) that preenforcement plaintiffs face a credible threat of adverse state

action. For example, a threat of government prosecution is

credible if the government has indicted or arrested the plaintiffs, Younger, 401 U.S. at 41-42, if “prosecuting authorities

have communicated a specific warning or threat to initiate

proceedings” under the challenged speech restriction, or if

there is a “history of past prosecution or enforcement under

the challenged statute.” Thomas v. Anchorage Equal Rights

Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc). See,

e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (plaintiff

established injury in fact where the government twice warned

him to stop distributing handbills and threatened him with

prosecution under a Georgia statute if he continued to distribute the handbills); Culinary Workers Union v. Del Papa, 200

F.3d 614, 616, 618 (9th Cir. 1999) (per curiam) (plaintiff had

established injury in fact under a Nevada statute when the

attorney general wrote a “precise and exact” letter to the

union which quoted the statute in full and threatened to refer

the prosecution to “local criminal authorities”). 

The threatened state action need not necessarily be a prosecution. See, e.g., Meese v. Keene, 481 U.S. 465, 472-73

(1987) (holding that the plaintiff established standing by proving harms flowing from the government’s designation of three

films as “political propaganda”); Canatella, 304 F.3d at

852-53 (holding that the plaintiff had standing to challenge

state bar statutes and professional rules where he had previously been subject to state bar disciplinary proceedings and

14366 LOPEZ v. CANDAELE
could be subject to them in the future). Moreover, the plaintiffs themselves need not be the direct target of government

enforcement. A history of past enforcement against parties

similarly situated to the plaintiffs cuts in favor of a conclusion

that a threat is specific and credible. See Adult Video Ass’n v.

Barr, 960 F.2d 781, 785 (9th Cir. 1992), vacated sub nom.

Reno v. Adult Video Ass’n, 509 U.S. 917 (1993), reinstated in

relevant part, 41 F.3d 503 (9th Cir. 1994). 

[4] But “general threat[s] by officials to enforce those laws

which they are charged to administer” do not create the necessary injury in fact. United Pub. Workers of Am. v. Mitchell,

330 U.S. 75, 88 (1947); see Rincon Band of Mission Indians

v. San Diego Cnty., 495 F.2d 1, 4 (9th Cir. 1974) (concluding

that the sheriff’s statement that “all of the laws of San Diego,

State, Federal and County, will be enforced within our jurisdiction” was insufficient to create a justiciable case (citing,

among other cases, Poe v. Ullman, 367 U.S. 497, 501

(1961))). Thus, where multiple plaintiffs challenged a California law that criminalized teaching communism, the Supreme

Court concluded that three of the plaintiffs, who had not

alleged that “they have ever been threatened with prosecution,

that a prosecution is likely, or even that a prosecution is

remotely possible,” but merely that they felt “inhibited” in

advocating political ideas or in teaching about communism,

did not have standing. Younger, 401 U.S. at 42. Mere

“[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a

threat of specific future harm.” Laird v. Tatum, 408 U.S. 1,

13-14 (1972). 

Turning to the second factor, we have concluded that preenforcement plaintiffs who failed to allege a concrete intent

to violate the challenged law could not establish a credible

threat of enforcement. Because “the Constitution requires

something more than a hypothetical intent to violate the law,”

plaintiffs must “articulate[ ] a ‘concrete plan’ to violate the

law in question” by giving details about their future speech

LOPEZ v. CANDAELE 14367
such as “when, to whom, where, or under what circumstances.” Thomas, 220 F.3d at 1139. The plaintiffs’ allegations must be specific enough so that a court need not

“speculate as to the kinds of political activity the [plaintiffs]

desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication.”

Mitchell, 330 U.S. at 90. For example, a plaintiff challenging

the licensing provisions of a state regulatory regime failed the

injury in fact requirement because the plaintiff “ha[d] never

indicated that it intends to pursue another license,” and therefore could not “assert that it will ever again be subject to the

licensing provisions.” 4805 Convoy, 183 F.3d at 1112-13; see

also, e.g., Thornburgh, 970 F.2d at 510 (organization does not

have standing when the only evidence that it would be subject

to a law penalizing membership in an alleged terrorist group

was that its members received two publications which

espoused the terrorist group’s views). By contrast, plaintiffs

may carry their burden of establishing injury in fact when

they provide adequate details about their intended speech.

See, e.g., ACLU v. Heller, 378 F.3d 979, 984 (9th Cir. 2004)

(holding that a group had standing when an individual member alleged he desired to produce and distribute flyers regarding a specific ballot initiative); Getman, 328 F.3d at 1093

(holding that a group had standing when the group showed,

among other things, that it had planned to spend over $1000

to defeat a specific California proposition in the November

2000 election). Without these kinds of details, a court is left

with mere “ ‘some day’ intentions,” which “do not support a

finding of the ‘actual or imminent’ injury that our cases

require.” Thomas, 220 F.3d at 1140 (quoting San Diego Cnty.

Gun Rights Comm. v. Reno, 98 F.3d 1121, 1127 (9th Cir.

1996)). 

[5] Finally, we have indicated that plaintiffs’ claims of

future harm lack credibility when the challenged speech

restriction by its terms is not applicable to the plaintiffs, or the

enforcing authority has disavowed the applicability of the

challenged law to the plaintiffs. In the First Amendment con14368 LOPEZ v. CANDAELE
text, “a fear of prosecution will only inure if the plaintiff’s

intended speech arguably falls within the statute’s reach.”

Getman, 328 F.3d at 1095 (citing Virginia v. Am. Booksellers

Ass’n, 484 U.S. 383, 392 (1988)). Thus, in Leonard v. Clark,

we held that individual firemen did not have standing to challenge a portion of their union’s collective bargaining agreement because the provision at issue “by its plain language

applie[d] only to the Union and not to its individual members.” 12 F.3d 885, 888-89 (9th Cir. 1994); see also Getman,

328 F.3d at 1095 (indicating that a plaintiff has not established an injury in fact where the statute “clearly fails to cover

[the plaintiff’s] conduct” (quoting Majors v. Abell, 317 F.3d

719, 721 (7th Cir. 2003))). 

Likewise, we have held that plaintiffs did not demonstrate

the necessary injury in fact where the enforcing authority

expressly interpreted the challenged law as not applying to the

plaintiffs’ activities. Thus, a group of school teachers did not

have standing to challenge an Oregon textbook selection statute when both the Oregon Attorney General and the school

district’s lawyer “disavowed any interpretation of [the statute]

that would make it applicable in any way to teachers.” Johnson v. Stuart, 702 F.2d 193, 195 (9th Cir. 1983); cf. LSO, 205

F.3d at 1155 (collecting cases where the government failed to

affirmatively disavow an intent to enforce a challenged statute). Of course, the government’s disavowal must be more

than a mere litigation position. See Thornburgh, 970 F.2d at

508 (holding that aliens had standing to challenge speech

restriction statutes, even though the government dropped

charges based on those statutes four days before the district

court hearing, because, among other things, the government

could easily reinstate those charges and was bringing similar

charges against other aliens).

III

We apply these principles to the facts of this case to determine whether Lopez has carried his burden of making a clear

LOPEZ v. CANDAELE 14369
showing of injury in fact. See Winter, 129 S. Ct. at 376;

Lujan, 504 U.S. at 560. Lopez claims he suffered such an

injury because he faced a specific, credible threat of adverse

state action under the District’s sexual harassment policy.

A

Lopez identifies three actions on the part of LACC employees that, he claims, constitute a credible threat. According to

Lopez, Matteson threatened to enforce the sexual harassment

policy against him first on November 24, when Matteson

interrupted Lopez’s informative speech and told the class that

they could leave if they were “offended,” and second on

December 2, when Matteson wrote on Lopez’s assignment

that Lopez had agreed to the “Student Code of Conduct” as

a student at LACC. Third, Lopez claims that Jones’s letter

constituted a threat to enforce the policy because it informed

Lopez that his speech had offended other students. We consider each incident in turn.

[6] In the November 24 incident, Matteson aggressively

abused Lopez for his statements regarding marriage, prevented Lopez from speaking, asked whether other students

were offended, and warned Lopez against proselytizing in

school. However, Matteson did not threaten to enforce the

sexual harassment policy against Lopez or even suggest that

Lopez was violating the policy. Therefore the November 24

incident, while raising serious concerns, does not help Lopez

carry his burden of clearly showing he suffered an injury in

fact from the sexual harassment policy. Lopez argues that

because Matteson told students they could leave if they were

“offended,” and Section 15003(A) defines “sexual harassment” as including conduct that has the purpose or effect of

creating an “offensive work or educational environment,”

Matteson was implicitly invoking the District’s sexual harassment policy. We conclude that any link between Matteson’s

use of the word “offended” and the sexual harassment policy’s use of the word “offensive” in this context is too attenu14370 LOPEZ v. CANDAELE
ated and remote to rise to the level of “a threat of specific

future harm” required to show an injury in fact arising from

the policy. Cf. Laird, 408 U.S. at 14 (requiring such a threat

in order to avoid advisory opinions); Del Papa, 200 F.3d at

616, 618 (holding that a “precise and exact” threat of prosecution was more than adequate to establish injury in fact). 

[7] The December 2 incident involved a different assignment Lopez had written for Speech 101. It is plausible to read

Matteson’s comment on the paper, namely that Lopez had

agreed to abide by the Student Code of Conduct,6 as an

implicit threat that Lopez should take care not to raise certain

topics (such as those relating to marriage as being between a

man and a woman, which had elicited Matteson’s ire previously), and that such topics could violate the school’s policies. Again, however, such an implied threat does not meet

the standard necessary to show injury in fact. This assignment

did not mention Lopez’s religious beliefs or discuss the nature

of marriage, and on its face, Matteson’s comment does not

indicate that Lopez’s speech on marriage or religion would

constitute sexual harassment or otherwise violate the sexual

harassment policy. Nor does Matteson’s comment constitute

a threat to initiate proceedings if Lopez made such remarks on

marriage or religion. Rather, in the context in which this

remark appeared, Matteson’s comment is, at most, a “general

threat” to enforce the Student Code of Conduct, rather than a

“direct threat of punishment.” Mitchell, 330 U.S. at 88. Such

general threats are insufficient to establish an injury in fact.

[8] Finally, Lopez argues that Jones’s December 4 letter is

a threat to enforce the sexual harassment policy by taking

action against him. Lopez points to the letter’s statement that

6Although there is no document entitled “Student Code of Conduct” in

the record, we assume for purposes of this analysis that the comment

refers to the “Rules for Student Conduct” section of the LACC student

handbook, which also contains Section 15001 of the sexual harassment

policy. 

LOPEZ v. CANDAELE 14371
two students were offended by Lopez’s speech, and one student wrote that the speech was “hateful propaganda.” Read in

context, however, Jones’s letter does not constitute a threat of

enforcement action. The letter makes clear that Matteson, not

Lopez, is the target of the LACC’s disciplinary actions, and

states that LACC will not take action against any students,

impliedly including Lopez, for exercise of their First Amendment rights. Moreover, while Jones makes the rejoinder to

Lopez’s attorney that two other students were offended by

Lopez’s speech, the students she quotes do not complain

about statements of a sexual nature or suggest they regarded

Lopez’s speech as constituting sexual harassment; rather, they

complained that Lopez’s informative speech was “hateful” or

“preached hate.” We therefore agree with the district court’s

later conclusion that “the content of [Jones’s] letter cannot

reasonably be characterized as threatening future punishment

on the basis of such [student] complaints.” 

[9] Even when we view Jones’s letter and the two Speech

101 incidents collectively, they do not constitute a credible

threat to discipline Lopez under the sexual harassment policy.

No LACC official or student invoked or even mentioned the

policy, nor did anyone suggest that Lopez’s November 24

speech constituted sexual harassment. Indeed, even the

demand letter Lopez’s attorney sent to LACC did not reference that policy. While Matteson and the students quoted in

Jones’s letter apparently were offended or angered by Lopez’s

November 24 speech in class, there is no indication that they,

or anyone else, deemed it to be sexual harassment.

B

Other factors likewise indicate that Lopez’s claims of

threatened enforcement are not sufficiently concrete to meet

even the minimum injury in fact threshold. As noted above,

we consider both Lopez’s stated intent to violate the policy

and the likelihood that the District or LACC will enforce the

policy against Lopez. 

14372 LOPEZ v. CANDAELE
[10] Here Lopez has not adequately proven his intent to

violate the policy because Lopez has not shown that the sexual harassment policy even arguably applies to his past or

intended future speech. See Getman, 328 F.3d at 1095 (plaintiff must show that his “intended speech arguably falls within

the statute’s reach”). As we previously explained, the District’s policy (per Sections 15001 and 15003(A)) precludes

students from engaging in sexual harassment, which, in its

most wide-reaching formulation, includes “verbal, visual, or

physical conduct of a sexual nature” that has the purpose or

effect of creating a “hostile or offensive work or educational

environment.” Lopez’s November 24 speech included quotes

from two Bible passages relating to salvation and the love of

God, and a dictionary definition of marriage as “between a

man and a woman.” Lopez has given us few details about his

intended future speech: he alleges only that in the future, he

desires to discuss “his Christian views on politics, morality,

social issues, religion, and the like,” and that he wishes to

“share[ ] his beliefs about Christianity with others,” which

means “discuss[ing] his faith and how it applies to guide his

views on political, social, and cultural issues and events.”

Comparing Lopez’s past and proposed future speech to the

plain language of the District’s sexual harassment policy, we

do not see, nor does Lopez explain, how the policy applies to

him, given that his statements and proposed topics do not, on

their face, constitute “verbal . . . conduct of a sexual nature.”

While the District Office of Diversity Programs and LACC

Compliance Office websites suggest broader definitions of

sexual harassment than contained in Section 15003(A),

Lopez’s speech on topics of religious concern does not, on its

face, meet even those broader definitions, which focus on

conduct or expression specifically related to sex (e.g., classifying as sexual harassment the “[d]isplay of sexually suggestive objects, pictures, cartoons, posters, [or] screen savers,” or

“[d]isparaging sexual remarks about [one’s] gender”). Lopez

does not argue otherwise. In short, Lopez has not shown how

his past or intended speech would violate the challenged policy.

LOPEZ v. CANDAELE 14373
[11] Even if we assume (though Lopez does not argue) that

Lopez intends to express religious opposition to homosexuality or same sex marriages, and even if we also assume (which

again, Lopez does not argue) that college officials, teachers or

students could adopt a strained construction of the sexual

harassment policy that would make it applicable to religious

speech opposing homosexuality or gay marriage, Lopez does

not claim that anyone has done so or may do so in the future.

In the absence of any argument by Lopez urging this point,

we decline to give the policy such an interpretation on our

own accord. Moreover, nothing in the record suggests that the

District or LACC has adopted an expansive reading of the

policy. Rather, Jones’s uncontroverted statement that the District or LACC have never charged any teacher, student, or

employee with sexual harassment under the policy points in

the opposite direction. In the absence of any showing that the

sexual harassment policy even arguably applies or may apply

to Lopez’s past or intended future speech, Lopez cannot show

a concrete intent to violate the policy, and therefore cannot

show a credible threat that the Defendants will enforce the

policy against him.

For this reason, Lopez’s reliance on Santa Monica Food

Not Bombs v. City of Santa Monica (Food Not Bombs), 450

F.3d 1022 (9th Cir. 2006) and Bayless, 320 F.3d 1002, is misplaced. In those cases, we held that an organization can establish injury in fact sufficient for pre-enforcement standing

merely by showing that it altered its expressive activities to

comply with the statutes at issue and alleging its apprehension

that the relevant statutes would be enforced against it. See

Food Not Bombs, 450 F.3d at 1034; Bayless, 320 F.3d at

1006. Lopez argues that he is similarly situated, because he

has self-censored his speech on religious topics in order to

avoid violating the sexual harassment policy. However, in

Bayless and Food Not Bombs, the organizations proved they

had a specific, concrete intent to engage in activities that were

clearly barred by the challenged law. See Food Not Bombs,

450 F.3d at 1034 (holding that a plaintiff that organized

14374 LOPEZ v. CANDAELE
marches and demonstrations had standing to challenge a Santa

Monica ordinance that required it to obtain a permit before

engaging in marches or demonstrations); Bayless, 320 F.3d at

1006 (holding that a right-to-life political action committee,

whose primary purpose was to present political advertising,

had standing to challenge a state election statute that placed

limitations on political advertising within ten days before an

election). By contrast, Lopez fails to allege, let alone offer

concrete details such as those supplied in Bayless or Food Not

Bombs, regarding his intent to engage in conduct expressly

forbidden by the sexual harassment policy; he “cannot say

when, to whom, where, or under what circumstances” he will

actually give a speech that would violate the sexual harassment policy. Thomas, 220 F.3d at 1139. 

We reach the same conclusion when we inquire whether

the District or LACC will likely enforce the policy against

Lopez. As noted above, the inapplicability of the plain language of the sexual harassment policy to Lopez’s speech, and

the absence of any official interpretation of the policy as

applying to Lopez’s speech, cut against the existence of a

credible threat of enforcement. Moreover, Jones’s letter indicated that LACC did not intend to take any action against

Lopez. As noted above, the letter stated that Jones intended to

address Lopez’s complaints, discipline Matteson, and ensure

that Lopez received a fair grade in the class. Further, the letter

stated that although several students were offended by

Lopez’s speech, “First amendment rights will not be violated,” and no action will be taken against any of the students,

implicitly including Lopez. As Jones is the administration

official with responsibility for overseeing college policies and

procedures generally, her statement that no action will be

taken against students for expressing their opinions is entitled

to significant weight, and vitiates Lopez’s claim that he faces

a credible threat of enforcement. Cf. LSO, 205 F.3d at 1155

(concluding that “failure to disavow ‘is an attitudinal factor

the net effect of which would seem to impart some substance

to the fears of plaintiffs’ ” (brackets omitted) (quoting ThornLOPEZ v. CANDAELE 14375
burgh, 970 F.2d at 508)). Nor is this a situation like Thornburgh, in which the government dropped charges “not

because [the charges] were considered inapplicable, but for

tactical reasons,” 970 F.2d at 508, because here LACC had

not taken any steps to enforce the sexual harassment policy

against Lopez, either before or after Lopez’s threat to sue the

school.

Although Lopez alleges that his speech was chilled by the

existence of the sexual harassment policy, self-censorship

alone is insufficient to show injury. See, e.g., Laird, 408 U.S.

at 13-14 (“Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm

or a threat of specific future harm . . . .”); Getman, 328 F.3d

at 1095 (“We do not mean to suggest that any plaintiff may

challenge the constitutionality of a statute on First Amendment grounds by nakedly asserting that his or her speech was

chilled by the statute. The self-censorship door to standing

does not open for every plaintiff.”). Nor does Lopez have

standing merely because, as the district court concluded, he

may have “more than a general interest shared with the student body at large” in challenging the policy because he is a

devout Christian. Leaving aside the question whether the sexual harassment policy has special applicability to Christians,

the district court’s conclusion is misguided: our inquiry into

injury-in-fact does not turn on the strength of plaintiffs’ concerns about a law, but rather on the credibility of the threat

that the challenged law will be enforced against them. See

Babbitt, 442 U.S. at 298-99.

[12] In sum, Lopez has not proposed an interpretation of

the policy that would arguably apply to his intended speech

and has not given any details about what he intends to say.

Therefore, he has failed to prove his intent to violate the policy. Moreover, Lopez has not shown that the District or

LACC has enforced the sexual harassment policy against him,

interprets the sexual harassment policy as applying to his

speech, or is likely to enforce the policy against him in the

14376 LOPEZ v. CANDAELE
future. Under these circumstances, we must conclude that

Lopez fails to meet the standard required of a preenforcement plaintiff to prove injury in fact, because he has

not met the low threshold of clearly showing that he faces a

specific, credible threat of adverse government action based

on a violation of the sexual harassment policy.

C

[13] Lopez also argues that the overbreadth doctrine

allows him to assert the rights of his fellow students who are

not before the court. However, Lopez properly recognized

that he may only assert the rights of others “[s]o long as [he]

satisfies the injury in fact requirement.” Plaintiffs who have

suffered no injury themselves cannot invoke federal jurisdiction by pointing to an injury incurred only by third parties.

See Munson, 467 U.S. at 958 (noting that Munson could not

assert the rights of third parties unless Munson itself had suffered an injury in fact). Because Lopez fails to establish the

necessary injury in fact, he cannot raise the claims of third

parties as part of an overbreadth challenge.

IV

Formal and informal enforcement of policies that regulate

speech on college campuses raises issues of profound concern. As we have noted in Rodriguez v. Maricopa County

Community College District, 

If colleges are forced to act as the hall monitors of

academia, subject to constant threats of litigation

both from [those] who wish to speak and listeners

who wish to have them silenced, “many school districts would undoubtedly prefer to ‘steer far’ from

any controversial [speaker] and instead substitute

‘safe’ ones in order to reduce the possibility of civil

liability and the expensive and time-consuming burdens of a lawsuit.”

LOPEZ v. CANDAELE 14377
605 F.3d 703, 709 (9th Cir. 2010) (brackets omitted) (quoting

Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022,

1030 (9th Cir. 1998)). Such policies, well intentioned though

they may be, carry significant risks of suppressing speech.

“Because some people take umbrage at a great many ideas,

very soon no one would be able to say much of anything at

all,” id. at 711, an outcome that would be anathema for universities, our nation’s “marketplace of ideas.” Healy v. James,

408 U.S. 169, 180 (1972). Rather, the First Amendment protects a speaker’s “freedom to express himself on . . . issues in

vigorous, argumentative, unmeasured, and even distinctly

unpleasant terms.” Rodriguez, 605 F.3d at 708-09 (quoting

Adamian v. Jacobsen, 523 F.2d 929, 934 (9th Cir. 1975)); see

also Cohen v. California, 403 U.S. 15, 24-25 (1971) (“To

many, the immediate consequence of this freedom [of speech]

may often appear to be only verbal tumult, discord, and even

offensive utterance. These are, however, within established

limits, in truth necessary side effects of the broader enduring

values which the process of open debate permits us to

achieve.”).

[14] Despite the serious concerns raised by policies that

regulate speech on college campuses, we remain bound by the

strictures of our jurisdiction, and must decline to hear cases

where there is no genuine case or controversy. Under the

relaxed standard applicable to First Amendment cases,

Lopez’s arguments come to the very edge of showing injury

in fact. But Lopez has not made it over the threshold, and

“[w]e will not manufacture arguments for [a party].” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Taking the

record and Lopez’s arguments as we find them, we conclude

that Lopez failed to make a clear showing of a specific and

concrete threat that the sexual harassment policy would be

enforced against him. While Lopez alleged a bruising encounter with Matteson, Lopez’s suit against Matteson is not before

us today, and neither Matteson nor any other Defendant ever

invoked the District’s sexual harassment policy against

Lopez. Lopez consequently does not have standing to chal14378 LOPEZ v. CANDAELE
lenge the District’s sexual harassment policy. Therefore, the

order granting the preliminary injunction is REVERSED, the

preliminary injunction is VACATED, and we REMAND for

further proceedings consistent with this opinion.

LOPEZ v. CANDAELE 14379