1 Revised September 16, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-30983

Citizen Action Fund d/b/a Louisiana Citizen Action,

Plaintiff-Appellant,

VERSUS

City of Morgan City,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

September 3, 1998

Before DeMOSS, PARKER, and DENNIS, Circuit Judges

PER CURIAM:

This is a 42 U.S.C. § 1983 action for damages and declaratory

relief by Citizen Action Fund (Citizen Action), a public interest

organization, against the City of Morgan City. Citizen Action

alleged that the city violated its rights under the free speech

clause of the First Amendment by threatening to enforce an

ordinance prohibiting uninvited commercial solicitations at private2

residences between 5:30 p.m. and 8:30 a.m. if Citizen Action were

to canvass residences during those hours for non-commercial public

environmental and consumer causes. The district court granted

Morgan City’s motion f or summary judgment upholding the

constitutionality of the ordinance as applied to Citizen Action’s

proposed canvassing activities on the grounds that Citizen Action

could not challenge the city’s unconstitutional application of the

ordinance because Citizen Action also contended that, as correctly

interpreted, the ordinance did not apply to its proposed exercise

of free speech at all. We reverse and remand the case to the

district court for further proceedings.

I.

Citizen Action Fund is an Ohio-based corporation doing

business in Lou isiana under the name Louisiana Citizen Action.

Citizen Action is a non-partisan organization which engages in

lobbying activities and the education of the public on various

environme ntal and consumer issues. Citizen Action uses a grassroots approach by canvassing individuals door to door. It uses

this approach for the purpose of “disseminating i nformation on

matters of public importance to citizen, building political support

for various legislative proposals and policies, obtaining

signatures and memberships, and raising funds to further its

informational and public-interest purposes.” (Petitioner’s Brief

at 5).1 These provisions of the ordinance provided:

(a) Solicitation, the practice of going in and upon private

re s idences in the city by solicitors, peddlers, hawkers,

itinerant merchants or transient vendors of merchandise not

having b een requested or invited to do so by the owner or

owners, occupant or occupants of said private residence for

the purpose of soliciting orders for the sale of goods, wares

and merchandise and/or disposing of and/or peddling or hawking

the same without first having applied for and having received

a city permit from the tax collector to do so, is declared to

be a nuisance and punishable as a misdemeanor.

* * *

(c) All permits issued as provided for by this section shall

be valid between the hours of 8:30 a.m. and 11:30 a.m. and

1:30 p.m. and 5:30 p. m. No solicitor, peddler, hawker,

itinerant merchant or tra nsient vendor shall go in or upon

private residences other than at the hours stated herein

unless an appointment has been made by the occupant of a

private re sidence for a time other than that as provided

3 In early 1994, Citizen Action began investigating the

p ossibility of canvassing residents of Morgan City, Louisiana.

Kendall Jackson, the staff director for Louisiana Citizen Action,

communicated with several officials in Morgan City about the

existence and content of a city ordinance which regulated

“solicitation” for “the purpose of soliciting orders for the sale

of goods, wares and merchandise.” (Ordinance No. 90-8, § 9-6).

Mr. Jackson communicated with Morgan City Mayor Tim Matte, City

Attorney Dale Hayes, and Police Chief Danny Dossett about whether

Citizen Action’s canvassing operation would be “solicitation” under

the ordinance and thus subject to the law’s prohibition on such

activities after 5:30 p.m. Citizen Action wanted to canvass door

to door after 5:30 p.m. because most individuals are not home from

their jobs before that time. 1herein.

Ordinance 90-8,§ 9-6.

2 The punishment established by the ordinance is “a fine not

exceeding five hundred dollars ($500.00) or imprison[ment] not more

than six (6) months or by both such fine and imprisonment within

the discretion of the court.” Ordinance No. 90-8, § 1.

3 The district court granted a motion by Citizen Action dismissing

with prejudice all claims against Mayor Matte.

4 Citizen Action contended that its activities did not

constitute solicitation under the city ordinance and thus that it

should not be prohibited from canvassing Morg an City residents

after 5:30 p.m. Nonetheless, Kendall Jackson was informed by each

of the Morgan City officials that they interpreted the ordinance as

applicable to the proposed canvassing operation of Citizen Action.

Mr. Jackson was informed by Mayor Matte that the ordinance would be

enforced against Citizen Action unless it could obtain an exemption

from the City Council of Morgan City. 2

On March 16, 1995, Citizen Action filed suit against Mayor

Matte and Morgan City, al leging that the ordinance was

unconstitutional, both as written a nd as applied to Citizen

Action. 3 Although Citizen Action never conducted any door to door

canvassing in Morgan City, the organization contends that the

ordinance was unconstitutionally applied to it because of the

threat of enforcement. The defendants moved for partial summary

judg ment on the constitutionality of the ordinance on its face.

The plaintiff moved for partial summary judgment on both the facial4 The new section of the ordinance stated, in part:

(g) Door-to-door canvassing in or upon private residences, by

persons who have not been invited to do so by the owner or

occupant of the residence for the purposes other than the

solicitation of orders for the sale o f goods, wares, and

merchandise and/or disposing of and/or peddling or hawking the

same, shall not be subject to the requirements of sub-section

(e) of this Section. Persons engaged in door-to-door

canvassing as described in this sub-section shall be subject

to the fee and permit requirements, limitations, and penalties

of sub-sections (b), (c), (d), and (f) of this Section.

Ordinance 90-8, § 9-6(g). Section (e), referred to above, required

applicant to furnish a performance bond.

5 and “as applied” constitutionality of the law.

In a telephone st atus conference with the respective

attorneys, the district judge suggested that Citizen Actio n ’s

activities might not be covered by the ordinance as written. The

judge then told counsel that the city could amend the ordinance in

order to include canvassing operations such as Citizen Action’s.

Shortly thereafter, upon a representation by the city’s attorney

that such a change would be forthcoming, the district judge

dismissed the summary judgment motions as moot. In November 1996,

Morgan City amended its ordinance to add a section making it

applicable to uninvited non-commercial door to door canvassing. 4

After the plaintiff filed a supplemental complaint, the parties

subsequently filed new summary judgment motions putting at issue

the constitutionality of both the original and amended ordinances

and the unconstitutional application of the original ordinance.

The district court granted the defendants’ motion for summary6

judgment and denied the summary judgment motion of the plaintiff.

In a memorandum ruling, the district court ruled that the original

ordinance was constitutional both as applied and as written. In

addition, the district court also ruled that the amended ordinance

was constitutional as written.

In the present appeal, Citizen Acti on appeals only the

district court’s ruling that the original ordinance had not been

applied in violation of Citizen Action’s First Amendment rights.

II.

This Court’s standard of review for cases dismissed on a

motion for summary judgment is de novo

. Wallace v. Texas Tech

Univ., 80 F.3d 1042 (5th Cir. 1996).

On appeal, the defendant argues that Citizen Action does not

have standing to challenge the original Morgan City ordinance

because “Citizen Action can point to no federally protected right

of which it was deprived by Morgan City’s ‘threat’ to enforce” the

law. (Defendant’s Brief at 10). Apparently this standing issue

was not raised in the district court. Although new issues cannot

generally be raised on appeal, Boddie v. City of Columbus, 989 F.2d

745, 751 (5th Cir. 1993), “‘[s]tanding represents a jurisdictional

requirement which remains open to review at all stages of the

litigation.’” In re Taxable Municipal Bond Securities Litigation,7

51 F.3d 518, 521 (5th Cir. 1995) (quoting National Org. for Women,

Inc. v. Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798, 802, 127 L.

Ed. 2d 99 (1994)).

The standing challenge advanced by defendant can be disposed

of easily. Section 1983 confers no substantive rights but only

provides a cause of action to obtain “redress” for the violation of

federal rights. In other words, one must look somewhere besides 42

U.S.C. § 1983 in order to determine w hether a right protected by

federal law has been violated. Here, the law of the First

Amendment is clear that a statute can be challenged prior to any

enforcement action so long as there is a credible threat of

prosecution. Virginia v. American Booksellers Association, 484

U.S. 383, 392-93 (1988); Steffel v. Thompson, 415 U.S. 452, 459

(1974). S ee also Chamber of Commerce v. Federal Election

Commission, 69 F.3d 600, 603-04 (D.C. Cir. 1995) (“A party has

standing to challenge, pre-enforcement, even the constitutionality

of a statute if First Amendment rights are arguably chilled, so

long as there is a credible threat of prosecution.”). Allowing

pre-enforcement challenges to laws that touch upon First Amendment

freedoms is necessary to ensure that no chilling effect on speech

occurs because of a fear of prosecution. As this court has stated,

“To insist that a person must break the law in order to test its

constitutionality is to risk punishing him for conduct which he may

have honestly thought was constitutionally protected. Not only is8

this prima facie unfair, but it discourages people from engaging in

protected activity and enforcing constitutional rights.”

International Society for Krishna Consciousness v. Eaves, 601 F.2d

809, 821 (5th Cir. 1979).

In the present case, there is ample evidence in the record to

suggest that even though Citizen Action did not believe it was

covered by the original ordinance, Citizen Action had every reason

to believe that the Morgan City officials interpreted the ordinance

to encompass the plaintiff’s proposed canvassing activities and

that the officials would enforce the ordina nce against Citizen

Action and its members if they engaged in those activities. Given

the fact that Citizen Action’s door to door contact with residents

on environmental and consumer issues is speech protected by the

First Amendment, Citizen Action has standing to challenge the

constitutionality of the original ordinance prior t o any

enforcement action because of the credible threat of prosecution.

Before reaching the question of wh ether the plaintiff has a

cause of action under Section 1983, one must first address the

antecedent question of whether Citizen Action’s rig hts under the

First Amendment were violated. S ee County of Sacramento v. Lewis,

118 S. Ct. 1708, 1714 n.5 (1998) (“As in any action under § 1983,

the first step is to identify the exact contours of the underlying

right said to be violated.”). It is necessary to recall what is at

issue in this appeal. Citizen Action is only appealing the5 The district court ruled that the revised ordinance did not

place an unacceptable burden upon free speech and was therefore

constitutional under a time, place, and manner analysis.

Memorandum Ruling at 22-24.

As for the original version of the Morgan City ordinance, the

district court argues that it was constitutional on its face

because if the revised, more restrictive version of the ordinance

is constitutional, then the original version must be constitutional

as well. The court also relied upon B reard v. City of Alexandria

, 341 U.S. 622 (1951), a decision that upheld a total ban on door to

door solicitation. While B reard can be distinguished from the

present case because of the profit-making focus of the solicitation

at issue there, it is also likely that Breard would not be embraced

by the Supreme Court of today. S ee City of Watseka v. Illinois

Public Action Council, 479 U.S. 1048 (1 987) (affirming Seventh

Cir cuit decision invalidating a city ordinance that limited

solicitation to the hours of 9:00 a.m. to 5:00 p.m.).

9 district court’s grant of summary judgment on the constitutionality

of the original ordinance “as applied.” It is not appealing the

grant of summary ju dgment upholding the constitutionality of the

original ordinance “as written.” Nor is Citizen Action appealing

the district court’s grant of summary judgm ent upholding the

constitutionality of the newly amen ded ordinance “as written.” 5

Thus, the issue in the present case is whether Citizen Action’s

rights were violated by the application of the original ordinance.

The answer to this question depends upon a more intricate

formulation of the same question: Can the mere threat of enforcing

the city ordinance against Citizen Action be an unconstitutional

violation of its First Amendment rights, even where the ordinance

itself has been upheld as constitutional? That is, can threats to

violate constitutional rights be actionable under Section 1983?

The Fifth Circuit has concluded that mere threats are not per6 Under the Fourteenth Amendment, this circuit has recognized a

substantive due process right and a § 1983 remedy for emotional

harms even in the absence of physical injuries. Petta v. Rivera,

143 F.3d 895, 900-01 (5th Cir. 1998) (per curiam). See County of

Sacramento v. Lewis, 118 S. Ct. at 1714-16 (describing availability

of substantive due process when injuries are not covered by any

specific constitutional provision).

10 se violations of const itutional rights: “Threats alone are not

enough. A section 1983 claim only accrues when the threats or

threatening conduct result in a constitutional deprivation.” Lamar

v. Steele, 698 F.2d 1286, 1286 (5th Cir. 1983) (per curiam).

What threats constitute a constitutional deprivation differs

from issue to issue and from circuit to circuit. Under the Eighth

Amendment, there is an ongoing dispute as to whether threats by

prison officials agains t inmates are, by themselves, enough to

establish constitutional violations. Most of these cases are very

fact specific. Some circuits have held that real threats by prison

guards do confer standing under Section 1983, Burton v. Livingston,

791 F.2d 97, 100 (8th Cir. 1986), while others have ruled that “it

trivializes the eighth amendment to believe a threat constitutes a

constitutional wrong.” Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.

1987). The Fifth Circuit, aware that not all injuries are

physical, has yet to rule on “ whether, absent physical contact,

purely emotional injuries are cognizable in this Circuit as

violative of the Eighth Amendment.” Smith v. Aldingers, 999 F.2d

109, 110 (5th Cir. 1993) (per curiam). 6

Desp ite these vicissitudes in other areas of constitutional11

law, the rights protected by the First Amendment are different.

Threats of unconstitutionally enforcing laws against individuals

can lead to a chilling effect upon speech, silencing voices and

opinions which the First Amendment was meant to protect. Speaking

of the First Amendment, Justice Brennan’s words in NAACP v. Button

remain the bedrock of the law in this are a: “These freedoms are

delicate and vulnerable, as well as supremely precious in our

society. The threat of sanctions may deter their exercise almost

as potently as the actual application of sanctions.” NAACP v.

Bu tton, 371 U.S. 415, 433 (1963). S ee also Virginia v. American

Bookseller s Association, 484 U.S. 383, 393 (1988) (“the alleged

danger of this statute is, in large measure, one of selfcensorship; a harm that can be realized even without an actual

prosecution”). As this circuit has recognized, threats affect

individuals’ constitutional freedoms “by causing them to exercise

t heir first amendment rights less forcefully than they otherwise

would.” International Society for Krishna Consciousness, 601 F.2d

at 824. S ee also 754 Orange Ave., Inc. v. City of West Haven, 761

F.2d 105 (2d Cir. 1985) (holding that city’s threat to enforce its

zoning and licensing ordinances against adult bookstore amounted to

an impermissible prior restraint).

Applying these principles to the present case, we conclude

that Citizen Action’s constitutional rights were infringed by the

threaten ed enforcement of the Morgan City ordinance against it.12

Given the fact that the origi nal ordinance addressed only the

“soliciting [of] orders for the sale of goods, wares and

merchandise” and that Citizen Action’s public interest activities

in support of environmental and consumer causes were not reasonably

included within tha t definition, the threat by the city to

prosecute Citizen Action for conduct not made illegal by the

ordinance was an unlawful application of that law to intentionally

deter and prevent the exercise of free speech in violation of the

First Amendment.

The district court erroneously concluded that Citizen Action

had not challenged the Ordinance as applied because “by Citizen

Action’s own allegation the Ordinance did not apply to Citizen

Action.” Memorandum Ruling at 25. Whether Citizen Action believed

that its activities were included within the original ordinance’s

language is not determinative of whether its rights of free speech

were violated. It is the Morgan City officials’ interpretation of

the ordinance and threats to act on that interpretation that

matter. Each city official involved told the plaintiff’s

representative that Citizen Action’s proposed activities

constituted “solicitation” under the ordinance and that the

ordinance would be enforced against it. Thus, the city threatened

to enforce the ordinance in an unconstitutional manner giving rise

to a cognizable action based on an “as applied” constitutional

challenge. S ee Steffel v. Thompson, 415 U.S. at 475 (holding13

declaratory relief available “when no state prosecution is pending

and a federal pla intiff demonstrates a genuine threat of

enforcement

. . . whether an attack is made on the

constitutionality of the statute on its fa ce or as applied”).

Indeed, as Justice Scalia has observed, an “as applied” challenge

exists when “the plaintiff contends that application of the statute

in the particular context

. . . in which he proposes to act[] would

be unconstitutional.” Ada v. Guam Society of Obstetricians, 506

U.S. 1011, 1011 (1992) (Scalia, J., dissenting from a denial of

certiorari).

We therefore reve rse the district court’s grant of summary

judgment dismissing Citizen Action’s § 19 83 action based on the

city’s unconstitutional application of the ordinance in violation

of the plaintiff’s First Amendment rights.

The plaintiff seeks declaratory relief, compensatory damages,

and attorneys’ fees in this lawsuit. While the claims for

compensatory damages and attorn eys’ fees can go forward, we hold

that the claim for declaratory relief is moot. In order to grant

declaratory relief, there must be an actual, ongoing controversy.

See Gulf Publishing Co. v. Lee, 679 U.S. 45 (1982) (declaratory

judgment cl a im mooted after finding no actual, ongoing

controversy); Ellis v. Dyson, 421 U. S. 426, 434 (1975) (holding

that Article III and the Declaratory Judgment Act require that

dis pute “must be shown to be alive at each stage of the14

litigation”). As a leading commentator in this field observes, the

Supreme Court “requires that a litigant show that th e requested

declaratory or injunctive relief would make a practical difference

if granted.” 1 Sheldon H. Nahmod, Civil Rights and Liberties

Litigation § 5.05, at 374 (3d ed. 1991). Indeed, the Declaratory

Judgment Act requires that there be “a case of actual controversy”

between the parties. 28 U.S.C. § 2201. Here, since Morgan City

amended the city ordinance to apply t o non-commercial canvassing

activities in addition to commercial s olicitation, the original

ordinance has been superseded and, thus, there is no continuing

dispute as to its interpretation. As a result, the declaratory

relief claim must be dismissed as moot.

The decision of the district court is REVERSED and the case is

REMANDED to the district court for further proceedings consistent

with this opinion.