1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0125p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

R OBERT M C K AY , Plaintiff-Appellant ,

v

.

W ILLIAM L. F EDERSPIEL ; R ANDY F. P FAU , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ ┘ No. 15-1548

Appeal from the United St ates District Court for the Eastern District of Michigan at Bay City. No. 1:14-cv-10252—Thomas L. Ludington, District Judge. Argued: December 8, 2015 Decided and Filed: May 20, 2016 Before: STRANCH, DONALD, and LIPEZ, Circuit Judges. *

_________________ COUNSEL

ARGUED: Philip Lee Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellant. Karen M. Daley, CUMMINGS, M CCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellees. ON BRIEF: Philip Lee Ellison, OUTSI DE LEGAL CO UNSEL PLC, Hemlock, Michigan, for Appellant. Kare n M. Daley, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., Livonia, Mi chigan, for Appellees.

* The Honorable Kermit V. Lipez, Circuit Judge for the Un ited States Court of App eals for the First Circuit, sitting by designation. 

### >No. 15-1548 McKay v Federspiel, et al. Page 2

_________________ OPINION

_________________ JANE B. STRANCH, Circuit Judge. This case seeks to present significant issues concerning the ever-advancing march of technology and its role in courts and court facilities. The outcome of this case, however , is governed by the more particul ar issue of le gal standing. Here, the chief judges of Saginaw County, Michigan issued a joint administrative order limiting the use of electronic devices in courtrooms and court-related facilities in the Saginaw County Governmental Center. Robert McKay, a resident of neighboring Tuscola County who states that he wishes to record law enforcement officers’ and judges’ activities inside the Governmental Center, contends that the administrative order vi olates his federal constitutional rights. Upon consideration of two sets of cr oss-motions for summary judgment , the district court concluded that McKay lacks standing to chal lenge the order prior to its enfo rcement. For the reasons that follow, we AFFIRM

.
I. BACKGROUND
The Saginaw County Governmental Center h ouses the Saginaw Co unty Tenth Circuit Court, Probate Court, and Seventieth District C ourt, as well as various county legislative and executive offices, officials, and staff. In August 2013, a subcommittee of the Saginaw County Board of Commissioners held a public meeti ng to discuss a proposed ordinance that would prohibit possession or use of electronic devices w ithin the entire Governmental Center. McKay attended the meeting and spoke against the ordinance. The co mmissioners postponed making a decision, however, and the proposed ordinance ne ver came up for further discussion or for a

vote.
A few months later, on October 30th, the chief judges of the Tenth Circuit Court, Probate Court, and Seventieth District Court of Saginaw County issued a joint administrative order prohibiting unauthorized possession or use of certain electronic devices in “court related facilities” in the Governmental Center. Spec ifically, the order—entitled “Electronic Device Policy”—provides that:No. 15-1548 McKay v Federspiel, et al. Page 3

Except with a judge’s permission, possessi on and/or use of the following devices is prohibited in court related facilities:

 audio and/or video recording and/or broadc asting devices

 camera/photographic devices

 electronic communication devices (R. 35-2, PageID 477.) The order defines “[c]ourt related facili ties” as “the Saginaw County Circuit Court, District Court, and Probate Court (including th e entire Juvenile/Family Court facility) courtrooms, court administrative office s, Friend of the Court offices, probation offices, and related common areas.” ( Id. ) And, under the order, “[e]l ectronic communication devices” include “any device capable of communicating information fr om one person to another, including cell phones, pagers, tw o way radios, and laptop/notebook/tablet computers.” ( Id. ) The order further states that “[a]ll pe rsons and property . . . entering c ourt related facilities are subject to search by Sheriff Deputies for the purpose of enforcing this order” and that “[f]ailure to comply with this order may result in approp riate sanctions, including (A) being summarily barred or removed from court related faciliti es, and/or (B) imposition of a fine, including confiscation of any offending device, incarcera tion, or both for contempt of court.” ( Id. at PageID 477, 478.)
The Saginaw County Sheriff’s Department—l ed by Sheriff William Federspiel—handles security at the Governmental Center. Shortly afte r the Saginaw County judges issued the electronic device order, Lieutenant Randy Pfau circulated an internal memorandum to all Sheriff’s Department personne l. The memo explained: Starting 16 December 2013 ther e will be no electronic recording device allowed (cell ph one, camera, tablets, laptop computers, e[tc].) in the Saginaw County Courthouse by any members of the public. If they ar e brought in they will be treated as any other restricted item and people will be able to take them back to their cars. This is a policy that was established by the courts to stop the use of audio and video recordi ngs being taken by the public and released to identify or harass w itnesses. This policy is already common in neighboring counties and has been for some time. This policy will exclude the following persons:No. 15-1548 McKay v Federspiel, et al. Page 4

1) Courthouse employees 2) Active members of the State Bar of Michigan 3) Law enforcement person[nel] acting in that capacity 4) Probation and Parole officers acting in that capacity 5) Representatives of media agen cies authorized pursuant to AO 1989-1 6) Individuals granted ad hoc permission by an authorized judge. Persons not wishing to comply with this order will be barred from the courthouse and those in violation inside the building may have their electronic device confiscated. There is a permit that will be available for people coming for weddings and other official times th at an electronic device may be needed (see attached permit sample). The permits will be available with the Circuit court or at the Deputies[’] discretion. . . . (R. 35-3, PageID 479–80.)
McKay filed the instant lawsui t in January 2014, arguing thatthe electronic device order is unconstitutional bot h on its face and as applied to him, and seeking injuncti ve and declaratory relief to prevent Federspiel and Pfau from en forcing the order. McKay’s amended complaint alleges that he “seeks to exercise a right to record trial activitie s, the police and sheriff deputies inside and outside the courtroom in the performance of their offi cial duties, the judge in the performance of his or her duties, and other activ ities of public interest” in the Saginaw County Governmental Center. (R. 75, Pa geID 1384.) He further contends that the elec tronic device order violates the First, Fourteenth, and Fifth Amendments to the United States Constitution. McKay does not allege that he has requested or been denied judicial permission to use a prohibited electronic device in the Governmental Ce nter, nor does he allege any attempts to enter the building with such a prohibited device. Inst ead, McKay maintains that he “does not wish to be subject to contempt, conf iscation of any electronic devi ce (with or without private communications contained therei n), fined not more than $7,500.00, and/or jail[ed] for 93 days for exercising his constitutional rights.” ( Id. at PageID 1383.)

The district court denied Mc Kay’s request for a preliminar y injunction and later entered summary judgment against McKay with respect to his First Amen dment claims after the partiesNo. 15-1548 McKay v Federspiel, et al. Page 5

cross-moved for partial summary judgment. Af ter a second round of summ ary judgment briefing on the remaining counts, the court also entered summary judgment against McKay with respect to his Fourteenth and Fifth Amendment claims. The district court held, among other things, that McKay failed to show any legally cognizable injuryand therefore lacked constitutional standing to bring any of his asserted causes of acti on. McKay timely appealed from both summary judgment orders.

II. STANDARD OF REVIEW

This court reviews de novo a district court’ s grant of summary j udgment and dismissal for lack of standing. See Bench Billboard Co. v. City of Cincinnati , 675 F.3d 974, 980 (6th Cir. 2012). Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect the outcome of the su it under the governing law[,]” and a dispute about a material fact is genuine “if the evidence is su ch that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). At the summary judgment stage, we consider the evidence in the light most favorable to the nonmoving party and draw all reasonable in ferences in that party’s favor. See Chapman v. UAW Local 1005 , 670 F.3d 677, 680 (6th Cir. 2012) (en banc). And where, as here, the parties filed cross-motions for summary judgme nt, “the court must evaluate each party’s motion on its own merits, taking care in each instance to draw al l reasonable inferences against the party whose motion is under consideration.” Taft Broad. Co. v. United States , 929 F.2d 240, 248 (6th Cir. 1991) (quoting Mingus Constructors, In c. v. United States , 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

III. DISCUSSION
We address McKay’s First Amendment claims and the first order for summary judgment before turning to his Fourteenth and Fifth Am endment claims and the second order for summary judgment.No. 15-1548 McKay v Federspiel, et al. Page 6

A. First Amendment Claims
McKay argues that he has a First Amendment right to record trial and other activities in the Saginaw County Governmental Center and that the electronic device order improperly infringes upon that right. Before he can invoke this court’s jurisdic tion, however, McKay must demonstrate that he has standing to assert his First Amendment claims.
1. Legal Standard
Article III of the United States Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies[,]” U.S. Const. art. 3, § 2, and “[t]he doctrine of standing gives meaning to these constitutional limits by ‘identif [ying] those disputes which are appropriately resolved through the ju dicial process[,]’” Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2341 (2014) (second alteration in original) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992)). In essence, the standing doctri ne prompts courts to inquire “whether the plaintiff has ‘alleged such a personal stake in th e outcome of the controversy’ as to warrant his invocation of federal-court jurisd iction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin , 422 U.S. 490, 498–99 (1975) (quoting Baker v. Carr , 369 U.S. 186, 204 (1962)).
Courts assess constitutional standing in thre e parts, considering whether or not the plaintiff has alleged an “injury in fact” that is “fairly traceable to th e challenged action of the defendant” and is capable of bei ng “redressed” by the court. Lujan , 504 U.S. at 560–61; see also Morrison v. Bd. of Educ. of Boyd Cty. , 521 F.3d 602, 608 (6th Cir. 2008 ). “The party invoking federal jurisdiction bears the burden of establishing these elements[,]” Lujan , 504 U.S. at 561, and a plaintiff invoking jurisdictionmust “show[] that he has standing for each type of relief sought[,]” Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009). Moreover, “each element must be supported in the same way as any other matter on which th e plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence re quired at the successive stages of the litigation.” Lujan , 504 U.S. at 561. This means that , “in response to a summary judgment motion,” a plaintiff cannot rely on “mere allegations ” with respect to each standing element, “butNo. 15-1548 McKay v Federspiel, et al. Page 7

must set forth by affidavit or other evidence speci fic facts, which for purposes of the summary judgment motion will be taken to be true.” Id. (internal citation omitted).
“In a pre-enforcement challenge, whether th e plaintiff has standi ng to sue often turns upon whether he can demonstrate an ‘injury in fact’ before the state has actually commenced an enforcement proceeding against him.” Kiser v. Reitz , 765 F.3d 601, 607 (6th Cir. 2014). The Supreme Court has recognized that “[a]n allegation of future injury may” satisfy the injury-infact requirement if the alleged “threatened in jury is ‘certainly im pending,’ or there is a ‘substantial risk that the harm will occur.’” Susan B. Anthony List , 134 S. Ct. at 2341 (quoting Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138, 1147, 1150 n.5 (2013)). Specifically, “a plaintiff satisfies the injury-in-fact requirement” in th e pre-enforcement context “where he alleges ‘an intention to engage in a course of conduct arguably affected w ith a constitutional interest, but proscribed by statute, and there exists a cr edible threat of prosecution thereunder.’” Id. at 2342 (quoting Babbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 298 (1979)).
2. Analysis
With respect to intent in the present case, the only record evidence regarding McKay’s intended course of conduct at the time the district court ruled on the parties’ first cross-motions for summary judgment was the allegation in McKay’s amended complaint that he seeks to exercise a right to reco rd trial activities, the police and sheriff deputies inside and out side the courtroom in the performance of their official dutie s, the judge in the performance of his or her duties, and other activ ities of public in terest occurring at the Saginaw County Governmental Center. (R. 75, PageID 1384.) These allegations, wit hout more, cannot estab lish McKay’s intended conduct “with the manner and degree of eviden ce required” for standing purposes at the summary judgment stage. Lujan , 504 U.S. at 561. While “mere allegations” might have been enough to survive a standing challe nge at the motion to dismiss st age, they are insufficient to carry McKay past summary judgment. Id. McKay also points to an affidavit that he later filed regarding his intended actions. That affidavit repeats the above-quoted language from McKay’s amended complaint and further states that “[b]ut for the Electronics Ban Order, I would take photographs and/or video recordings of public officials in the perf ormance of their public dutiesNo. 15-1548 McKay v Federspiel, et al. Page 8

within the courtrooms at the Saginaw County G overnmental Center” and would do so “quietly, noiselessly, and without [in] any way [interrupting] court proceedings[,] with a modern recording device that can be as small as a deck of play ing cards, like an iPhone or other hand-held recording device.” (R. 68-5, PageID 128, 1285.) But McKay did not file his affidavit until after the court’s entry of partial summary judgment on the First Amendment claims, and “[i]n general, an appellate court reviewing a gr ant of summary judgment cannot c onsider evidence that was not before the district court at the time of its ruling.” Good v. Ohio Edison Co. , 149 F.3d 413, 421 n.16 (6th Cir. 1998); see also Fed. R. App. P. 10(a). We may consider McKay’s late-filed affidavit “for the sake of thoroughness” because it will not change the outcome of our analysis. Good , 149 F.3d at 421 n.16; see also 16A Charles Alan Wright et al., Federal Practice & Procedure § 3956.1 (4th ed. 2008). Even if McKay’s affidavit constitutes sufficient summary judgment evidence of his intended conduct, McKay would still have to show that such conduct is “arguably affected with a constitutional interest, but proscribed by a statut e, and there exists a credible threat of prosecution thereunder” to establish standing to bring suit under the First Amendment. Susan B. Anthony List , 134 S. Ct. at 2342 (quoting Babbitt , 442 U.S. at 298).
Federspiel and Pfau do not di spute that the electronic devi ce order proscribes McKay’s intended conduct, and a plain read ing of the order suggests that it would apply to McKay’s proposed recording unless he sought and received an exemption. 1 Assuming without deciding that McKay’s proposed recording activities am ount to conduct arguably affected with a constitutional interest, McKay must still show “a credible threat of prosecution” in order to establish a requisite injury-in-fact. Id. 2 “[W]ithout some other indication of imminent

1 See infra Part III.B.2.
2 We assume for purposes of the standing inquiry in this case that the ban on recording courtroom proceedings may affect constitutional rights. Federspiel and Pfau challenge that premise, noting that both the Supreme Court and our circuit have declined to recogniz e a constitutional right to reco rd courtroom proceedings. See Estes v. State of Texas , 381 U.S. 532, 539 (1965); Conway v. United States , 852 F.2d 187, 188 (6th Cir. 1988) (per curiam). McKay nevertheless points to the First Circuit’s opinion in Glik v. Cunniffe , 655 F.3d 78 (1st Cir. 2011), and the Eleventh Circuit’s opinion in Smith v. City of Cumming , 212 F.3d 1332 (11th Cir. 2000), in support of his asserted right to record . McKay is correct that the Glik and Smith courts recognized a First Amendment right to videotape government officials carrying out their duties in public. See Glik , 655 F.3d at 82; Smith , 212 F.3d at 1333. But, as Federspiel and Pfau point out, neither of those cases concerned videotaping activity inside a courtroom, and courtrooms are consider ed “nonpublic” spaces for First Amendm ent purposes under our precedent. Mezibov v. Allen , 411 F.3d 712, 718 (6th Cir. 2005), cert. denied , 547 U.S. 1111 (2006). Given our resolution of this case, we do not settle the competing arguments here.No. 15-1548 McKay v Federspiel, et al. Page 9

enforcement[,]” our circuit has held that mere allegations of a “subjective chill” on protected speech are insufficient to establish an injury-i n-fact for pre-enforcement standing purposes. Berry v. Schmitt , 688 F.3d 290, 296 (6th Cir. 2012) (citing Morrison , 521 F.3d at 607). We have, however, found a credible thr eat of prosecution where plain tiffs allege a subjective chill and point to some combination of the following f actors: (1) a history of past enforcement against the plaintiffs or others, see, e.g. , Russell v. Lundergan-Grimes , 784 F.3d 1037, 1049 (6th Cir. 2015); (2) enforcement warning letters sent to the plaintiffs regarding their specific conduct,

see, e.g. , Kiser v. Reitz , 765 F.3d 601, 608–09 (6th Cir. 2014); Berry , 688 F.3d at 297; and/or (3) an attribute of the challenged statute that ma kes enforcement easier or more likely, such as a provision allowing any member of the public to initiate an enforcement action, see Platt v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court , 769 F.3d 447, 452 (6th Cir. 2014). See also Susan B. Anthony List , 134 S. Ct. at 2345 (finding “sub stantial” “threat of future enforcement” based on “history of past enfo rcement[,]” statutory provision “allow[ing] ‘any person’ with knowledge of the purported violati on to file a complaint[,]” and evidence that enforcement proceedings were common). We have also taken into consideration a defendant’s refusal to disavow enforcement of the challenge d statute against a particular plaintiff. See Kiser , 765 F.3d at 609; Platt , 769 F.3d at 452. By contrast, we have declined to find a credible threat of prosecution—and, thus, declined to find pre-enfor cement standing—where plai ntiffs have failed to show such a combination and where “the reco rd is silent as to whether the [defendants] threatened to punish or would have punished” a plaintiff for pr oposed conduct that might violate the challenged policy or statute. Morrison , 521 F.3d at 611.
In the instant case, McKay argues that he faces a credible threat of prosecution because: (1) the existence of the electronic device order implies a threat of enforcement; (2) there are “[s]igns around the Saginaw C ounty Governmental Center . . . threat[ening] enforcement” (Appellant’s Br. at 21); and (3) Federspiel and Pfau “have never disavowed the enforcement of the . . . [o]rder against McKay” ( id. ). McKay relies on a case from the Seventh Circuit, Bauer v. Shepard , 620 F.3d 704 (7th Cir. 2010), for the proposition that the “existence of a statute implies a threat to prosecute,” (Appellant’s Br. at 20 (alteration omitted) (quoting Bauer , 620 F.3d at 708)). But unlike the judicial code of conduct at issue in Bauer , see 620 F.3d at 707, the electronic device order at issue here provides for exemp tions on a case-by-case basis, whichNo. 15-1548 McKay v Federspiel, et al. Page 10

makes enforcement less certain given that McKay does not allege that he has requested (much less been denied) such an exemption.
As for the signs McKay references, the record contains evidence of multiple signs posted in and around the Governmental Ce nter; many of them state that there are to be “NO Electronic Devices on” certain floors and in certain specif ied areas of the building “without Judicial Permission[,]” and that “Violation May Result in Contempt Sanctions.” (R. 44-6, PageID 756.) In both Kiser and Berry , we found a credible threat of enforcement based, in part, on the fact that the plaintiffs received multiple warning letters informing them that their specific conduct violated the laws challenged in those cases. See Kiser , 765 F.3d at 609; Berry , 688 F.3d at 297. The signs in the present case are distinguishable from those warning letters because the signs do not give rise to the same level of threatened enforcement—unlike the letters in Kiser and Berry , the signs in the present case address the general p ublic, not McKay specifically or any of his past conduct, and the signs also reference the possibi lity of an exemption by judicial permission.
Finally, the issue of disavowal in this cas e appears to be more nuanced than McKay suggests. Federspiel and Pfau filed an affidavit from Lt. Pfau stating that deputy sheriffs have no independent authority to enforce the ch allenged order. Pfau maintains that: Sheriff’s Deputies have been instructed not to detain[] any individual thought to be in viol ation of the Local Administrative Order or to confiscate any devi ce maintained by any individual found to be in violation of the Lo cal Administrative Order unless directed to do so by a Judge of the Saginaw County Courts. (R. 44-9, PageID 791.) McKay has not pointed to any record evidence to dispute this testimony and, even construed in the light most favorable to McKay, Pfau’s affidavit suggests that any threat of enforcement against McKay or othe rs is less immediate than McKay contends.
More importantly, the record is silent regard ing any history of past enforcement of the order against McKay or anyone else. There is si mply no evidence in th e current record that anyone has ever been held in contempt—or even subject to contempt proceedings—for violating the challenged order. McKay is correct that “an act ual arrest, prosecution, or other enforcement action is not a prerequisite to challenging” the electronic device order on constitutional grounds. Susan B. Anthony List , 134 S. Ct. at 2342. Neve rtheless, under our preced ent, McKay has not setNo. 15-1548 McKay v Federspiel, et al. Page 11

forth the manner and degree of evid ence required to demonstrate a cr edible threat of enforcement at the summary judgment stage, especially since he has not yet sought an administrative exemption from the challenged order. Conseque ntly, based on the curren t record, we conclude that McKay lacks standing to br ing his First Amendment claims. We express no opinion on the merits of McKay’s First Amendment arguments.

B. Fourteenth And Fifth Amendment Claims
McKay further asserts that the electronic device order violates his right to equal protection under the FourteenthAmendment and is void for vagueness under the Fifth Amendment. As explained, McKay bears the burden of establishing this court’s jurisdiction to hear his claims. See Lujan , 504 U.S. at 561.
1. Legal Standard
The standard for demonstrating a pre-enfor cement injury-in-fact—a nd, thus, establishing a necessary element of standing—with respect to McKay’s Fourteenth Amendment claim parallels the standard for his First Amendment cl aim: McKay must allege “‘an intention to engage in a course of conduct argu ably affected with a constituti onal interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List , 134 S. Ct. at 2342 (quoting Babbitt , 442 U.S. at 298); see also Babbitt , 442 U.S. at 297–99 (applying single standard to anal yze plaintiffs’ pre-enforcement standing with respect to First and Fourteenth Amendment claims); Platt , 769 F.3d at 450–52 (same). In regard to McKay’s ability to maintain his Fifth Amendment vagueness claim, our circuit has held that “[e]ven if a statute might be vague as it relates to other, hypot hetical [individuals], c ourts will not entertain vagueness challenges on behalf of [individuals] whose conduct clearl y falls within the ambit of the statute.” United States v. Kernell , 667 F.3d 746, 750 (6th Cir. 2012). In other words, and as relevant in the instant case, if the electronic device order’s prohibiti ons are not vague with respect to McKay’s proposed conduct, then he lacks standing to challenge the order on vagueness grounds. This means that in additio n to meeting the constitutional standing requirements discussed above—an inju ry-in-fact fairly traceable to the challenged actions that is capable of being redressed by the court, see Lujan , 504 U.S. at 560–61—to pursue his vaguenessNo. 15-1548 McKay v Federspiel, et al. Page 12

challenge McKay must also show that his propos ed conduct does not clearly fall within the scope of the electroni c device order.
2. Analysis
Because McKay filed the affidavit regardin g his intended conduct with his second crossmotion for summary judgment—whi ch concerned his Fourteenth and Fifth Amendment claims— the affidavit is properly included in the appellate record with respect to this part of McKay’s appeal. See Fed. R. App. P. 10(a). The standing anal ysis for McKay’s Fourteenth Amendment equal protection challenge substantially mirrors th e analysis for his First Amendment claim. The outcome is the same: Even if his proposed recording arguably implicates a constitutional interest, McKay still has not shown a credible th reat of prosecution, with the manner and degree of evidence required to w ithstand summary judgment.
As for McKay’s Fifth Amendment standing and whether or not McKay’s proposed conduct falls within the ambit of th e electronic device order, McKay st ates in his affidavit that he intends to use “a modern recording device . . . like an iPhone” to “record trial activities, the police and sheriff deputies inside and outside the courtr oom in the performan ce of their official duties, the judge in the performan ce of his or her duties, and other activities of pu blic interest occurring at the Saginaw County Governmental Center.” (R. 68-5, PageID 1285, 1284.) McKay has further clarified that he in tends “to record . . . inside a nd just outside the publicly-open courtrooms in the” building. (Appellant’s Br. at 28 n.13 (emphasis omitt ed).) McKay does not appear to dispute that the challenged order w ould extend to his choice of recording device. Instead, McKay argues that the phrase “related common areas” in the order’s definition of “court related facilities” is unconstitutio nally vague because it “fail[s] to inform him and the public what constitutes ‘related common areas’ within the Saginaw Count y Governmental Center[.]” ( Id. at 46.) Because the order expressly prohi bits the possession or use of electronic communication devices in “courtrooms,” (R. 35- 2, PageID 477), it is beyond debate that the order encompasses McKay’s proposed recording of courtroom proceedings. And a plain reading of the order suggests that “rel ated common areas” at a minimum includes the areas “just outside the publicly-open courtrooms” where McKay also al legedly intends to reco rd. The electronicNo. 15-1548 McKay v Federspiel, et al. Page 13

device order therefore clearly covers McKay’s pr oposed conduct, deprivi ng him of standing to challenge the order on vagueness grounds. See Kernell , 667 F.3d at 750.

IV. CONCLUSION
In light of the sparse appellate record in the instant case and the constraints of our precedent, we cannot say that McKa y has carried his burden to esta blish standing with respect to any of his claims in the manner and degree re quired at summary judg ment. We therefore
AFFIRM

.