When There Are Many Ways to Lose a Single Case

Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of Platinum Sports Ltd. v. Snyder.  The opinion by Judge Sutton begins:

In 2011, the Michigan legislature enacted two laws. One barred sexually oriented businesses from displaying signs on the premises that contained more than “words or numbers.” Mich. Comp. Laws § 125.2833. The other imposed similar restrictions on off-site billboards. Mich. Comp. Laws § 252.318a. Two businesses affected by the legislation sued Governor Rick Snyder (and in one lawsuit also named Attorney General Bill Schuette), challenging the laws on First Amendment grounds. See Compl. at 18, Top Flight Entm’t, Ltd. v. Snyder, No. 5:11-cv-13133 (E.D. Mich. July 20, 2011); Amend. Compl. at 14, 16, ABCDE Operating, LLC v. Snyder, No. 5:11-cv-11426 (E.D. Mich. May 6, 2011). The district court preliminarily enjoined enforcement of the laws. In response, the Governor and the Attorney General stipulated to a final judgment declaring both laws facially unconstitutional and permanently enjoining their enforcement. Top Flight, No. 5:11-cv-13133 (Aug. 26, 2011), ECF No. 10; ABCDE, No. 5:11-cv-11426 (Aug. 25, 2011), ECF No. 25. That, one might have thought, was the end of that.

Yet two months later, on October 21, 2011, Platinum Sports, represented by the same attorney who had won the first set of lawsuits, sued the same defendants, challenging the same laws (and one other largely irrelevant provision) on the same free speech grounds. Whether Platinum Sports wished to seize potential defeat from the jaws of established victory or hoped to pile victory (and potential § 1988 fees) on top of victory is not clear. What is clear is that the federal courts have no authority to resolve this “dispute.” The hardest question is which Article III defect to invoke. We choose lack of standing, lack in particular of a cognizable injury, and on that ground affirm the district court’s dismissal of the case.