Carrico v. City of San Francisco

In order to establish standing for a claim of violation of the First Amendment based upon free speech, there must be some description of the restricted speech or conduct.

San Francisco passed Proposition M in 2008, which amended the City’s landlord-tenant ordinance to include a prohibition of landlords from asking tenants to vacate the premises with promises of payments to do so, coupled with threats or intimidation. The Small Property Owners of San Francisco Institute (“SPOFI”), along with two individual residential landlords, filed suit requesting a permanent injunction from enforcement of Proposition M. SPOFI claimed that the law violated the First Amendment and made other state and federal claims. The district court dismissed the complaint and SPOFI appealed. The Ninth Circuit raised the issue of standing nostra sponte. The Ninth Circuit looked to the complaint and noted that First Amendment claim was alleging a facial attack. The Ninth Circuit noted that while there is a doctrine of pre-enforcement that allows petitioners to claim a violation of the First Amendment without subjecting themselves to possible penalties under the law, there must be some allegation of the speech or conduct that is restricted. The Ninth Circuit held that since SPOFI had made no allegation as to the speech or conduct they were restricted from using, the Ninth Circuit could not analyze the claim under the pre-enforcement doctrine. VACATED and REMANDED with instructions to DISMISS.