Opportunities to fix U.S. Supreme Court opinions can be infrequent.

Very infrequent.

It took until 2018 for the court to abrogate its 1944 Japanese-internment-camp opinion in Korematsu v. United States.

Now the high court has an opportunity to clarify a 2014 opinion that has caused confusion.

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Meet Kaley Chiles.

In Chiles v. Salazar, Colorado-resident Chiles brings a First Amendment challenge. She wants to engage in speech that Colorado bans.

The Denver-based U.S. Court of Appeals for the Tenth Circuit rejected her First Amendment challenge. Chiles has appealed.

Yet to bring her challenge in the first place, Chiles must establish she has what courts call “standing.”

Standing addresses who may bring a claim or seek a form of relief. Standing is different from ripeness and mootness, which ask when a claim may be brought or a form of relief may be sought.

Under the 1988 Supreme Court opinion in Virginia v. American Booksellers Association: For pre-enforcement challengers such as Chiles to establish standing, they must demonstrate–among other things–that they have “an actual and well-founded fear” of civil enforcement of, or criminal prosecution under, the challenged law.

On standing, the Tenth Circuit reached the right result for the wrong reasons. That is, the court correctly held that Chiles has standing, yet the Tenth Circuit’s analysis is too stringent.

A full discussion of what went awry is beyond today’s column.

One of the errors lies in the Tenth Circuit’s having identified “at least three factors” to determine whether challengers such as Chiles have a credible fear of enforcement or prosecution.

All “three factors” are incorrect.

How did that happen?

Well, all we have to do is follow the trail. The Tenth Circuit Chiles opinion quotes a Tenth Circuit opinion from 2022, which quotes a Tenth Circuit opinion from 2021, which quotes a Supreme Court opinion from 2014.

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With that, let’s pick up where we left off nine weeks ago.

You, faithful reader of this column, will recall that the 2014 Supreme Court opinion is Susan B. Anthony List v. Driehaus.

Nine weeks ago, we didn’t know the court would have an opportunity to clarify Anthony List. Since then, the court has agreed to hear Chiles’s challenge, which presents such an opportunity.

One problem with the Tenth Circuit’s analysis is that the “three factors” are merely facts of Anthony List.

They aren’t factors limiting challengers’ having standing.

Given those facts, Anthony List was an easy case on credible fear.

Given other facts, Anthony List was an easy case on standing overall.

In other words, Anthony List was in no way a close call. The high court unanimously held that the Anthony List challengers had standing.

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To look at this in a slightly different way, the Supreme Court held, and rightly so, that under the facts that the Anthony List challengers presented, they had standing.

It doesn’t follow, however, that challengers presenting less-easy facts lack standing. Challengers can present less-easy facts and still have standing.

Believing otherwise indulges the fallacy of the inverse: Starting with the statement, “If A, then B,” and concluding from that, “If not A, then not B.” One can’t start with the former and, without more, conclude the latter.

Here, one can’t start with the statement, “If challengers present Anthony List facts, then they have standing,” and conclude from that, “If challengers do not present Anthony List facts, then they do not have standing.”

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The Anthony List opinion could have deterred the Tenth Circuit’s misunderstanding.

Saying something such as this may have sufficed to deter the fallacy of the inverse in lower courts: “Anthony List presents an easy case on standing. We do not hold that challengers not presenting Anthony List’s facts lack standing. That is not before us. We leave such a question for another day.”

Without such a clarification, the Anthony List opinion has created confusion, and the “at least three factors” language in the Tenth Circuit ensued.

In Chiles, the high court would do well to resolve the confusion, particularly since the confusion stems in part from a previous high-court opinion.

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Standing and its counterparts, ripeness and mootness, are constitutional-law issues that together are called “justiciability.”

Justiciability of First Amendment pre-enforcement challenges, including Chiles v. Salazar, is the topic of a discussion led by this columnist at 7 p.m. Wednesday, May 14, at the Fenton History Center, 67 Washington St., Jamestown.

Justiciability is separate from the merits of the First Amendment challenges.

The discussion–called “Who May Bring First Amendment Pre-Enforcement Challenges and When”–is free and open to the public, will last about an hour, and is part of the 2025 Fenton History Center Lecture Series.

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Dr. Randy Elf’s Supreme Court brief in Chiles v. Salazar is forthcoming.

COPYRIGHT © 2025 BY RANDY ELF