Submitted: September 27, 2018
from United States District Court for the Eastern District of
Arkansas - Little Rock
SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
MELLOY, CIRCUIT JUDGE.
Andrew Rodgers and Glynn Dilbeck challenge an Arkansas
anti-loitering law that bans begging in a manner that is
harassing, causes alarm, or impedes traffic. The district
court granted a statewide preliminary injunction
preventing Arkansas from enforcing the ban while Rodgers and
Dilbeck pursue their claim that the law violates the First
Amendment. Having jurisdiction under 28 U.S.C. §
1292(a)(1), we affirm.
and Dilbeck, who have been begging in Arkansas for a long
time, claim that Arkansas's anti-loitering law violates
their free-speech rights. According to the law:
(a) A person commits the offense of loitering if he or she:
(3) Lingers or remains on a sidewalk, roadway, or public
right-of-way, in a public parking lot or public
transportation vehicle or facility, or on private property,
for the purpose of asking for anything as charity or a gift:
(A) In a harassing or threatening manner;
(B) In a way likely to cause alarm to the other person; or
(C) Under circumstances that create a traffic hazard or
Ark. Code Ann. § 5-71-213 (2017) (amended 2019).
Violations are punishable by up to 30 days in jail and a fine
of up to $500. See id. §§ 5-4-201(b)(3),
and Dilbeck, who were arrested or cited under a prior version
of Arkansas's anti-loitering law, see id. §
5-71-213(a)(3) (1995) (making it a misdemeanor to
"[l]inger or remain in a public place or on the
premises of another for the purpose of begging"), allege
that they have changed their behavior because they fear
arrest under the new law. Among other things, they changed
the locations where they beg and stopped using signs in some
areas; Dilbeck even claims to have moved to Tennessee in an
alleged effort to avoid application of the law. Absent the
anti-loitering law, Rodgers and Dilbeck say they would beg
"openly and without fear" in Arkansas.
and Dilbeck brought a First Amendment challenge to the
anti-loitering law and requested a preliminary
injunction. The district court granted a statewide
preliminary injunction based on its conclusion that the law,
which it classified as a content-based restriction on speech,
does not serve a compelling state interest and is
"plainly unconstitutional." Arkansas filed this
interlocutory appeal challenging the preliminary injunction.
Arkansas argues that Rodgers and Dilbeck lack standing to
bring their constitutional challenge, that the anti-loitering
law is constitutional, and, in the alternative, that the
district court should have entered an injunction preventing
enforcement of the law only against Rodgers and Dilbeck.
standing to challenge the Arkansas law, Rodgers and Dilbeck
must establish (1) an injury in fact; (2) a causal connection
between the injury and the law; and (3) that a favorable
decision will "likely" redress the injury. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
We review questions of standing de novo. In re SuperValu,
Inc., 870 F.3d 763, 768 (8th Cir. 2017). At this stage
of the litigation, we assume that the allegations in the
complaint are true and view the record in the light most
favorable to Rodgers and Dilbeck. See id.
parties disagree about whether Rodgers and Dilbeck have
suffered an injury in fact. After all, neither specifically
claims to have violated the law, let alone to have been
prosecuted under it. In the First Amendment context, however,
"[s]elf-censorship can itself constitute injury in
fact" if the "plaintiff[s] show an intention to
engage in . . . conduct arguably affected with a
constitutional interest" and "there exists a
credible threat of prosecution." 281 Care Comm. v.
Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (internal
quotation marks and citation omitted). In other words, a
law's "chilling effect" can create standing.
Id. at 627-28; see also Steffel v.
Thompson, 415 U.S. 452, 459 (1974) ("[I]t is not
necessary that petitioner first expose himself to actual
arrest or prosecution to be entitled to challenge a statute
that he claims deters the exercise of his constitutional
and Dilbeck have adequately alleged that their speech is, and
will continue to be, chilled by Arkansas's anti-loitering
law. They claim to have changed when, where, and how they beg
due to fear of being criminally prosecuted. See 281 Care
Comm., 638 F.3d at 627. They also allege that their
begging has caused people to react in fear or alarm and has
even occasionally slowed traffic. Viewing the record in the
light most favorable to them, SuperValu, 870 F.3d at
768, Rodgers and Dilbeck have established a credible threat
of prosecution that gives them standing to challenge the law.
claims that it would never enforce its anti-loitering law
against "polite" and "courteous" beggars
like Rodgers and Dilbeck. Even if true now, however,
Arkansas's in-court assurances do not rule out the
possibility that it will change its mind and enforce the law
more aggressively in the future. See United Food &
Commercial Workers Int'l Union v. IBP, Inc., 857
F.2d 422, 429 (8th Cir. 1988) (rejecting the argument that
the plaintiffs lacked standing because the defendants did not
plan to enforce an anti-picketing law against them). Nor do
these assurances make Rodgers and Dilbeck's fear of
prosecution objectively unreasonable because the law's
plain language covers their intended activities, and they
have already been arrested or cited under a prior version of
the law. See Saint Paul Area Chamber of
Commerce v. Gaertner, 439 F.3d 481, 485 (8th Cir. 2006)
(stating that "fear of prosecution is not imaginary or
speculative" when the law, "on [its] face,"
prohibits the plaintiffs' conduct).
established that Rodgers and Dilbeck's chilled speech
amounts to a constitutional injury, we have no trouble
concluding that the injury is fairly traceable to the
potential enforcement of the anti-loitering law and would be
redressed by an injunction prohibiting its enforcement.
Lujan, 504 U.S. at 560-61. Accordingly, they have
standing to seek a preliminary injunction. We now turn to the
district court granted a preliminary injunction after
weighing four factors: "(1) the threat of irreparable
harm to [Rodgers and Dilbeck]; (2) the state of the balance
between this harm and the injury that granting the injunction
[would] inflict on [Arkansas]; (3) the probability that
[Rodgers and Dilbeck would] succeed on the merits; and (4)
the public interest." Dataphase Sys., Inc. v. C L
Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc).
Under the third Dataphase factor, parties seeking to
preliminarily enjoin the "implementation of a state
statute" must demonstrate that they are "likely to
prevail on the merits." Planned Parenthood Minn.,
N.D., S.D. v. Rounds, 530 F.3d 724, 731-32 (8th Cir.
2008) (en banc) (citation omitted). This is in contrast to
the "fair chance" of success that is typically
required. Id. at 732. The higher bar "reflects
the idea that governmental policies implemented through
legislation . . . [and] developed through presumptively
reasoned democratic processes are entitled to a higher degree
of deference and should not be enjoined lightly."
Id. (citation omitted). Generally, if a party shows
a "likely violation of his or her First Amendment
rights, the other requirements for obtaining a preliminary
injunction are . . . deemed to have been satisfied."
Minn. Citizens Concerned for Life, Inc. v. Swanson,
692 F.3d 864, 870 (8th Cir. 2012) (en banc) (citation
omitted). We review a district court's balancing of the
Dataphase factors for an abuse of discretion.
Rounds, 530 F.3d at 733.
district court ruled that Rodgers and Dilbeck were likely to
prevail on their claim that Arkansas's anti-loitering law
violates the First Amendment. Because Arkansas has so far
failed to establish that the law is narrowly tailored to
achieve a compelling interest, we agree.
and Dilbeck want to go to public areas, hold signs, and
speak. The fact that they intend to ask for money does not
mean that their speech is unprotected. To the contrary,
asking for charity or gifts, whether "on the street or
door to door," is protected First Amendment speech.
Vill. of Schaumburg v. Citizens for a Better
Env't, 444 U.S. 620, 632 (1980); see also
Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir. 2015)
("There is no question that panhandling and solicitation
of charitable contributions are protected speech.");