One puzzle in the universality debate is the effect of facial (as opposed to as-applied) invalidity on the scope of the injunction. Sanderson v. Hanaway may present the question.
Plaintiff brought a facial First Amendment challenge to a Missouri law requiring registered sex offenders to post a sign reading “No candy or treats at this residence” on Halloween.” The sign provision existed alongside three other requirements on registered sex offenders–do not give out candy, remain in the house, and keep the lights off. The Eighth Circuit affirmed a preliminary injunction, concluding that the sign provision constitutes compelled speech and does not survive strict scrutiny because it does not meaningfully protect children beyond the non-speech provisions.
The district court issued a universal injunction, although framed in unfortunate pre-CASA language of prohibiting enforcement “anywhere in Missouri.” The Eighth Circuit did not address scope; it remanded for the district court to reconsider scope in light of CASA, decided after the district court issued the injunction.
The injunction is overbroad under CASA (and pre-CASA, frankly). Complete relief to Sanderson does not require protecting any other person from enforcement of the sign provision; enforcement of the sign provision against another person does not undermine Sanderson’s relief.
The district court almost certainly relied on the fact that this was a facial challenge. But that should not matter. CASA identified four circumstances in which broad relief might be appropriate–class actions, unique plaintiffs, necessarily independent claims and remedies, perhaps the APA. Facial-rather-than-as-applied was not one of them. Nor should it. Facial challenges do not create class-like litigation permitting class-like judgments and remedies. Nor does the facial challenge render claims and remedies indivisible, such that relief to the plaintiff incidentally affects non-plaintiffs (akin to orders for the prison to clean the raw sewage or the neighbor to turn down her music).
Courts should look to Dick Fallon’s framing of the meaning of a “facial” challenged. He argued that it affected he scope of the opinion rather than the judgment. A binding determination (by a court of appeals or SCOTUS) of facial invalidity eliminates all (or most) debate in the next case involving a different right-holder; the court having established the law’s facial invalidity, other courts must follow suit. Possible factual distinctions do not matter. But the judgment in the case affected only the plaintiff and the injunction protected only the plaintiff. In essence, Fallon argued, all pre-enforcement challenged were as-applied for purposes of the judgment and remedy.