Ripeness in Free Speech Cases

Ripeness is a justiciability doctrine concerned with identifying cases that are premature for judicial review because the injury that the plaintiff seeks to prevent—typically through injunction or declaratory judgment—is merely speculative and may never occur. In free speech cases, if the defendant government argues that the case is unripe because the challenged law has not been enforced, the plaintiff argues that the law inhibits speech and the courts should decide its constitutionality before it is enforced.

It is often difficult to distinguish ripeness cases and discern an underlying principle. Three Supreme Court free speech cases exemplify this: United Public Workers v. Mitchell (1947) involved a challenge to the Hatch Act, which barred federal employees from political activity. Only one plaintiff had been disciplined; the others’ claims were dismissed as unripe because the court could ‘‘only speculate’’ about the kinds of activity and speech they wanted to engage in and about how the law would be enforced.

In Adler v. Board of Education (1952), New York City schoolteachers challenged a state law requiring dismissal of anyone who advocated overthrowing the government by force or violence or who belonged to an organization that did. No one had yet been dismissed, yet the court found the case ripe for adjudication and sustained the law.

In Cramp v. Board of Public Instruction (1961), the Court implicitly found ripeness by invalidating a Florida law requiring every employee to take an oath that he had never lent ‘‘aid, support, advice or influence to the Communist Party.’’ The court found that the law was vague and could potentially inhibit speech.

One possible unifying theme of these cases is that if the justices consider the challenged law to be clearly facially unconstitutional (Cramp) or constitutional under any conceivable set of circumstances (Adler), ripeness is not an issue, but when the outcome may hinge on the nature of a plaintiff’s activity or speech and on the circumstances of the enforcement (Mitchell), the Court may defer judicial review until (if ever) an appropriate case presents itself.

WILLIAM V. DUNLAP

References and Further Reading

• Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 2nd ed. New York: Aspen Law & Business, 2002.
• Nowak, John E., and Ronald D. Rotunda. Constitutional Law. 7th ed. St. Paul, MN: West, 2004.
• Tribe, Laurence. American Constitutional Law. 3rd ed., vol. 1. St. Paul, MN: West, 2000.

Cases and Statutes Cited

• Adler v. Board of Education, 342 U.S.485 (1952)
• Cramp v. Board of Public Instruction, 368 U.S. 278 (1961)
• United Public Workers v. Mitchell, 330 U.S. 75 (1947)

See also Hatch Act; Standing in Free Speech Cases