Rio Grande Foundation v. City of Santa Fe, New Mexico, et al.

This Court has held that a plaintiff may challenge the constitutionality of a burden on speech by alleging that it objectively deters people from exercising their speech rights—i.e., a “chilling effect.” Rio Grande Foundation (RGF) challenged the constitutionality of a Santa Fe ordinance that forces nonprofits to reveal their donors’ private information whenever the nonprofit spends more than $250 supporting or opposing a ballot initiative. RGF alleged that this mandate would chill speech by a person of ordinary firmness. The Tenth Circuit, however, held that “an element of a chilled speech injury is an actual intention not to speak,” and because RGF expects to support or oppose ballot initiatives in the future, it lacks standing to bring its chill claim, regardless of whether the ordinance would chill speech by a person of ordinary firmness. Did the Tenth Circuit err?