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 Courts have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. A plaintiff satisfies the injury-in-fact requirement where he alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder. Babbitt v. Farm Workers, 442 U. S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979). Several cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent with Article III.


In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him.


The court determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his companion’s prosecution showed that his  “concern with arrest” was not “‘ chimerical.’” ...

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