District Court gets defensive/offensive right--standing still sucks

In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas' exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.

The district court corrected that on remand. It granted defendant's motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff's argument that in finding an injury the court found state action. While the issues can be "one-and-the-same," the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available--why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.