KANSAS CITY, Kan. — Let’s pick up where we left off two weeks ago.

The U.S. Supreme Court’s 2025 opinion in TikTok, Inc. v. Garland unanimously, masterfully resolved a complicated issue quickly.

Applause, applause.

Yet judges, including Supreme Court justices, aren’t perfect.

Today let’s look at one way in which they haven’t been.

Then you can see what it’s like for lawyers who have the task of straightening out such imperfections.

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Meet James Muir and Chengny Thao.

They’re officers of Fresh Vision OP, Inc., a Kansas organization seeking to engage in political speech.

But two aspects of Kansas law would then trigger political-committee or political-committee-like burdens for Fresh Vision.

This law violates the First Amendment.

To bring a challenge, Fresh Vision and its officers–whom we’ll call “Fresh Vision” here–must prove they have what courts call standing.

To do so, Fresh Vision must prove, among other things, that it has what the Supreme Court–in Virginia v. American Booksellers Association, Inc. in 1988–called “an actual and well-founded fear” of enforcement of, or prosecution under, the challenged law. This isn’t hard to prove.

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So what’s the problem?

In Susan B. Anthony List v. Driehaus in 2014, the Supreme Court unanimously held Anthony List had standing to challenge political-speech law.

Under the facts Anthony List presented, standing wasn’t even a close call. In short, this was an easy case.

Yet Kansas is in the circuit of the Denver-based federal-appellate court, so its opinions are controlling law in Kansas.

In multiple opinions, this appellate court has drawn on three facts making Anthony List an easy case. Citing those facts, the court has “described” or “identified at least three factors to be used in determining a credible fear of (enforcement or) prosecution.”

Do you see where this is going?

Yes, those three Anthony List facts are factors in this sense: The Supreme Court held, and rightly so, that given those facts, Anthony List had standing.

It doesn’t follow, however, that challengers not presenting the three Anthony List facts lack standing. Challengers can present less-easy facts and still have standing.

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Think of it this way: Suppose friends say to you, “If we win the lottery, we’ll buy you a birthday present.”

The friends were merely discussing the easy case. They neither said nor implied that if they don’t win the lottery, they won’t buy you a birthday present.

To believe they did is to indulge what you may have learned in a high-school math class is the fallacy of the inverse: Starting with the statement, “If A, then B,” and concluding from that, “If not A, then not B.” One can’t start with the former and, without more, conclude the latter. The latter doesn’t automatically follow from the former.

Besides, the appellate court’s opinions refer not to “three factors to be used” but to “at least three factors to be used.”

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It’s easy to misread the appellate court’s opinions as holding that challengers not presenting the three Anthony List facts lack standing.

The federal-district court in Kansas City understandably did this. The court then held that Fresh Vision lacked standing to challenge one law, because Fresh Vision didn’t meet these three “factors” regarding the one law.

The appellate court’s “at least three factors” language can affect not only Fresh Vision but also any First Amendment challenger in any state in the Denver-based circuit: Wyoming, Utah, Colorado, New Mexico, Kansas, and Oklahoma. This can also spread to other circuits.

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Fresh Vision has begun its appeal in Denver. Either in this appeal if it proceeds, or in another appeal another time, the appellate court there would do well to straighten out the misunderstanding.

The Supreme Court could have helped prevent such a misunderstanding when it issued its Anthony List opinion in 2014.

Saying something such as this may have sufficed: “Anthony List presents an easy case on standing. We do not hold that challengers not presenting Anthony List’s facts lack standing. That is not before us. We leave such a question for another day.”

Without such a clarification, the Anthony List opinion has created confusion, and the “at least three factors” language in the Denver-based federal-appellate court ensued.

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When the Supreme Court issued its Anthony List opinion in 2014, Dr. Randy Elf said it would create confusion.

COPYRIGHT (c) 2025 BY RANDY ELF