Case Details


Attorney General's Threat To Refer Information To Local Prosecutors Was Enough To Show "case Or Controversy" In Challenge On First Amendment Grounds.

Filing State



U.S. Court of Appeals for the Ninth Circuit




Culinary Workers v. Del Papa, 200 F.3d 614 (9th Cir. 1999)


Even though attorney general had no power to prosecute violations of a certain statute, the statement that she would refer the matter to local prosecutors was enough to show a “threat of prosecution” which was an unconstitutional violation of the First Amendment.

Case Description

A union in a labor dispute distributed handbills criticizing the management and performance of the Commercial Bank of Nevada. Nevada statutes provide that anyone who makes any statement which is directly or by inference derogatory to the financial condition, or affects the financial standing of a bank is guilty of a gross misdemeanor and may be fined or imprisoned. The attorney general sent a letter to the Union stating that one of their handbills violated this statute and that if the union continued to make such statements, the Attorney General’s office would “refer that information to local criminal authorities for appropriate action as well as take appropriate action on behalf of the Nevada Department of Business and Industry.” The union sued the Attorney General for declaratory and injunctive relief, claiming that the statute is an unconstitutional restraint on free speech, both on its face and as applied. The Attorney General argued that there was no “case or controversy” because only local prosecutors, not the Attorney General, have the power to prosecute violations. The Ninth Circuit stated the question presented as “whether the Attorney General’s claim that she lacks authority to carry out her threat renders this pre-enforcement action nonjusticiable.” Although the parties disagreed as to whether the Attorney General has the power to prosecute such violations, all that is necessary is that the party be “threatened with prosecution.”