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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1812 <br> <br>           RHODE ISLAND ASSOCIATION OF REALTORS, INC., <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>               SHELDON WHITEHOUSE, ATTORNEY GENERAL <br>                  FOR THE STATE OF RHODE ISLAND, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF RHODE ISLAND <br> <br>           [Hon. Ernest C. Torres, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>                 Coffin, Senior Circuit Judge, <br>                                 <br>                   and Boudin, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>     Rebecca Tedford Partington, Asst. Attorney General, with whom <br>Brenda A. Doyle, Special Asst. Attorney General, was on brief, for <br>appellant. <br>     Mark W. Freel, American Civil Liberties Union, Rhode Island <br>Affiliate, for appellee. <br> <br> <br> <br> <br> <br>December 14, 1999 <br> <br> <br> <br>                                 <br>  SELYA, Circuit Judge.  Certain public records in Rhode <br>Island are available upon request but come with strings attached.  <br>This case concerns one of those strings:  the prohibition on using <br>records so obtained for commercial solicitation.  See R.I. Gen. <br>Laws  38-2-6.  Responding to a petition for declaratory and <br>injunctive relief filed by the Rhode Island Association of Realtors <br>(the Association), the district court granted the requested <br>remedies, ruling that the operation of the statute abridged the <br>Association's right to free expression.  See Rhode Island Ass'n of <br>Realtors v. Whitehouse, 51 F. Supp. 2d 107 (D.R.I. 1999) [RIAR].  <br>The Rhode Island Attorney General appeals, insisting that the <br>Association lacks standing to challenge the law.  We affirm. <br>I.  BACKGROUND <br>  In accordance with the conventional summary judgment <br>standard, we limn the facts in the light most favorable to the <br>Attorney General, indulging all reasonable inferences in his favor.  <br>See Coyne v. Taber Partners I, 53 F.3d 454, 456 (1st Cir. 1995). <br>  The Association is a trade group that represents licensed <br>real estate agents and brokers.  Pursuant to the Access to Public <br>Records Act, R.I. Gen. Laws  38-2-1 to -15 (the Act), the <br>Association asked for and obtained from the Department of Business <br>Regulation (DBR) information concerning the identities of persons <br>to whom real estate licenses recently had been issued.  The <br>Association wishes to use these data to recruit new dues-paying <br>members but thus far has refrained from soliciting the listed <br>license-holders because it fears prosecution under R.I. Gen. Laws <br> 38-2-6. <br>  First enacted in 1979, the statute provides: <br>    Commercial use of public records.   No person <br>  or business entity shall use information <br>  obtained from public records pursuant to this <br>  chapter to solicit for commercial purposes or <br>  to obtain a commercial advantage over the <br>  party furnishing that information to the <br>  public body.  Anyone who knowingly and <br>  willfully violates the provision of this <br>  section shall, in addition to any civil <br>  liability, be punished by a fine of not more <br>  than five hundred dollars ($500) and/or <br>  imprisonment for no longer than one year. <br> <br>R.I. Gen. Laws  38-2-6.  When the Association requested the <br>license information, DBR made it aware of potential criminal <br>penalties under the Act.  Although no person has ever been charged <br>criminally under section 38-2-6, the Attorney General has never <br>disclaimed it, and a related provision, section 38-2-8, requires <br>the Attorney General to investigate and, when appropriate, to <br>prosecute violations. <br>  As a matter of longstanding policy, the Attorney General <br>does not issue advisory opinions to private parties, so that option <br>was not open to the Association.  The  Attorney General sometimes <br>furnishes such opinions to public entities on questions of state <br>law, see id.  42-9-6, but he has never promulgated an opinion <br>anent the scope of section 38-2-6.  He has, however, issued at <br>least one opinion to a state college touching upon the subject <br>matter.  See R.I. Att'y Gen. Unofficial Op. No. PR94-06 (Apr. 21, <br>1994) (discussed infra). <br>  Reluctant either to execute or to abandon its <br>contemplated deployment of the information gleaned from DBR, and <br>seeing no other way of resolving the issue, the Association sued.  <br>Invoking 42 U.S.C.  1983 and the First and Fourteenth Amendments, <br>it asked the federal district court to declare section 38-2-6 <br>unconstitutional as violative of the free-speech rights of the <br>Association, its members, and Rhode Island real estate licensees in <br>general, and to enjoin the then-Attorney General, Jeffrey Pine, <br>from enforcing the ban on commercial solicitation. <br>  Attorney General Pine moved to dismiss the complaint.  He <br>contended that it showed neither a sufficiently definite plan to <br>engage in conduct that would transgress section 38-2-6 nor a <br>sufficiently imminent threat of prosecution.  The Association <br>objected to this motion and in due course filed a cross-motion for <br>summary judgment.  In opposition, the Attorney General confined his <br>argument to the threshold question of justiciability:  he <br>embellished both of the contentions delineated in the motion to <br>dismiss, suggested that the court should defer to his <br>interpretation of the challenged law, and alleged a lack of state <br>action sufficient to support a claim under 42 U.S.C.  1983.  The <br>Association filed a rejoinder, which included a supporting <br>affidavit. <br>  The matter lay fallow for several months.  Attorney <br>General Pine did not seek reelection.  In November 1998, the voters <br>chose Sheldon Whitehouse to succeed him.  Whitehouse took office on <br>January 5, 1999, and was substituted as the named defendant in this <br>suit.  See Fed. R. Civ. P. 25(d)(1).  In June, the district court <br>granted the Association's motion for summary judgment.  See RIAR, <br>51 F. Supp. 2d at 114.  This appeal followed.  Up to that point, <br>Attorney General Whitehouse had not expressed an opinion as to <br>either the constitutionality of section 38-2-6 or its applicability <br>to the Association's proposed course of action. <br>II.  ANALYSIS <br>  On appeal, the Attorney General does not challenge the <br>district court's determination that section 38-2-6 is <br>unconstitutional to the extent that it "prohibits the use of public <br>information 'to solicit for commercial purposes.'"  RIAR, 51 F. <br>Supp. 2d at 114 (quoting statute).  We must therefore accept that <br>determination unless we find that the Attorney General is correct <br>in his thesis that the district court should not have heard the <br>case. <br>  The Attorney General grounds this position mainly on a <br>theory that the Association lacked "standing" to pursue its quest <br>for declaratory and injunctive relief.  But he uses this term <br>loosely, in a way that brings to mind a panoply of related <br>concepts:  standing, ripeness, and mootness.  We address these <br>justiciability concerns separately and then treat the Attorney <br>General's assertion that the lower court lacked subject-matter <br>jurisdiction because the operation of section 38-2-6 does not <br>involve state action.  Consistent with the summary judgment <br>standard, we afford plenary review.  See Coyne, 53 F.3d at 456. <br>                          A.  Standing. <br>  Inasmuch as the Attorney General couches his <br>justiciability concerns in terms of standing, we start there.  Like <br>all justiciability doctrines, standing is a necessary concomitant <br>to the court's power to adjudicate a case.  See Warth v. Seldin, <br>422 U.S. 490, 498 (1975); United States v. AVX Corp., 962 F.2d 108, <br>113 (1st Cir. 1992).  Despite its importance, the doctrine remains <br>"a morass of imprecision."  New Hampshire Right to Life Political <br>Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996).  We know, <br>however, that standing encompasses both "constitutional <br>requirements and prudential considerations," Valley Forge Christian <br>College v. Americans United for Separation of Church and State, <br>Inc., 454 U.S. 464, 471 (1982), and that the former derive from <br>Article III's admonition that a federal court may decide only <br>actual "Cases" and "Controversies," U.S. Const. art. III,  2.  <br>Here, the Attorney General frames his objection in constitutional <br>terms and, in all events, it is unnecessary to address separately <br>prudential considerations.  See Berner v. Delahanty, 129 F.3d 20, <br>24 (1st Cir. 1997) ("[A] realistic risk of future exposure to [a] <br>challenged policy . . . is sufficient to satisfy not only the <br>standing requirements that Article III imposes, but also the <br>prudential concerns that sometimes trouble courts."), cert. denied, <br>523 U.S. 1023 (1998). <br>  The burden of establishing standing rests with the party <br>who invokes federal jurisdiction.  See Bennett v. Spear, 520 U.S. <br>154, 167-68 (1997).  Accordingly, the Association must show that <br>(1) it personally has suffered some actual or threatened injury, <br>(2) the injury fairly can be traced to the challenged conduct, and <br>(3) a favorable decision likely will redress it.  See Valley Forge, <br>454 U.S. at 472; Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st <br>Cir. 1993). <br>  Neither the second nor the third of these showings has <br>independent significance in this instance.  To the extent that the <br>Association had suffered a cognizable injury at the time of filing <br>  a matter which we discuss below   that injury can be traced <br>directly to the looming enforcement of section 38-2-6 and can be <br>fully redressed by declaratory and injunctive relief.  See New <br>Hampshire Right to Life, 99 F.3d at 13.  Thus, the lens of our <br>inquiry narrows to the existence vel non of an actual or threatened <br>injury. <br>  Although inquiries of this sort are both context- <br>contingent and situation-specific, the case law furnishes some <br>guideposts.  Generally speaking, a "conflict between state <br>officials empowered to enforce a law and private parties subject to <br>prosecution under that law is a classic 'case' or 'controversy' <br>within the meaning of Art. III.'"  Diamond v. Charles, 476 U.S. 54, <br>64 (1986).  Moreover, a private party need not "first expose <br>himself to actual arrest or prosecution to be entitled to challenge <br>a statute that he claims deters the exercise of his constitutional <br>rights."  Steffel v. Thompson, 415 U.S. 452, 459 (1974).  Because <br>it ordinarily will be too late to obtain a federal forum once the <br>state has initiated criminal proceedings, see Younger v. Harris, <br>401 U.S. 37, 41 (1971), persons who are confronted by criminal laws <br>of questionable constitutionality should be afforded recourse to <br>the federal courts as soon as state sanctions have been threatened.  <br>See ACLU v. Florida Bar, 999 F.2d 1486, 1493 (11th Cir. 1993).  The <br>threat, however, must be credible.  See New Hampshire Right to <br>Life, 99 F.3d at 14.  Therein lies the rub. <br>  We have framed the applicable rule in the following way: <br>    In a pre-enforcement challenge to a statute <br>  carrying criminal penalties, standing exists <br>  when "the plaintiff has alleged an intention <br>  to engage in a course of conduct arguably <br>  affected with a constitutional interest, but <br>  proscribed by [the] statute, and there exists <br>  a credible threat of prosecution." <br> <br>Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. <br>289, 298 (1979)).  In practice, it is often difficult to <br>distinguish between fears that are chimerical and those that are <br>realistic.  The best that we have been able to do is to insist <br>that, in these purlieus, standing requires an "objectively <br>reasonable" fear of prosecution.  Id.; see also Laird v. Tatum, 408 <br>U.S. 1, 13-14 (1972) (stating that "[a]llegations of a subjective <br>'chill' [produced by government intelligence-gathering] are not an <br>adequate substitute for a claim of specific present objective harm <br>or a threat of specific future harm").  Determining objective <br>reasonableness demands a frank consideration of the totality of the <br>circumstances, including the nature of the conduct that a <br>particular statute proscribes.  See New Hampshire Right to Life, 99 <br>F.3d at 16; cf. Camilo-Robles v. Zapata, 175 F.3d 41, 43 (1st Cir. <br>1999) (holding that reasonableness for qualified immunity purposes <br>requires "an objective inquiry into the totality of the <br>circumstances"). <br>  Here, the Association intends to solicit new members   an <br>activity protected by the First Amendment, see Innovative Database <br>Sys. v. Morales, 990 F.2d 217, 220-22 (5th Cir. 1993)   so the <br>"intention to engage" element is established.  So, too, the <br>proscription element, because the plain language of section 38-2-6 <br>pretermits commercial solicitation.  Thus, the pivotal question <br>reduces to whether the Association faced a credible threat of <br>prosecution when it filed suit.  Our search for an answer takes <br>place against a background understanding that when First Amendment <br>values are at risk, courts must be especially sensitive to the <br>danger of self-censorship.  See Virginia v. American Booksellers <br>Ass'n, 484 U.S. 383, 393 (1988); Meese v. Keene, 481 U.S. 465, 473 <br>(1987). <br>  We recently canvassed much of the relevant case law, see <br>New Hampshire Right to Life, 99 F.3d at 14-15, and it would be <br>pleonastic to rehearse it here.  We reiterate only the bottom line:  <br>"when dealing with pre-enforcement challenges to recently enacted <br>(or, at least, non-moribund) statutes that facially restrict <br>expressive activity by the class to which the plaintiff belongs, <br>courts will assume a credible threat of prosecution in the absence <br>of compelling contrary evidence."  Id. at 15; accord North Carolina <br>Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999) <br>(quoting from this passage), petition for cert. filed, ___ U.S.L.W. <br>___ (U.S. May 18, 1999) (No. 98-1887); Commodity Trend Serv. v. <br>CFTC, 149 F.3d 679, 687 (7th Cir. 1998) (same); see also Wilson v. <br>State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998) (agreeing <br>"with the First Circuit's admonition that the credible threat of <br>prosecution standard 'is quite forgiving'" in the First Amendment <br>context) (citing New Hampshire Right to Life, 99 F.3d at 14). <br>  Several factors indicate a credible threat of prosecution <br>here.  Section 38-2-6 is regulatory in nature, prohibits precisely <br>the conduct that the Association wishes to undertake, and sets <br>severe sanctions for noncompliance.  Although the Attorney General <br>questions the second of these assumptions, there is simply no <br>plausible way to read the statutory text so that it exonerates the <br>Association's proposed solicitation. <br>  This conclusion is buttressed by the circumstances.  For <br>one thing, the Association was specifically informed about the <br>existence of section 38-2-6 when it obtained the names of real <br>estate licensees from DBR.  The clear implication of this direct <br>monition, particularly when coupled with the unambiguous language <br>of the statute itself, was that the commercial use of these records <br>was foreclosed and that transgressions would not go unpunished.  <br>For another thing, the Attorney General had issued no statement <br>interpreting the statute to mean anything other than what its plain <br>language portends.  To the contrary, in response to a request from <br>Rhode Island College a few years previously, the Attorney General <br>had opined that although the college could not condition the <br>release of records upon recipients' certifying that they would not <br>use the records to solicit for commercial purposes, it could <br>require recipients to acknowledge their awareness of the commercial <br>use prohibition contained in section 38-2-6.  See R.I. Att'y Gen. <br>Unofficial Op. No. PR94-06. <br>  The precise wording of this portion of the opinion is <br>revealing.  After reprinting section 38-2-6 in full, the Attorney <br>General states that "[i]f the College or any other individual <br>entity learns that the information is in fact being used in <br>contravention of the Act, the College may then notify the Attorney <br>General, who will then take the appropriate course of action as <br>provided for in Section 38-2-6 of the Act."  Id. at 2.  This <br>statement sent a clear message that, in April of 1994, the Attorney <br>General deemed section 38-2-6 to be alive and well.  Thus, the <br>Attorney General, far from eschewing enforcement, placed an <br>imprimatur upon the provision barring the use of public records for <br>commercial solicitation. <br>  To sum up, by obtaining the names of new licensees from <br>DBR, the Association took a significant first step along a path <br>blocked by the statutory proscription.  Its interest was manifest <br>and the parameters of the activity that it proposed to undertake <br>were discrete and well-defined.  Inasmuch as the statute appeared <br>to cover that activity, we believe it was reasonable for the <br>Association to infer under all the circumstances that a real <br>possibility of prosecution awaited if it decided to proceed.  This <br>is no hypothetical case; the Association had standing when it filed <br>suit because a sufficiently imminent threat of injury loomed. <br>  We add a coda.  In resisting this conclusion, the <br>Attorney General relies heavily on the fact that the state has <br>never pursued criminal charges under section 38-2-6.  His argument <br>has two flaws.  First, the record contains no realistic basis for <br>a suggestion that the statutory provision, enacted only twenty <br>years ago, has fallen into desuetude.  Second, predicting the <br>future from the past is perilous business.  There are a minimum of <br>three possible explanations for a history of nonenforcement:  a <br>statutory prohibition may have proven to be an effective deterrent, <br>or the proscribed behavior may be difficult to detect, or the state <br>may have decided not to enforce the statute.  The threat of future <br>prosecution varies depending on which of these theories most likely <br>accounts for the historical pattern. <br>  We consider the possibilities in reverse order.  Given <br>the Attorney General's advisory opinion to Rhode Island College and <br>the warning the Association received from DBR, it hardly can be <br>said that the state had disavowed enforcement of section 38-2-6.  <br>By like token, there is nothing in the record to suggest that <br>commercial solicitation somehow flies below law enforcement radar.  <br>Here, then, the first explanation seems by far the most plausible, <br>especially since the Association provides uncontradicted affidavit <br>support for the proposition that section 38-2-6 acts as a <br>deterrent.  In view of the pellucid language of the statute and the <br>warnings that it would be enforced, it is not illogical to assume <br>that this phenomenon probably accounts for the absence of prior <br>prosecutions. <br>  In all events, the Supreme Court repeatedly has found <br>standing to mount pre-enforcement challenges to laws that had never <br>been enforced.  See, e.g., United Farm Workers, 442 U.S. at 302; <br>Doe v. Bolton, 410 U.S. 179, 188 (1973).  We emulate these <br>examples.  It would be little short of perverse to deny a party <br>standing because the statute she challenges is so potent that no <br>one dares violate it, especially when the result is widespread <br>self-censorship.  See American Booksellers, 484 U.S. at 393. <br>                          B.  Ripeness. <br>  If standing is a question of who, then ripeness   which <br>shares standing's constitutional and prudential pedigree, see <br>Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 242-44 (1952)   is <br>a question of when.  Its basic function is "to prevent the courts, <br>through avoidance of premature adjudication, from entangling <br>themselves in abstract disagreements."  Abbott Labs. v. Gardner, <br>387 U.S. 136, 148 (1967).  To determine whether a case is ripe for <br>review, a federal court must evaluate the fitness of the issue <br>presented and the hardship that withholding immediate judicial <br>consideration will work.  See id. at 149.  Thus, the plaintiff must <br>adduce facts sufficient to establish both fitness and hardship.  <br>See Ernst & Young v. Depositors Econ. Protection Corp., 45 F.3d <br>530, 535 (1st Cir. 1995).  These concepts are related but distinct:  <br>fitness "typically involves subsidiary queries concerning finality, <br>definiteness, and the extent to which resolution of the challenge <br>depends upon facts that may not yet be sufficiently developed," <br>whereas hardship "typically turns upon whether the challenged <br>action creates a direct and immediate dilemma for the parties."  <br>Id. (citations and internal quotation marks omitted). <br>  As these preliminaries indicate, standing and ripeness <br>may substantially overlap.  The imbrication is nowhere more <br>apparent than in pre-enforcement challenges.  The existence vel non <br>of a credible threat of prosecution, critical to the injury-in-fact <br>requirement for standing, factors into both branches of the <br>ripeness equation.  This is as it should be, for the reasonableness <br>of the fear of enforcement is at the core of both standing and <br>ripeness.  See Adult Video Ass'n v. Barr, 960 F.2d 781, 786 (9th <br>Cir. 1992) ("Our conclusion that a reasonable threat of prosecution <br>exists, for purposes of standing, effectively dispenses with any <br>ripeness problem."), vacated, 509 U.S. 917 (1993), reinstated in <br>relevant part, 41 F.3d 503 (9th Cir. 1994); see also Socialist <br>Workers Party v. Leahy, 145 F.3d 1240, 1244-45 (11th Cir. 1998) <br>(considering ripeness and standing together in respect to a pre- <br>enforcement challenge). <br>  Despite this overlap, we assume, favorably to the <br>Attorney General, that both standing and ripeness are contested <br>here.  To establish ripeness in a pre-enforcement context, a party <br>must have concrete plans to engage immediately (or nearly so) in an <br>arguably proscribed activity.  This gives a precise shape to <br>disobedience, posing a specific legal question fit for judicial <br>review.  A showing that the challenged statute, fairly read, <br>thwarts implementation of the plan adds the element of hardship. <br>  Applying these general precepts, we have little <br>difficulty in concluding that the Association's claim was ripe when <br>filed.  This is not a case of statutory ambiguity but, rather, one <br>that presents a single, purely legal question:  Does Rhode Island's <br>prohibition on using public records for commercial solicitation <br>unconstitutionally restrain free expression?  The Association has <br>described a concrete plan to recruit new members   an activity <br>plainly proscribed by the text of section 38-2-6   and no one has <br>suggested any valid reason why resolution of the apparent conflict <br>should await further factual development.  Since the controversy <br>was well-defined and amenable to complete and final resolution, it <br>was fit for judicial review. <br>  Similarly, the Association refrained from carrying <br>forward its plan because it reasonably feared prosecution under <br>section 38-2-6.  The Association thus faced the "direct and <br>immediate dilemma," W.R. Grace & Co. v. EPA, 959 F.2d 360, 364 (1st <br>Cir. 1992), of choosing between "the Scylla of intentionally <br>flouting state law and the Charybdis of forgoing what [it] <br>believe[d] to be constitutionally protected activity," Steffel, 415 <br>U.S. at 462.  Because lost opportunities for expression cannot be <br>retrieved, delaying or denying resolution of the issue would have <br>worked a substantial hardship.  See Duke Power Co. v. Carolina <br>Envt'l Study Group, Inc., 438 U.S. 59, 82 (1978). <br>                          C.  Mootness. <br>  "The rule in federal cases is that an actual controversy <br>must be extant at all stages of review, not merely at the time the <br>complaint is filed."  Steffel, 415 U.S. at 459 n.10.  Building on <br>this foundation, the current Attorney General argues that certain <br>representations made by him and his predecessor after service of <br>the Association's complaint defused the controversy.  Although the <br>Attorney General makes this argument under the heading of standing, <br>it is really an argument for mootness   but not a winning one. <br>  Mootness derives from the same constitutional and <br>prudential concerns as standing and ripeness.  What distinguishes <br>mootness is its focus on ongoing events.  Even if a justiciable <br>controversy exists when litigation begins, Article III requires a <br>federal court to depart the field if the controversy later abates, <br>that is, if ongoing events have wiped the slate clean or changed <br>the topography so that the court's opinion would be purely <br>advisory.  See County of Los Angeles v. Davis, 440 U.S. 625, 631 <br>(1979); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 <br>(1937); see also Powell v. McCormack, 395 U.S. 486, 496 (1969) <br>(explaining that a case becomes moot "when the issues presented are <br>no longer 'live' or the parties lack a legally cognizable interest <br>in the outcome"). <br>  In contrast to standing, the burden of establishing <br>mootness rests on the party raising the issue.  See Davis, 440 U.S. <br>at 631; New York State Nat'l Org. for Women v. Terry, 159 F.3d 86, <br>91 (2d Cir. 1998), cert. denied, 119 S. Ct. 2336 (1999).  This <br>burden is heavy.  See United States v. W.T. Grant Co., 345 U.S. <br>629, 633 (1953).  In an effort to sustain it, the Attorney General <br>points to several statements indicating, with varying degrees of <br>certitude, that the Association's planned activity falls outside <br>the scope of section 38-2-6.  We examine those statements. <br>  In the memorandum that accompanied his motion to dismiss, <br>Attorney General Pine admitted that the Association alleged an <br>intent to use licensee information "to solicit new members," but <br>asserted without amplification that this activity could not be <br>regarded as "a solicitation for a commercial purpose."  He <br>moderated his stance somewhat in his objection to the Association's <br>summary judgment motion, asserting that its proposal did "not <br>appear to allege a violation of  38-2-6."  Chiming the same note, <br>his successor states in his appellate brief that the Association's <br>proposed course of action "does not appear to fall within the <br>parameters of the commercial use prohibition."  We do not believe <br>that these statements render the controversy moot. <br>  On its face, section 38-2-6 bars the use of public <br>records obtained under the Act to solicit for a commercial purpose.  <br>This is exactly what the Association intends to do.  The Attorney <br>General has been careful not to concede that section 38-2-6 is <br>unconstitutional, and he has told at least one state agency (Rhode <br>Island College) that it will be enforced.  Against this backdrop, <br>the Attorney General must proffer more than a conclusory assertion <br>of inapplicability to convince us that the Association no longer <br>faces a credible threat of prosecution.  See Abbott Labs., 387 U.S. <br>at 154 (rejecting Justice Department's conclusory representation, <br>made after commencement of suit, as insufficient to render action <br>moot); cf. Dombrowski v. Pfister, 380 U.S. 479, 494 (1965) ("So <br>long as the statute remains available to the State the threat of <br>prosecutions of protected expression is a real and substantial <br>one."). <br>  The Attorney General directs us to a line of cases that <br>consider the authoritative interpretations of local officials in <br>assessing facial overbreadth challenges.  See, e.g., Forsyth County <br>v. Nationalist Movement, 505 U.S. 123, 131 (1992); Ward v. Rock <br>Against Racism, 491 U.S. 781, 795-96 (1989); City of Lakewood v. <br>Plain Dealer Publ'g Co., 486 U.S. 750, 770 n.11 (1988); Gooding v. <br>Wilson, 405 U.S. 518, 524-28 (1972).  These cases provide him <br>precious little comfort.  The instant statute is unambiguous and, <br>therefore, not readily susceptible to a narrowing construction.  <br>Moreover, the cautious phrasing of the Attorney General's <br>statements (e.g., "does not appear") is a far cry from a flat <br>commitment not to prosecute in this particular instance.  See <br>Wilson v. Stocker, 819 F.2d 943, 947 & n.3 (10th Cir. 1987) <br>(finding a credible threat of prosecution notwithstanding the <br>Attorney General's affidavit which stated that "he did not <br>presently believe the [plaintiff's] proposed conduct . . . was <br>prohibited by the statute").  Nor can the Attorney General's <br>litigation position be viewed as "authoritative," given his guarded <br>language and his office's longstanding policy against issuing <br>advisory opinions to private parties. <br>  Finally, and perhaps most telling, the Attorney General <br>has not furnished any plausible explanation for the suggestion that <br>the Association's planned enterprise somehow eludes the <br>proscription contained in section 38-2-6.  Cf. Wulp v. Corcoran, <br>454 F.2d 826, 830 (1st Cir. 1972) (finding standing where the <br>plaintiffs' "challenge involve[d] facial unconstitutionality <br>without the possibility of a limiting construction that would allow <br>the core of the ordinance to be upheld as constitutional"). For <br>this reason, the representations furnish no guidance for applying <br>the statute to future cases.  Even were these representations <br>unequivocal (and they are not), to allow the government to render <br>a pre-enforcement challenge to an unambiguous state statute moot <br>simply by declaring a case-specific amnesty would effectively <br>insulate unconstitutional state statutes from pre-enforcement <br>review.  This is simply not the law.  See Plain Dealer Publ'g, 486 <br>U.S. at 770 n.11. <br>  A good illustration of how these principles ought to work <br>can be found in North Carolina Right to Life, 168 F.3d 705.  There, <br>the plaintiffs brought a pre-enforcement challenge against a <br>statute that on its face constrained the planned distribution of <br>voter guides.  See id. at 710.  In 25 years, the statutory <br>provisions had never been interpreted to cover issue advocacy of <br>this kind.  See id.  Consistent with this understanding, the state <br>defendants, including the attorney general, took the position that <br>the challenged sections did not apply to issue advocacy.  See id.  <br>The Fourth Circuit nonetheless found a justiciable controversy <br>because "the only thing standing in the way of a criminal <br>prosecution is the State's litigation position that it will <br>voluntarily refrain from enforcing the statute according to its <br>plain language."  Id. at 711.  This reasoning is equally applicable <br>to the case at bar. <br>  Let us be perfectly clear.  Even when state officials <br>fail to offer an authoritative interpretation of a state statute, <br>a federal court considering a pre-enforcement challenge sometimes <br>will presume a narrowing construction to which the law is fairly <br>susceptible.  See Plain Dealer Publ'g, 486 U.S. at 770 n.11.  In <br>this case, however, we discern no plausible narrowing construction <br>  and the Attorney General has pointed to none.  Because construing <br>the statute to exempt the Association's planned activity requires <br>discarding wholesale the prohibition on commercial solicitation, <br>the only practical way for the Attorney General to assuage a <br>reasonable fear of prosecution would be to disclaim, in categorical <br>terms, any intent to enforce the prohibition on commercial <br>solicitation.  See Navegar, Inc. v. United States, 103 F.3d 994, <br>1000 (D.C. Cir. 1997) ("Because it is clear to whom these <br>provisions of the Act would be applied were they to be applied at <br>all, the imminent threat of such prosecutions can be deemed <br>speculative only if it is likely that the government may simply <br>decline to enforce these provisions at all."); New Mexicans for <br>Bill Richardson v. Gonzales, 64 F.3d 1495, 1502 (10th Cir. 1995) <br>(permitting case to proceed because state had "not affirmatively <br>disavowed any intention of bringing criminal prosecution" under the <br>challenged statute); see also Hallandale Prof. Fire Fighters Local <br>2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991) <br>(finding a justiciable controversy when "[a]ll that remained <br>between the plaintiff and the impending harm was the defendant's <br>discretionary decision   which could be changed   to withhold <br>prosecution"). <br>                        D.  State Action. <br>  We turn now to the Attorney General's last argument.  His <br>premise   that a section 1983 suit necessitates a showing of state <br>action   is sound.  After all, the public/private dichotomy which <br>distinguishes between state action and private conduct remains a <br>staple of our constitutional jurisprudence.  See Perkins v. <br>Londonderry Basketball Club, ___ F.3d ___, ___ (1st Cir. 1999) [No. <br>99-1385, slip op. at 6-7].  Consequently, state action is an <br>indispensable ingredient of a suit which (like this one) raises a <br>section 1983 claim predicated on an abridgement of First Amendment <br>rights.  See Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978); <br>Rodrguez-Garca v. Dvila, 904 F.2d 90, 94 (1st Cir. 1990). <br>  Citing Tulsa Prof. Collection Servs. v. Pope, 485 U.S. <br>478 (1988), the Attorney General argues that the scenario presented <br>here encompasses insufficient state action to support a section <br>1983 claim.  This argument fails. <br>  In Tulsa Prof., the Court held that the operation of a <br>two-month limitation period for the presentation of contract claims <br>in probate proceedings embodies state action.  See id. at 488.  The <br>Justices said that the involvement of the probate court throughout <br>the process distinguished this nonclaim statute from self-executing <br>statutes of limitations, the enactment and running of which do not <br>implicate state action.  See id. at 486-87.  In the Attorney <br>General's view, section 38-2-6 is more akin to a self-executing <br>statute of limitations than to a probate nonclaim statute (and, <br>thus, does not involve state action).  We disagree. <br>  A substantive criminal provision carries a threat of <br>state action quite unlike a limitation period.  Section 38-2-6 is <br>such a law; it prohibits conduct and bears criminal sanctions.  The <br>penalties attending a violation of section 38-2-6 obviously depend <br>on the state mounting a prosecution, so the provision cannot be <br>described as "self-executing."  Furthermore, the Association <br>challenges not the mere enactment of section 38-2-6, but the <br>combination of the section's proscriptive language and the credible <br>threat that the state will enforce it.  Consequently, there is <br>ample state action to support the use of 42 U.S.C.  1983 as a <br>vehicle for the Association's challenge.  See, e.g., Lugar v. <br>Edmondson Oil Co., 457 U.S. 922, 937 (1982) (stating that an <br>alleged constitutional deprivation caused "by a rule of conduct <br>imposed by the State" can satisfy the state action requirement). <br>III.  CONCLUSION <br>  We need go no further.  At the moment of this action's <br>conception, the Association had standing to challenge the <br>commercial solicitation provision of R.I. Gen. Laws  38-2-6, and <br>it properly employed 42 U.S.C.  1983 as a means to that end.  The <br>Association's claim was ripe then and is not moot now.  <br>Accordingly, we reject the Attorney General's plea of <br>nonjusticiability and affirm the judgment below. <br> <br>Affirmed.</pre>

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