Cite as: 528 U. S. 32 (1999)
Scalia, J., concurring
challenges. No threat of prosecution, for example, see Gooding, or cutoff of funds, see NEA, hangs over their heads. They may seek access under the statute on their own just as respondent did, without incurring any burden other than the prospect that their request will be denied. Resort to a facial challenge here is not warranted because there is "[no] possibility that protected speech will be muted." Bates v. State Bar of Ariz., 433 U. S. 350, 380 (1977).
The Court of Appeals was therefore wrong to facially invalidate § 6254(f)(3). Respondent urges several grounds as alternative bases for affirmance, but none of them were passed on by the Court of Appeals and they will remain open on remand if properly presented and preserved there.
The judgment of the Court of Appeals is accordingly
Reversed.
Justice Scalia, with whom Justice Thomas joins, concurring.
I join the Court's opinion because I agree that, insofar as this case presents a facial challenge to the statute, the fact that it is formally nothing but a restriction upon access to government information is determinative. As the Court says, that fact eliminates any "chill" upon speech that would allow a plaintiff to complain about the application of the statute to someone other than himself.
I understand the Court's opinion as not addressing the as-applied challenge to the statute, and as leaving that question open upon remand. That seems to me a permissible course, since the Court of Appeals' judgment here affirmed without qualification the judgment of the District Court, which rested exclusively upon the facial unconstitutionality of the statute and hence purported to invalidate it in all its applications. Though there are portions of the Court of Appeals' opinion that address the particular circumstances of this respondent, I do not read it as narrowing the facial invalida-
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