upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. Dombrowski, 380 U.S. at 486-87, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); see also Ash- croft a ACLU, 642 U.S. 656, 670-71, 124 S.Ct. 2788, 159 L.Ed2d 690 (2004) (