standing, again

[Janet Alexander]

I inadvertently did not post to the whole list -- my complete comment is 
below.  Responding to Howard's comment, the complaint alleges that the 
plaintiffs also feel chilled.  But there is no third party standing issue, 
which is what I think Howard is suggesting.  The plaintiffs' theory is that 
the government conducts an illegal program whose publicly-acknowledged 
scope would include monitoring plaintiffs' phone conversations and emails 
(because of the types of people they call or subjects they discuss).  The 
risk of being monitored not only chills plaintiffs themselves, but also 
causes plaintiffs' clients/sources/witnesses to refuse to talk on the 
phone, and as a result plaintiffs' ability to pursue their livelihoods is 
"disrupted" and they have to spend money and time to go to foreign 
countries to talk with them in person.  The illegal program violates 
plaintiffs' constitutional and statutory rights, and as a result plaintiffs 
suffer concrete economic injury and are deterred from exercising their 
right to free speech.  Third party standing is not involved.

It is obviously easier for the journalist/scholar/attorney plaintiffs to 
satisfy Lujan-type standing requirements than the ACLU plaintiffs.  This is 
why such suits involve multiple plaintiffs -- to expose to the court the 
various harms inflicted by the allegedly illegal program.


Here is the message that was supposed to go to the list:

The NSA plaintiffs did make a chilling effect argument, but didn't rest 
their standing argument on chilling effect alone.

The plaintiffs ("a group of prominent journalists, scholars, attorneys, and 
national nonprofit organizations") claim, and the govt apparently did not 
dispute, that their sources will not talk on the phone or email because 
they believe the transmissions will be intercepted, that this "disrupt[s] 
the ability of plaintiffs to talk with sources, locate witnesses, conduct 
scholarship, and engage in advocacy," and that they suffer concrete 
economic injury of the classical sort because they have to buy plane 
tickets and spend time and inconvenience to go to foreign countries to talk 
with these sources and witnesses in person.

The plaintiffs include the ACLU and several member organizations, the 
National Association of Criminal Defense Lawyers, Greenpeace, the Council 
on Islamic-American Relations (the largest Islamic civil liberties 
organization in the US), and several award-winning authors and journalists 
who specialize in national security matters, US policy, governance and 
development in the middle east, and conflict and peace, including 
Christopher Hitchens, Prof. Larry Diamond of Stanford, James Bamford, Tara 
McKelvey of the American Prospect, and Prof. Barrett Rubin of NYU.  The 
people they speak with are not just "members of al-Qaeda" as some posts 
have suggested, but include defense lawyers' clients, government officials, 
former Baathists, UN and military personnel, etc.  (Of course, part of what 
a free press and academic scholarship do for us is to find out what even 
foreigners who are not fans of US policy think and do.)

This is not meant to chill discussion of the chilling-effects-alone hypo, 
just a reminder that it is a hypo and not the basis of Judge Taylor's decision.

         Janet Alexander


At 03:17 PM 8/25/2006 -0500, Howard Schweber wrote:
>Janet Alexander wrote,
>
>"The NSA plaintiffs did make a chilling effect argument, but didn't rest 
>their standing argument on chilling effect alone.  The plaintiffs ("a 
>group of prominent journalists, scholars, attorneys, and national 
>nonprofit organizations") claim, and the govt apparently did not dispute, 
>that their sources will not talk on the phone or email because they 
>believe the transmissions will be intercepted, that this "disrupt[s] the 
>ability of plaintiffs to talk with sources, locate witnesses, conduct 
>scholarship, and engage in advocacy," and that they suffer concrete 
>economic injury of the classical sort because they have to buy plane 
>tickets and spend time and inconvenience to go to foreign countries to 
>talk with these sources and witnesses in person."
>
>This represents an interesting shift from speaker to listener.  Because 
>the speaker was chilled, the listener had to travel to hear the speaker's 
>words -- I'm not sure this actually gets around the question.  Certainly 
>there is a right to hear as well as speak.  But would a radio listener 
>have had standing to challenge the fine imposed on George Carlin on the 
>grounds that in order to hear the routine s/he (the listener) now has to 
>buy the album?  (Er, I meant "CD," of course.)  If a group is denied a 
>parade permit, does a would-be parade viewer have standing to sue on the 
>grounds that the new location of the parade is less convenient?
>
>The parties chilled from speaking here are the sources -- who, as Janet 
>correctly observes, include people way past the category of "members of al 
>Qaeda" -- but here the question gets even more complicated than the Laird 
>issue.  Does a potential listener have standing to challenge a law on the 
>basis of its chilling effect on third-party speakers?
>
>Howard Schweber
>

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