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IN THE UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
No. 12-3644-----------------------------------------------------------------------
CHRISTOPHER HEDGES,
DANIEL ELLSBERG, JENNIFER BOLEN,NOAM CHOMSKY; ALEXA OBRIEN,
US DAY OF RAGE; KAI WARGALLA,HON. BRIGITTA JONSDOTTIR M.P.,
Plaintiffs,
v.
BARACK OBAMA, individually and as
representative of the UNITED STATES
OF AMERICA; LEON PANETTA,individually and in his capacity as theexecutive and representative of the
DEPARTMENT OF DEFENSE,JOHN McCAIN, JOHN BOEHNER,
HARRY REID, NANCY PELOSI,MITCH McCONNELL, ERIC CANTOR
as representatives of the UNITED STATESOF AMERICA
Defendants.
-----------------------------------------------------------------
PLAINTIFFS-APPELLEES MEMORANDUM OF LAW IN SUPPORT OFMOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF AND ORALARGUMENT AS TO ISSUES ARISING UNDER CLAPPER V. AMNESTY
INTERNATIONAL, No. 111025 (S.Ct. February 26, 2013)
Bruce I. Afran, Esq.10 Braeburn Dr.
Princeton, N.J. 08540609-924-2075
Carl J. Mayer, Esq.
MAYER LAW GROUP LLC1040 Avenue of the Americas, Suite 2400
New York, NY 10018212-382-4686
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ARGUMENT
This motion seeks leave for the parties to file supplemental briefs in the
instant appeal and oral argument with respect to issues arising under the Supreme
Courts determination in Clapper v. Amnesty International, No. 111025 (S.Ct.
February 26, 2013). At oral argument, the hearing panel raised the question of
deferring judgment until the Court could consider how the anticipated decision in
Clapper would impact the issues in the present matter, Hedges v. Obama. As a
result of the change in legal environment following the reversal in Clapper,
fundamental fairness strongly suggests the need for supplemental briefing.
In its Rule 28(j) letter, the government quoted selectively from certain
phrases in Clapper suggesting that the judgment below must be reversed. But the
Rule 28j format, with its limitation of 350 words, is not proper for detailed
discussion of how the Supreme Courts holding in Clapper affects the outcome of
the present appeal; plaintiffs, upon extended study of Clapper, believe
supplemental briefing and additional argument are necessary now that this
Circuits ruling in Clapper is no longer governing law.
Plaintiffs note that the district court did not rely exclusively on this Circuits
decision in Clapper for its standing analysis but placed greater emphasis on the
Supreme Courts conventional First Amendment standing doctrine. Discussion of
1) the interrelationship between conventional and First Amendment overbreadth
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standing, 2) how these relate to the factual record below, 3) the district courts
reference to other standing precedent and 4) the factual differences between
Clapper andHedges v. Obama is beyond the scope of the Rule 28j format and, in
fairness to the gravity of the issues, requires supplemental briefs and argument on
the Clapper issues.
The governments Rule 28j letter states simply that Clapper requires
reversal of the district court ruling. But Clappers factual and legal predicates
differ dramatically from those in the instant appeal and have only superficial
similarities toHedges v. Obama, as the brief discussion below shows.
In Clapper, plaintiffs were lawyers and journalists who contended that
broadened wiretap powers under the FISA Amendments Act (FAA) impermissibly
chilled their own First Amendment interests. Though not directly targeted by the
FAA, the Clapper plaintiffs claimed they would be chilled in their First
Amendment rights for fear of being subject to federal wiretapping when they
interview or counseled the actual wiretap targets. For this reason, the Clapper
plaintiffs sought to declare the FAAs broadened wiretap powers unconstitutional
due to their incidental effect upon plaintiffs journalistic or associational activities.
As the Supreme Court recognized, the Clapper plaintiffs were not the
subjects of the FAA but, instead, were asserting what the Court called an
attenuated form of standing that was, in effect, derivative of the actual wiretap
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subjects who were the intended targets of the FAA. The reversal in Clapper was
predicated in substantial part on the finding that the FAA required the intercession
of an independent court of Article III judges in the form of the FISA court to give
consent to any wiretap order. Thus, the Supreme Court held, there could be no
imminent fear that the FAA could be applied to the Clapper plaintiffs (or anyone
else) since the government could not implement the FAA on its own initiative but
required resort to an independent body of judges whose decisions could not be
predicted.
In contrast, 1021(b)(2) of the NDAA at issue inHedges v. Obama is a self-
executing statute that does not require the government to seek permission of an
independent body before acting under its provisions, a major factual distinction
between the two cases. And unlike Clapper, Congress has mandated no due
process at all under 1021(b)(2) or any rules of procedure as it did with the FAA,
as well as the companion provision in the NDAA - 1022 - that governs foreign
combatants. Consequently, unlike the FAA as construed in Clapper (or 1022 of
the NDAA applying to foreign detentions), 1021(b)(2) does allow the government
to act without any independent assessment of due process considerations or resort
to an independent Article III body. On this basis alone, Clapper is not analogous
toHedges but is factually distinct.
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Plaintiffs in Hedges v. Obama, unlike those in Clapper, are not asserting
standing derivative of the actual targets of the statute, but assert rights that derive
directly from the broad language of 1021(b)(2) embracing anyone who
substantially supports such groups. As the District Court found, plaintiffs in
Hedges v. Obama are within the scope of 1021(b)(2)s detention provisions, as
contrasted with the Clapper plaintiffs who were never the intended targets of the
FISA act and whose relationship to the law was, as the Court found, attenuated.
Such standing issues, as raised in both Clapper and in the district court
below, involve a complex interaction of First Amendment jurisprudence and
conventional standing doctrine; as explained below, following the reversal of
Clapper such issues require additional briefing.
In its Rule 28(j) letter the government relies heavily on language from
Clapper that the threatened injury must be certainly impending to constitute
injury in fact. Clapper, 2013 U.S. LEXIS 1858 at 21 [emphasis added] citing,
inter alia, Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) and DaimlerChrysler
Corp., 547 U.S. 332, 345 (2006). But the phrase certainly impending as used in
Clapper arises out of the Supreme Courts non-First Amendment jurisprudence
where the standard for standing requires a far closer nexus to the threatened harm
than in First Amendment overbreadth cases such as Hedges v. Obama. This
distinction between Hedges and Clapper is seen in the fact that none of the
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decisions cited in Clapper for the certainly impending standard concern a First
Amendment overbreadth case. See Clapper at 11 citing Whitmore and
DaimlerChrysler.
Hedges and Clapper differ in that Hedges concerns a statute embracing
speech within its ambit while Clapper concerned a non-speech enactment
governing wiretap procedures. Unlike NDAA 1021(b)(2), the statute in Clapper
was not directed at speech and any intrusion into the Clapper plaintiffs First
Amendment rights was incidental to the FAA, a statute amending wiretap
authorization procedures but not one whose language brought speech within its
ambit. Since the impact on speech caused by the FAA in Clapper was incidental
at best, it required the stronger conventional standing doctrine associated with non-
speech cases.
In contrast to Clapper, the district court in Hedges found 1021(b)(2) to be
directed, at least in part, at speech, a conclusion the government has not disputed in
this Court. To the contrary, the government acknowledges that 1021(b)(2)s
substantial support language is directed at speech: though the government
suggests that it now views independent speech as outside of the statutes scope,
it contends that other forms of speech, i.e., non-independent speech, are within the
scope of 1021(b)(2) and can lead to detention. Consequently, it is not disputed
that 1021(b)(2) is directed at speech, unlike the FAA in Clapper.
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Moreover, the term support used in section 1021(b)(2), left alone and
without definition, is understood to be a term embracing First Amendment activity.
See e.g. Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 63-64 (1st Cir. 2011)
(noting that terms including support without definition embrace speech activity).
As brought out in oral argument, section 1021(b)(2)s floor manager, Senator
Graham, himself acknowledged on the floor of the Senate that citizens may fear
that the language of 1021 may cause them to be detained by the military for First
Amendment activities. 157 Cong. Rec. S8102-8103. Since 1021(b)(2)
undoubtedly encompasses speech, a finding the government has effectively
conceded, it falls under the relaxed standing requirements governing overbreadth
cases, not the traditional standing of certainly impending harm that governs non-
overbreadth cases such as Clapper and those non-speech decisions the Supreme
Court relied upon in Clapper, i.e.,Hedges,Daimler, et al.
In overbreadth cases, the Supreme Court has repeatedly held that standing is
based on whether the statute can be applied to persons not present before the court,
even where the government claims it will not apply the statute to the plaintiffs
themselves. In recognition that "the First Amendment needs breathing space," the
Supreme Court has relaxed the prudential requirements of standing in the First
Amendment context. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973);
Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 956, 81 L. Ed. 2d
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786, 104 S. Ct. 2839 (1984). Where, as here, plaintiffs raise an overbreadth
challenge to a statute under the First Amendment, standing arises "not because [the
plaintiff's] own rights of free expression are violated, but because of a judicial
prediction or assumption that the [challenged statute's] very existence may cause
others not before the court to refrain from constitutionally protected speech or
expression." Broadrick, 413 U.S. at 612. Clapper does not overrule such well-
established line of precedent.
While the government now suggests having lost the injunction application
- that the plaintiffs will not be detained for so-called independent speech they
have testified to, that claim (weak as it is and never made unreservedly) came only
after the entry of the preliminary injunction. During the trial, the government
asserted that it could give no assurance that plaintiffs would not be detained, JA
138-140, and, hence, regardless of the governments later effort to shift its
position, the plaintiffs standing continues as a ripe matter, since in First
Amendment cases plaintiffs are permitted to assert the rights of third parties not
before the court. See e.g.Eisenstadt v. Baird, 405 U.S. 438 n5 (1972); Thornhill v.
Alabama, 310 U.S. 88, 97-98 (1940). This tradition has a long and continuing
acceptance in the Courts of Appeal. See e.g. Nat'l Org. for Marriage v. McKee,
649 F.3d 34, 47 (1st Cir. 2011).
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Nowhere in Clapper does the Supreme overrule or even address its First
Amendment overbreadth case law in Broadrick and its progeny. Such judicial
silence on this important standing doctrine is recognition that Clapper was not a
First Amendment overbreadth case, as isHedges v. Obama, and that Clapper is not
dispositive of the claims before this Court.
Even if, arguendo, the certainly impending language of Clapper is
deemed to apply to an overbreadth challenge (a conclusion not supported by the
Supreme Courts reliance on non-overbreadth cases in Clapper), the Courts First
Amendment jurisprudence accepts that self-censorship, as has been found by the
District Court here and not disputed by the government, comprises an actual
injury in fact. See e.g. Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393, 108
S. Ct. 636, 98 L. Ed. 2d 782 (1988); see also N.H. Right to Life Political Action
Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) ("[I]t is not necessary that a
person expose herself to arrest or prosecution under a statute in order to challenge
that statute in a federal court."). Nat'l Org. for Marriage v. McKee, 649 F.3d 34 at
47 (The chilling of protected speech may thus alone qualify as a cognizable,
Article III injury.)
Not only is such threatened injury to First Amendment interests an actual
harm, but it comprises irreparable harm, even if only for a short period. See e.g.
Elrod v. Burns, 427 U.S. 347, 373-374 (1976) citing New York Times Co. v.
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United States, 403 U.S. 713 (1971). Judge Forrest, citingElrod, expressly found
that the plaintiffs self-censorship comprised irreparable harm. JA 140. A finding
of injury that meets the irreparable harm test without question also meets the
certainly impending test, even under Clapper.
As this brief discussion shows, the Supreme Courts decision in Clapper
should not bar the relief below but fundamental fairness and the public importance
of these questions require that these substantial and weighty issues be adequately
briefed by the parties and that the parties have the opportunity for argument limited
to the Clapper issues.
Respectfully submitted,
S/Bruce I. Afran S/Carl J. Mayer
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