hedges second circuit motion for supplemental briefing

7/29/2019 Hedges Second Circuit Motion for Supplemental Briefing

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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

Case: 12-3176 Document: 229-2 Page: 1 03/22/2013 886049 10


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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


hedges second circuit motion for supplemental briefing

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