American Civil Liberties Union v. National Security Agency
AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
AMERICAN CIVIL LIBERTIES UNION, et al., Plaintifs-Appellees/Cross-Appellants,
v.
NATIONAL SECURITY AGENCY, et al., Defendants-Appellants/Cross-Appellees.
United States Court of Appeals, Sixth Circuit.
*645 *646 *647 ARGUED: Gregory G. Garre, United States Department of Justice, Washington, *648 D.C., for Appellants. Ann Beeson, American Civil Liberties Union Foundation, New York, New York, for Appellees. ON BRIEF: Gregory G. Garre, Thomas M. Bondy, Douglas N. Letter, Anthony A. Yang, United States Department of Justice, Washington, D.C., for Appellants. Ann Beeson, Jameel Jaffer, Melissa Goodman, American Civil Liberties Union Foundation, New York, New York, Michael J. Steinberg, Kary L. Moss, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Randal L. Gainer, Davis Wright Tremaine LLP, Seattle, Washington, for Appellees. Andrew G. McBride, Wiley Rein LLP, Washington, D.C., Paul D. Kamenar, Washington Legal Foundation, Washington, D.C., Paul J. Orfanedes, Meredith L. DiLiberto, Judicial Watch, Inc., Washington, D.C., John C. Eastman, Chapman University School of Law, Orange, California, Jay A. Sekulow, American Center for Law and Justice, Washington, D.C., Larry J. Saylor, Saul A. Green, Miller, Canfield, Paddock & Stone, Detroit, Michigan, Association of the Bar of the City of New York, Donald B. Verrilli Jr., Jenner & Block, Washington, D.C., Kathleen M. Sullivan, Stanford Law School, Stanford, California, Lucy A. Dalglish, Reporters Committee for Freedom of the Press, Arlington, Virginia, Richard M. Corn, New York, New York, for Amici Curiae.
Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.
BATCHELDER, J., delivered the judgment of the court. GIBBONS, J. (pp. 688-93), delivered a separate opinion concurring in the judgment only. GILMAN, J. (pp. 693-720), delivered a separate dissenting opinion.
OPINION
ALICE M. BATCHELDER, Circuit Judge.
The United States National Security Agency ("NSA") appeals from the decision of the District Court for the Eastern District of Michigan that granted summary judgment against the NSA and imposed a permanent injunction. The plaintiffs are a collection of associations and individuals led by the American Civil Liberties Union, and they cross-appeal. Because we cannot find that any of the plaintiffs have standing for any of their claims, we must vacate the district court's order and remand for dismissal of the entire action.
I.
Sometime after the September 11, 2001, terrorist attacks, President Bush authorized the NSA to begin a counter-terrorism operation that has come to be known as the Terrorist Surveillance Program ("TSP"). Although the specifics remain undisclosed, it has been publicly acknowledged that the TSP includes the interception (i.e., wiretapping), without warrants, of telephone and email communications where one party to the communication is located outside the United States and the NSA has "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." See Press Briefing by Att'y Gen. Alberto Gonzales and Gen. Michael Hayden, Principal Deputy Dir. for Nat'l Intelligence (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/print/XXXXXXXX-X.html (last visited July 2, 2007).[1]
The plaintiffs in this action include journalists, academics, and lawyers who regularly *649 communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP. From this suspicion, and the limited factual foundation in this case, the plaintiffs allege that they have a "well founded belief" that their communications are being tapped. According to the plaintiffs, the NSA's operation of the TSP and the possibility of warrantless surveillance subjects them to conditions that constitute an irreparable harm.
The plaintiffs filed suit in the Eastern District of Michigan, seeking a permanent injunction against the NSA's continuation of the TSP and a declaration that two particular aspects of the TSP warrantless wiretapping and data mining violate the First and Fourth Amendments, the Separation *650 of Powers Doctrine, the Administrative Procedures Act ("APA"), Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"), and the Foreign Intelligence Surveillance Act ("FISA"). Both sides moved for summary judgment. The district court dismissed the data mining aspect of the plaintiffs' claim, but granted judgment to the plaintiffs regarding the warrantless wiretapping. See ACLU v. NSA, 438 F.Supp.2d 754, 782 (E.D.Mich.2006).
The NSA had invoked the State Secrets Doctrine[2] to bar the discovery or admission of evidence that would "expose [confidential] matters which, in the interest of national security, should not be divulged." See United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The NSA argued that, without the privileged information, none of the named plaintiffs could establish standing. The district court applied the state secrets privilege, but rejected the NSA's argument, holding instead that three publicly acknowledged facts about the TSP (1) it eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is a suspected al Qaeda affiliate were sufficient to establish standing.[3] Moreover, the district court found these three facts sufficient to grant summary judgment to the plaintiffs *651 on the merits of their claims, resulting in a declaratory judgment and the imposition of an injunction. These three facts constitute all the evidence in the record relating to the NSA's conduct under the TSP.
In deciding the merits, the district court construed the Fourth Amendment as an absolute rule that "requires prior warrants for any reasonable search," ACLU v. NSA, 438 F.Supp.2d at 775, and announced that "searches conducted without prior approval by a judge or magistrate were per se unreasonable," id. at 771. Having found that the NSA was operating without warrants, the district court concluded without further explanation that President Bush had "undisputedly violated the Fourth [Amendment] . . . and accordingly ha[d] violated the First Amendment Rights of these Plaintiffs as well." Id. at 776. Proceeding from this conclusion, the court deemed the TSP unconstitutional and issued an order enjoining its further operation entirely:
IT IS HEREBY ORDERED that Defendants [i.e., NSA], its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter `TSP') in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter `FISA') and Title III;
IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III[.]
ACLU v. NSA, E.D. Mich. Dist. Court, No. 2:06-CV-10204, "Judgment and Permanent Injunction Order" (Aug. 17, 2006). The NSA moved for a stay of the injunction pending appeal, which the district court denied. Meanwhile, the NSA appealed, arguing that the plaintiffs lacked standing and that the State Secrets Doctrine prevented adjudication on the merits. This court stayed the injunction pending the outcome of this appeal. See ACLU v. NSA, 467 F.3d 590, 591 (6th Cir.2006).[4]
II.
This appeal presents a number of serious issues,[5] none of which can be addressed *652 until a determination is made that these plaintiffs have standing to litigate them. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (stating that there is no "doctrine of hypothetical jurisdiction"). "Every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even [if] the parties are prepared to concede it. . . . When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." Id. at 95, 118 S.Ct. 1003 (quotation marks, citations, and edits omitted).
Standing is an aspect of justiciability, Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), and "a plaintiff must demonstrate standing for each claim he seeks to press," Daimler-Chrysler Corp. v. Cuno, 547 U.S. ___, 126 S.Ct. 1854, 1867, 164 L.Ed.2d 589 (2006); accord Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 407 (6th Cir.1999) (requiring proof of standing for each individual claim). "[T]he standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (emphasis added).
The "particular plaintiffs" to this action are a diverse group of associations and individuals, and it would require a rigorous undertaking to assure that each has standing to litigate. However, for purposes of the asserted declaratory judgment though not necessarily for the requested injunction[6] it is only necessary that one plaintiff has standing. See Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (deciding a challenge to the constitutionality of a statute because at least one plaintiff had standing).[7] The injunction in this case is predicated on the declaratory judgment (i.e., a determination that the NSA's conduct is unlawful), so it follows that if the plaintiffs lack standing to litigate their declaratory judgment claim, they must also lack standing to pursue an injunction. The question is whether any plaintiff has standing to litigate the declaratory judgment claim.
As for the "particular claims," the plaintiffs have asserted six separate claims or causes of action three constitutional (First Amendment, Fourth Amendment, *653 and Separation of Powers) and three statutory (APA, Title III, and FISA)[8] and the plaintiffs must establish that at least one plaintiff has standing for each. See Bowsher, 478 U.S. at 721, 106 S.Ct. 3181; Cuno, 126 S.Ct. at 1867. Because a cause of action is intertwined with an injury, the injuries being alleged must be described as precisely and unambiguously as possible. A particularized analysis is therefore necessary.
The conduct giving rise to the alleged injuries is undisputed: the NSA (1) eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is reasonably suspected of al Qaeda ties. The plaintiffs' objection to this conduct is also undisputed, and they demand that the NSA discontinue it. The plaintiffs do not contend nor could they that the mere practice of wiretapping (i.e., eavesdropping) is, by itself, unconstitutional, illegal, or even improper. Rather, the plaintiffs object to the NSA's eavesdropping without warrants, specifically FISA warrants with their associated limitations and minimization requirements. See 50 U.S.C. §§ 1804-06. According to the plaintiffs, it is the absence of these warrants that renders the NSA's conduct illegal and unconstitutional. But the plaintiffs do not and because of the State Secrets Doctrine cannot produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a "well founded belief," that: their overseas contacts are the types of people targeted by the NSA; the plaintiffs are consequently subjected to the NSA's eavesdropping; the eavesdropping leads the NSA to discover (and possibly disclose) private or privileged information; and the mere possibility of such discovery (or disclosure) has injured them in three particular ways.
Notably, the plaintiffs do not allege as injury that they personally, either as individuals or associations, anticipate or fear any form of direct reprisal by the government (e.g., the NSA, the Justice Department, the Department of Homeland Security, etc.), such as criminal prosecution, deportation, administrative inquiry, civil litigation, or even public exposure. The injuries that these plaintiffs allege are not so direct; they are more amorphous and necessitate a pointed description.
The plaintiffs' primary alleged injury the first of three is their inability to communicate with their overseas contacts by telephone or email due to their self-governing ethical obligations.[9] Under this *654 claim, the immediate injury results directly from the plaintiffs' own actions and decisions, based on (1) their subjective belief that the NSA might be intercepting their communications, and (2) the ethical requirements governing such circumstances, as dictated by their respective professional organizations or affiliations. Relying on the district court's three facts, the plaintiffs allege their "well founded belief" that the NSA is intercepting their communications with overseas contacts, to the perceived detriment of those overseas contacts. The plaintiffs explain that they have an ethical duty to keep their communications confidential, which, under the circumstances, requires that they refrain from communicating with the overseas contacts by telephone or email, lest they violate that duty.[10] The possibility that private communications may be revealed burdens the plaintiffs' pursuit of their chosen professions or organizational objectives i.e., in order to comply with their ethical duties, the plaintiffs must refrain from communicating by telephone or email, and are instead required either to travel overseas to meet with these contacts in person or else refrain from communicating with them altogether. The injury manifests itself in both a quantifiable way (as the added time and expense of traveling overseas) and a non-quantifiable way (as the incomplete or substandard performance of their professional responsibilities and obligations). The plaintiffs alleged this injury in their complaint and again on appeal, even though it went unaddressed by the district court.
The second alleged injury and the only one expressly addressed by the district court is the "chilling effect" on the overseas contacts' willingness to communicate with the plaintiffs by telephone or email. Under this claim, the immediate injury results directly from the actions of the overseas contacts who, the plaintiffs contend, fear that the NSA's discovery of otherwise private or privileged information (being communicated by telephone or email) will lead to some direct reprisal by the United States government, their own governments, or others. This fear causes the overseas contacts to refuse to communicate with the plaintiffs by telephone or email, and this refusal to communicate burdens the plaintiffs in the performance of their jobs or other lawful objectives, because, in order to pursue their chosen professions or organizational objectives, the plaintiffs must travel overseas to meet with these contacts in person. This injury manifests itself as both an added expense and an added burden.
The plaintiffs' third alleged injury is the NSA's violation of their legitimate expectation of privacy in their overseas telephone and email communications. Under this claim, the immediate injury comes directly *655 from the actions of the NSA. The plaintiffs assert that the Fourth Amendment, Title III, and FISA limit the occasions and circumstances in which, and the manner by which, the government can lawfully intercept overseas electronic communications, giving rise to a legitimate expectation that their overseas communications will be intercepted only in accordance with these limits. The plaintiffs conclude that, because the NSA has conducted foreign electronic surveillance without obtaining FISA warrants (and presumably, without strict adherence to FISA's minimization requirements), the NSA has breached their legitimate expectation of privacy, thereby causing them injury. The plaintiffs alleged a violation of their privacy rights in their complaint, but the district court did not mention it and they have not pressed it on appeal.[11]
This third kind of injury, unlike the other two, is direct and personal; under this theory, the NSA has directly invaded the plaintiffs' interest and proof of such invasion is all that is necessary to establish standing. If, for instance, a plaintiff could demonstrate that her privacy had actually been breached (i.e., that her communications had actually been wiretapped), then she would have standing to assert a Fourth Amendment cause of action for breach of privacy.[12] In the present case, the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been wiretapped. Moreover, due to the State Secrets Doctrine, the proof needed either to make or negate such a showing is privileged, and therefore withheld from discovery or disclosure. See Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir.2004) (upholding dismissal because the defendants "cannot defend their conduct . . . without revealing the privileged information [so] the state secrets doctrine thus deprives [the d]efendants of a valid defense to the [plaintiff]s' claims"). This injury is not concrete or imminent under these circumstances, and this opinion focuses on the plaintiffs' two other alleged injuries.
One other issue demands attention, namely, that the plaintiffs' failure to subject themselves to actual harm does not, by itself, prevent a finding that they have standing specifically, it does not deprive them of the right to seek declaratory judgment. See 28 U.S.C. § 2201(a) (empowering courts to "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought"). Implicit in each of the plaintiffs' alleged injuries is the underlying possibility which the plaintiffs label a "well founded belief" and seek to treat as a probability or even a certainty that the NSA is presently intercepting, or will eventually intercept, communications to or from one or more of these particular plaintiffs, and that such interception would be detrimental to the plaintiffs' clients, sources, or overseas contacts. This is the premise upon which the plaintiffs' entire theory is built. But even though the plaintiffs' beliefs based on their superior knowledge of their contacts' *656 activities may be reasonable,[13] the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit.
A plaintiff's refusal to engage in potentially harmful activities is the typical substance of a declaratory judgment action and does not, by itself, preclude a finding that the plaintiff has standing. See Med-Immune, Inc. v. Genentech, Inc., 549 U.S. ___, 127 S.Ct. 764, 772-73, 166 L.Ed.2d 604 (2007). But it is important to distinguish the two harms that surround a declaratory judgment action. The anticipated harm that causes one to refrain from the activities may satisfy the "injury-in-fact" element of standing if it is sufficiently imminent and concrete. For reasons that will be made clear in the analysis, the other harm the harm that results from refraining from the potentially harmful activities is another matter. In the present case, the plaintiffs anticipate that the NSA's interception of telephone and email communications might be detrimental to their overseas contacts, and this perceived harm causes the plaintiffs to refrain from that communication (i.e., potentially harmful activity). Because there is no evidence that any plaintiff's communications have ever been intercepted, and the state secrets privilege prevents discovery of such evidence, see Reynolds, 345 U.S. at 10, 73 S.Ct. 528, there is no proof that interception would be detrimental to the plaintiffs' contacts, and the anticipated harm is neither imminent nor concrete it is hypothetical, conjectural, or speculative. Therefore, this harm cannot satisfy the "injury in fact" requirement of standing. Because the plaintiffs cannot avoid this shortcoming, they do not propose this harm the harm that causes their refusal to communicate as an "injury" that warrants redress. Instead, they propose the injuries that result from their refusal to communicate and those injuries do appear imminent and concrete.
Thus, in crafting their declaratory judgment action, the plaintiffs have attempted (unsuccessfully) to navigate the obstacles to stating a justiciable claim. By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm this is typical of declaratory judgment and perfectly permissible. See Med-Immune, 127 S.Ct. at 772-73. But, by proposing only injuries that result from this refusal to engage in communications (e.g., the inability to conduct their professions without added burden and expense), they attempt to supplant[14] an insufficient, *657 speculative injury with an injury that appears sufficiently imminent and concrete, but is only incidental to the alleged wrong (i.e., the NSA's conduct) this is atypical and, as will be discussed, impermissible.
Therefore, the injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is imminent and concrete (i.e., the burden on professional performance) does not support a declaratory judgment action. This general proposition the doctrine of standing is explained more fully in the sections of the analysis regarding each, individual cause of action.
III.
By claiming six causes of action, the plaintiffs have actually engaged in a thinly veiled, though perfectly acceptable, ruse. To call a spade a spade, the plaintiffs have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it. On a straightforward reading, this claim does not implicate the First Amendment.[15] The problem with asserting only a breach-of-privacy claim is that, because the plaintiffs cannot show that they have been or will be subjected to surveillance personally, they clearly cannot establish standing under the Fourth Amendment or FISA.[16] The plaintiffs concede as much.[17] In an attempt to avoid this problem, the plaintiffs have recast their injuries as a matter of free speech and association, characterized their claim as a violation of the First Amendment, and engaged the First Amendment's relaxed rules on standing.[18] This argument is not novel, but neither is it frivolous; *658 it warrants consideration, analysis, and an a full explanation by this court.
At this point, it becomes apparent that my analysis of whether the plaintiffs have standing diverges at a fundamental level from that of the concurring and dissenting opinions. They each employ a single, broad, all-encompassing analysis, with which they attempt to account for all of the plaintiffs' alleged injuries, requested remedies, and legal claims. As much as I would prefer that resolution of this question were so simple, I believe the law demands a particularized analysis of the plaintiffs' three alleged injuries, six asserted legal claims, and two requested forms of relief. See Cuno, 126 S.Ct. at 1867 ("[A] plaintiff must demonstrate standing for each claim he seeks to press."); Laidlaw, 528 U.S. at 185, 120 S.Ct. 693 ("[A] plaintiff must demonstrate standing separately for each form of relief sought."). Therefore, I believe the complexity of this case calls for a far more specific and comprehensive analysis than that offered by my colleagues.
A comprehensive analysis of all six claims in a single opinion, however, invites some overlap of legal doctrine, precedent, and reasoning. Such overlap similarly invites ambiguity, confusion, and misapplication. To avoid this pitfall, I define the plaintiffs' alleged injuries precisely, confine each cause of action to its own section, and take special care to ensure that I do not improperly carry precedent or legal doctrine from one cause of action to another. The benefit of precision will, I hope, outweigh any annoyance created by strict compartmentalization or redundancy.
IV.
The analytical approach to the determination of standing for constitutional claims differs from the approach to statutory claims. See Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. Where, however, Congress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.
Id. (quotation marks and citations omitted). The Court clarified:
Congress may not confer jurisdiction on Art. III federal courts to render advisory opinions, or to entertain `friendly' suits, or to resolve `political questions,' because suits of this character are inconsistent with the judicial function under Art. III. But where a dispute is otherwise justiciable, the question whether the litigant is a `proper party to request an adjudication of a particular issue,' is one within the power of Congress to determine.
Id. at 732 n. 3, 92 S.Ct. 1361 (citations omitted).[19] Therefore, this analysis is separated *659 into two sections constitutional claims and statutory claims and, by happenstance, the six causes of action are equally divided, with three in each section.
A. Constitutional Claims
"The irreducible constitutional minimum of standing contains three requirements": "[1] injury in fact, [2] causation, and [3] redressability." Steel Co., 523 U.S. at 102-03, 118 S.Ct. 1003 (citations and footnotes omitted). "Injury in fact" is a harm suffered by the plaintiff that is "concrete and actual or imminent, not conjectural or hypothetical." Id. at 103, 118 S.Ct. 1003 (quotation marks omitted) (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). "Causation" is "a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant." Id. (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). "Redressability" is "a likelihood that the requested relief will redress the alleged injury." Id. (citing Warth, 422 U.S. at 505, 95 S.Ct. 2197). This "irreducible constitutional minimum" applies to every claim sought to be litigated in federal court.
1. First Amendment
The plaintiffs allege that the NSA has, by conducting the warrantless wiretaps, violated the free speech and free association clauses of the First Amendment. The district court assumed that the plaintiffs had engaged in certain "protected expression," apparently referring to the telephone and email communications. Although the plaintiffs' painstaking efforts to keep these communications confidential belies the contention that this case involves expression,[20] I nonetheless assume this is a *660 viable First Amendment cause of action. Standing to litigate this claim requires a showing of three elements: (1) injury in fact, (2) causation, and (3) redressability. Steel Co., 523 U.S. at 102-03, 118 S.Ct. 1003.
Injury in Fact
"Art. III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian Coll. v. Ams. United for Sep. of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quotation marks omitted). "Allegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm[.]" Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). The Supreme Court's "clear precedent requir[es] that the allegations of future injury be particular and concrete." Steel Co., 523 U.S. at 109, 118 S.Ct. 1003.
The Supreme Court framed the question in Laird, 408 U.S. at 10, 92 S.Ct. 2318, as "whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights[21] is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity." The Court held that its plaintiffs, subjects of secret United States Army surveillance, may have suffered a "subjective chill," but did not allege a sufficiently concrete, actual, and imminent injury to entitle them to standing. Id. at 15, 92 S.Ct. 2318. Something "more" was necessary, and in a passage that is peculiarly applicable to the present case, the Court explained:
In recent years [we have] found in a number of cases that constitutional violations may arise from the deterrent, or `chilling,' effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.
Id. at 11, 92 S.Ct. 2318 (citations omitted; emphasis added); accord Sinclair, 916 F.2d at 1114-15 (finding surveillance alone insufficient for standing); United Presb. Church v. Reagan, 738 F.2d 1375, 1380 (D.C.Cir.1984) (finding no injury in fact because "no part of the challenged [surveillance] imposes or even relates to any direct governmental constraint upon the plaintiffs").
I cannot subscribe to a view that the reason the injury in Laird was insufficient was because the plaintiffs alleged "only" chilled speech and that, by something "more," the Laird Court meant more subjective injury or other injuries that derive from the chilled speech. The plaintiffs in Laird were political activists and the speech being chilled was political speech. Laird, 408 U.S. at 2, 92 S.Ct. 2318. In *661 First Amendment jurisprudence, political speech is the most valued type of speech. See R.A.V. v. City of St. Paul, 505 U.S. 377, 422, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (Stevens, J., concurring) ("Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position. . . ."). To say that there could be more injury in other circumstances is to suggest that political speech is not valuable in and of itself and that no conse