Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/19



In Laird, the plaintiffs sought declaratory and injunctive relief on their claim that their rights were being invaded by the Army's domestic surveillance of civil disturbances and "public activities that were thought to have at least some potential for civil disorder." Id. at 6. The plaintiffs argued that the surveillance created a chilling effect on their First Amendment rights caused by the existence and operation of the surveillance program in general. Id. at 3. The Supreme Court rejected the plaintiffs' efforts to rest standing upon the mere "chill" that the program cast upon their associational activities. It said that the "jurisdiction of a federal court may [not] be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity." Id. (emphasis added)

Laird, however, must be distinguished here. The plaintiffs in Laird alleged only that they could conceivably become subject to the Army's domestic surveillance program. Presbyterian Church v. United States, 870 F.2d 518, 522 (1989) (citing Laird v. Tatum, 408 U.S at 13) (emphasis added). The Plaintiffs here are not merely alleging that they "could conceivably" become subject to surveillance under the TSP, but that continuation of the TSP has damaged them. The President indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of conversations that would be subject to the TSP.

Although Laird establishes that a party's allegation that it has suffered a subjective "chill" alone does not confer Article III standing, Laird does not control this case. As Justice (then Judge) [*20]