Standing Uncertainty: An Expected-Value Standard for Fear-Based Injury in Clapper V. Amnesty International Usa

• Author: Sand, Andrew C

Introduction

This Note is about uncertainty and justiciable injury. Despite its doctrinal discomfort with uncertainty,1 the Supreme Court clearly allows plaintiffs to bring suit for injuries that have not yet occurred.2 At the same time, however, the Court requires some threshold showing of potential injury.3 This Note seeks to clarify the state of the doctrine4 between these two bookends by using concepts from probability theory.5

The Supreme Court has held that standing is a "core component" of the cases-and-controversies requirement of Article III of the Constitution and that a plaintiff must therefore have standing in order to sue in federal courts.6 The "irreducible constitutional minimum" to establish standing requires three showings: (1) injury in fact, (2) causation, and (3) redressability.7 To satisfy the injury-in-fact prong, a plaintiff must demonstrate a violation of a legally protected interest that is "(a) concrete and particularized, and (b) 'actual or imminent, not conjectural or hypothetical.' "8 For causation, there must be a causal link between the injury suffered and the conduct complained of-that is, the injury must be "fairly . . . trace[able]" to the defendant's actions and not attributable to independent third party actions.9 For redressability, the plaintiff must show that it is " 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'"10

This Note focuses on an underappreciated11 aspect of injury in fact: fear-based injury. Probabilistic injury refers to any injury where it is uncertain that the underlying injury will actually occur,12 and it includes two categories: (1) threatened injury, and (2) fear-based injury. Threatened injuries are future injuries in which injury to the plaintiff is anticipated but has not yet occurred.13 By contrast, fear-based injuries, also called chilling-effect injuries, are present injuries in which the plaintiff suffers actual injury based on fear or anticipation of a threatened injury.14

The Supreme Court recently addressed fear-based injury in Clapper v. Amnesty International USA,15 which involved a constitutional challenge to § 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA").16 FISA authorizes and regulates the government's use of communications obtained through electronic surveillance conducted for foreign-intelligence purposes.17 In 2008, Congress amended FISA18 and added § 702, which allows the government to target certain non-U.S. persons located abroad without demonstrating probable cause.19

On the day that Congress enacted § 702, a group of U.S. reporters, attorneys, activists, and workers-the Clapper plaintiffs-challenged the statute, offering two distinct claims under probabilistic standing. First, they alleged threatened injury because there was an "objectively reasonable likelihood" that their communications with their clients, a group including detainees associated with the September 11 attacks, would be intercepted under § 702 at a future time.20 Second, the plaintiffs contended that they had suffered fear-based injury because the risk of § 702 surveillance required them to take "costly and burdensome measures" to protect the confidentiality of their communications.21 In a 5-4 decision, the Supreme Court held that the plaintiffs lacked standing under both claims.22

This Note analyzes the Supreme Court's jurisprudence on fear-based injury and its Clapper opinion using probability theory and argues that fearbased injury should be governed by an expected-value standard.23 Expected value is a concept in probability theory that provides a weighted average of the likelihood and magnitude of injury.24 More importantly, expected value can be used to assign a present value to uncertain future events25-an assessment directly applicable to Clapper's claims of fear-based injury.

This Note proceeds in three Parts. Part I surveys the Supreme Court's doctrine on fear-based injury, moving chronologically from the differing interpretations of Laird v. Tatum26 to the Court's modern injury-in-fact jurisprudence. This study reveals three lines of doctrine and reframes them according to probability theory. Part II applies the resulting tripartite framework to Clapper and uses the Clapper Court's reasoning to argue in favor of footnote 5's substantial-risk standard. Part III then contends that the Court should interpret footnote 5's standard as encapsulating the probability concept of expected value. The Part justifies this augmented standard through legal precedent, additional probability principles, and practical concerns. A brief summary of all three Parts of this Note is provided in the following illustration:

1. Three Doctrinal Standards for Fear-Based Injury

   To situate properly the doctrinal dispute in Clapper, it is necessary first to survey the competing standards regarding the justiciability of fear-based injury. Section I.A begins chronologically with Laird-the foundational Supreme Court case for claims of fear-based injury in the government surveillance context-and examines the case's three subsequent interpretations. Section I.B analyzes these three views of Laird according to probability theory and derives a doctrinal framework based on judicial treatment of uncertainty. Section I.C expands the discussion to the Supreme Court's injury-in-fact jurisprudence, identifying three distinct lines of doctrine for fear-based injury. Section I.D then reframes this tripartite division according to probability theory and argues that such a framework corresponds elegantly to the framework derived from the Laird jurisprudence. Ultimately, this Note contends that these three separate standards are manifest within Clapper.27

   1. Three Views of Laird

      Decided by the Supreme Court in 1972, Laird established a limit on the justiciability of claims of fear-based injury challenging governmental action, holding that such claims require more than "[a]llegations of a subjective 'chill.' "28 More specifically, the Court held that the plaintiffs' challenge to an Army surveillance program was not justiciable.29 Although the Court acknowledged that constitutional violations might arise from a deterrent effect associated with governmental action,30 it distinguished Laird from justiciable cases31 in which the complainants were subject to "regulatory, proscriptive, or compulsory" governmental action.32 Ultimately, the Court held that "[a]llegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm" and that the plaintiffs' claims were not justiciable under this standard.33

      Since Laird, the Supreme Court and lower courts have consistently applied the case as a limitation on claims of fear-based injury involving governmental action but have construed its holding in three distinctive ways that emphasize different aspects of the opinion.34 First, the broad,35 Judge Scalia-endorsed reading of Laird permits only fear-based injury that results from "regulatory, proscriptive, or compulsory" governmental action-a category that did not include surveillance in Laird.36 Second, a restrained,37 Judge Breyer-sanctioned interpretation of Laird allows all objectively reasonable claims in which the plaintiff can demonstrate that a reasonable person would have felt legally cognizable apprehension under the circumstances.38 Third, the view espoused in Meese v. Keene applies Laird according to a distinct risk-of-injury standard.39

      Then-Judge Scalia's opinion in United Presbyterian Church in the U.S.A. v. Reagan40 represents a broad view of Laird's limit as permitting only claims of fear-based injury resulting from "regulatory, proscriptive, or compulsory" governmental action.41 In United Presbyterian, the D.C. Circuit held that a coalition of activists, journalists, and politicians lacked standing to challenge an executive order establishing a framework for executive intelligence activities.42 Judge Scalia held that the plaintiffs' claims failed under Laird's requirement of "regulatory, proscriptive, or compulsory" governmental action43 because the executive order did not govern the plaintiffs' conduct44 and "d[id] not direct . . . but merely authorize[d]" intelligence activities.45

      In contrast, then-Judge Breyer's opinion in Ozonoff v. Berzak46 exemplifies a restrained reading of Laird's limit-used by the Supreme Court47 and lower courts48-that allows claims of fear-based injury where the governmental action "reasonably leads [the plaintiff] to believe he must conform his conduct."49 In Ozonoff, the First Circuit held that a plaintiff had standing to challenge an executive order that required a loyalty check for employment with the World Health Organization.50 The plaintiff claimed fear-based injury because he felt constrained to conform his conduct and speech to loyalty standards.51 In response, Judge Breyer explicitly rejected a broad reading of Laird's limit52 and held that the proper doctrinal inquiry was whether the governmental action "reasonably leads [the plaintiff] to believe he must conform his conduct."53 Because the government forced a choice between free speech and loss of an employment opportunity, Judge Breyer held that the plaintiff's claims were justiciable.54

      Finally, in Meese v. Keene,55 the Supreme Court interpreted Laird's limit through a separate, risk-of-injury standard.56 The Court held that a politician had standing to raise a First Amendment challenge to the designation of three films as foreign "political propaganda"57 because he "could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career."58 Moreover, even after acknowledging that the plaintiff could have taken preventive steps to minimize the harm, the Court still held that "the need to take such affirmative steps to avoid the risk of harm to his reputation constitute[d] a cognizable...