Author: Jeff Vagle

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The Flawed Foundations of Article III Standing in Surveillance Cases (Part IV)

In my first three posts, I’ve opened a critical discussion of Article III standing for plaintiffs challenging government surveillance programs by introducing the 1972 Supreme Court case of Laird v. Tatum. In today’s post, I’ll examine the Court’s decision itself, which held that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

The Burger Court

It didn’t take long for courts to embrace Laird as a useful tool to dismiss cases where plaintiffs sought to challenge government surveillance programs, especially where the complaints rested on a First Amendment chill from political profiling by law enforcement. Some judges took exception to a broad interpretation of Laird, but objections largely showed up in dissenting opinions. For the most part, early interpretations of Laird sympathized with the government’s view of surveillance claims.

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The Flawed Foundations of Article III Standing in Surveillance Cases (Part III)

In my first two posts, I’ve opened a critical discussion of Article III standing for plaintiffs challenging government surveillance programs by introducing the 1972 Supreme Court case of Laird v. Tatum. In today’s post, I’ll examine the Court’s decision itself, which held that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

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The Flawed Foundations of Article III Standing in Surveillance Cases (Part II)

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

In my last post, I introduced the 1972 Supreme Court case of Laird v. Tatum, which has since served as a basis for subsequent courts to deny standing to plaintiffs seeking to challenge government surveillance programs. Here, I continue the exploration of Laird as unsound precedent for the high Article III bar currently facing surveillance plaintiffs.

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The Flawed Foundations of Article III Standing in Surveillance Cases (Part I)

I’m grateful for the opportunity to be a Concurring Opinions guest blogger this month. My posts will largely concentrate on the history of Article III standing for plaintiffs seeking to challenge government surveillance programs, and the flawed foundations upon which our federal standing jurisprudence rests. 


 

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon (Wikimedia Commons)

Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements. Federal courts have since relied upon Laird to deny standing to plaintiffs in surveillance cases, including the 2013 Supreme Court decision in Clapper v. Amnesty Int’l USA. But the facts behind Laird illuminate a number of important reasons why it is a weak basis for surveillance standing doctrine. It is therefore a worthwhile endeavor, I think, to reexamine Laird in a post-Snowden context in order to gain a deeper understanding of the Court’s flawed standing doctrine in surveillance cases.

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