## Facts

- Journalists and political activists sued federal executive officials seeking declaratory and injunctive relief against NDAA § 1021(b)(2), which authorizes military detention of persons who are “part of or substantially support” al-Qaeda, the Taliban, or associated forces engaged in hostilities.
- Plaintiffs alleged the provision was vague and overbroad, could be applied to their reporting and advocacy activities, and chilled their speech and association due to fear of detention.
- The district court entered a preliminary injunction and later a permanent injunction, declaring § 1021(b)(2) unconstitutional and enjoining its enforcement.
- The government appealed, obtained a stay, and argued plaintiffs’ claimed injuries were speculative and not traceable to § 1021(b)(2), which it characterized as largely confirming detention authority existing under the 2001 AUMF.
- During the litigation, the government represented that plaintiffs’ described activities (e.g., journalism, interviews, and advocacy) would not subject them to detention under § 1021(b)(2).

## Issues

1. Whether plaintiffs had Article III standing to challenge NDAA § 1021(b)(2) by showing an injury in fact that was concrete and actual or imminent.
2. Whether plaintiffs’ claimed chilling effect on speech constituted a cognizable injury in fact absent an objectively reasonable fear of enforcement.
3. Whether any asserted risk of detention was fairly traceable to § 1021(b)(2), as opposed to preexisting detention authority, and redressable by an injunction against that subsection.

## Decision

- The Second Circuit vacated the permanent injunction and remanded with instructions to dismiss for lack of subject-matter jurisdiction.
- The court held plaintiffs failed to establish standing because they did not show a non-speculative, actual or imminent risk of detention under § 1021(b)(2).
- The court held plaintiffs’ alleged self-censorship did not establish injury in fact because, given the government’s disavowals, plaintiffs’ fear of enforcement was not objectively reasonable.
- The court declined to reach the constitutional merits of plaintiffs’ First Amendment, due process, and vagueness challenges.

## Legal Principles

- Article III standing requires (1) injury in fact that is concrete and particularized and actual or imminent, (2) causation, and (3) redressability.
- Allegations of possible future injury are insufficient; plaintiffs must show a certainly impending injury or a substantial risk of harm.
- Self-censorship can qualify as First Amendment injury only when the fear of enforcement is objectively reasonable.
- When the asserted injury depends on speculative application of a statute to a plaintiff’s conduct, and the government represents the conduct is not covered as applied, standing is not established.
- A plaintiff must link the claimed injury to the challenged provision itself; if the risk would exist (if at all) under independent, preexisting authority, causation and redressability are not satisfied.

## Conclusion

The Second Circuit vacated the injunction against NDAA § 1021(b)(2) and ordered dismissal because the plaintiffs’ asserted fear of military detention and resulting chill on speech were too speculative and not sufficiently traceable to the challenged provision to satisfy Article III standing, leaving the statute’s constitutionality unresolved in this case.


Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013)