[00:00:01] Speaker 00: Pace number 23-5232, Dog Society and International Documentary Association, a balance, versus Anthony J. Blinken, Secretary, United States of Department of State, and Alejandro N. Mayorkas in his official capacity as Acting Secretary of Homeland Security. [00:00:19] Speaker 00: Mr. Sell for the balance, Mr. Brewer for the appellees. [00:00:25] Speaker 04: Ms. [00:00:26] Speaker 04: Sell, you may proceed. [00:00:27] Speaker 06: Thank you, Your Honor, and may it please the court [00:00:29] Speaker 06: My name is Caroline DeFell, and I represent the plaintiff's appellants. [00:00:32] Speaker 06: I'd like to reserve two minutes for a bottle. [00:00:35] Speaker 06: This case concerns government regulations that burden the free expression and association of millions of people each year, all while adding no demonstrated value to achieving the government's stated aims. [00:00:47] Speaker 06: Normally, courts wouldn't hesitate to conclude that these kinds of regulations are arbitrary and capricious under the First Amendment, under the APA, excuse me, and poorly tailored under the First Amendment. [00:00:56] Speaker 06: Because these regulations relate to immigration, however, the district court concluded that they were effectively off limits to judicial review. [00:01:02] Speaker 06: The government now doubles down on that conclusion, asking this court to hold that meaningful review of any government action that touches on immigration is foreclosed. [00:01:14] Speaker 05: I'd like to direct you toward the standing question. [00:01:18] Speaker 05: And a lot of the briefing is about injury and maybe we can talk about that a little bit later. [00:01:24] Speaker 05: But I have a bigger concern about causation and redressability after Murthy. [00:01:32] Speaker 05: And so I'll just share kind of what I'm thinking and then you can tell me where I kind of went off the rails. [00:01:42] Speaker 05: But state officials, even before this rule, [00:01:47] Speaker 05: State Department officials could already demand social media profiles on an ad hoc basis. [00:01:54] Speaker 05: Is that correct? [00:01:55] Speaker 06: Yes, Your Honor, they could. [00:01:57] Speaker 05: So in this case, the rule requires revealing those social media profiles. [00:02:05] Speaker 05: So the previous kind of status quo where they could demand the profiles, that is unchallenged conduct. [00:02:13] Speaker 05: But the new rule is challenged. [00:02:16] Speaker 05: So far so good. [00:02:17] Speaker 06: Yes, your honor. [00:02:20] Speaker 05: And then there's allegedly some self-censorship because people say, I don't want the State Department, if I apply for a visa, to see what I was doing on social media. [00:02:30] Speaker 05: It's hard for me to know whether that self-censorship is caused by the unchallenged conduct or the challenged conduct, because you could imagine either of them chilling speech and causing self-censorship. [00:02:45] Speaker 05: And there it seems very like Murthy, because in Murthy, the social media companies had their own policies, and that was unchallenged conduct. [00:02:56] Speaker 05: There was allegedly government pressure on the social media companies. [00:02:59] Speaker 05: That was challenged conduct. [00:03:00] Speaker 05: And there was self-censorship. [00:03:02] Speaker 05: And the court said, well, we can't know whether self-censorship was caused by the unchallenged conduct or the challenged conduct. [00:03:09] Speaker 05: So this really does seem quite analogous to Murthy. [00:03:13] Speaker 06: So thank you for the question, Your Honor. [00:03:14] Speaker 06: I think I have two key responses. [00:03:17] Speaker 06: First, there's a big difference between the mere possibility that in the context of an individual visa application, an applicant might be required to provide additional information to aid the consular officer's decision there. [00:03:29] Speaker 06: And the absolute guarantee under this dragnet disclosure requirement that you will be forced to disclose five years worth of social media handles that exposes many more years of social media activity to the government to then be retained in government files for 100 years after your birth and put any number of unknown uses in the future. [00:03:47] Speaker 06: So the chilling effect we think is much more pronounced and universally [00:03:51] Speaker 06: suffered in this case by visa applicants. [00:03:55] Speaker 06: The second point I would raise is simply the specificity and the allegations in our complaint. [00:04:00] Speaker 06: We have identified a number of different plaintiffs, members, and partners who have said that it is specifically because of the disclosure requirement that we're challenging in this case, that they have ceased to speak on social media in anticipation of applying for a new or renewed visa, for example. [00:04:17] Speaker 06: And so the specificity of the allegations in this complaint differ starkly from what the court reviewed in Murphy. [00:04:24] Speaker 05: I am not sure. [00:04:25] Speaker 05: The instances in Murphy involved individuals whose names were given, the specific content that they wanted to post, the specific kind of censorship by the social media companies that had come down on them. [00:04:43] Speaker 05: Sometimes it was kind of [00:04:44] Speaker 05: I forget all the terms, but sometimes it was just blocking them, but sometimes it was making it harder for people to view them. [00:04:50] Speaker 05: Here, your most specific person is some guy in the Midwest. [00:04:59] Speaker 05: We have no idea who he is. [00:05:00] Speaker 05: We don't even know what state he lives in. [00:05:02] Speaker 05: It's just the Midwest. [00:05:05] Speaker 05: And we don't know if he's eligible for a visa. [00:05:08] Speaker 05: We don't know if he's planning to apply for a visa. [00:05:13] Speaker 05: tomorrow or next year, this sort of has a Lujan flavor to it of like maybe sometime down the road, he'll apply for a visa. [00:05:21] Speaker 05: Actually, I say he and I think it's a he. [00:05:23] Speaker 05: But I don't remember if you even gave us the person's gender. [00:05:26] Speaker 05: Is it a he? [00:05:28] Speaker 06: We did not disclose them. [00:05:29] Speaker 06: For reasons that I can get into. [00:05:31] Speaker 05: And I get that, you know, your whole case is they're worried. [00:05:36] Speaker 05: So you can't give you can't give me, you know, name [00:05:39] Speaker 05: name, rank, and serial number. [00:05:40] Speaker 05: I get that. [00:05:41] Speaker 05: But some guy in the Midwest who might one day apply for a visa is pretty nonspecific. [00:05:49] Speaker 06: So thank you, Your Honor. [00:05:50] Speaker 06: With regard to the specificity, the contrast that I was drawing between our complaint and the Murthy complaint, what I'm really focusing on is the specificity with regard to the challenged government action. [00:06:00] Speaker 06: That's what Justice Barrett and the Murthy decision found lacking in that case, a tight connection between [00:06:06] Speaker 06: the challenge government action and the censorship that the individuals claim to have suffered. [00:06:13] Speaker 06: But moreover, in that case, the court made clear that the burden on plaintiffs increases throughout stages of the litigation. [00:06:20] Speaker 06: There, there was a dense evidentiary record in support of a preliminary injunction motion. [00:06:24] Speaker 06: Whereas here, this case is before the court on a motion to dismiss. [00:06:28] Speaker 06: And we think that the complaint identifies plausible allegations with the requisite specificity to survive a motion to dismiss. [00:06:34] Speaker 06: But moving forward in the case, there are a number of tools at the court's disposal to allow for protection of the identities of the members and partners who were quite concerned about disclosing their identities to the government, in part because some of them are challenging the forced disclosure of pseudonymous social media handles. [00:06:52] Speaker 06: So to identify themselves in the context of a challenge to the government would defeat the purpose of the challenge. [00:06:57] Speaker 02: If I could follow up on Ms. [00:06:58] Speaker 02: Walker's question focusing on redressability. [00:07:01] Speaker 02: Yes, Your Honor. [00:07:03] Speaker 02: You do have evidence that people stopped using social media because of this rule, but there isn't evidence that they would start using it again if the rule were vacated. [00:07:14] Speaker 02: And it seems to me that if there's still a risk that they can be asked about their social media activity [00:07:22] Speaker 02: by the consular officer in an interview, it has the same chilling effect. [00:07:27] Speaker 02: So how does vacatur of this rule redress that chilling effect? [00:07:34] Speaker 06: Thank you, Your Honor. [00:07:35] Speaker 06: Again, in speaking to plaintiff's members and partners, it was really the forced upfront disclosure of this information that resulted in the chill that they alleged in the complaint. [00:07:46] Speaker 06: But I would point the court to two cases that I think are instructive here. [00:07:50] Speaker 06: One is Department of Commerce versus New York, [00:07:52] Speaker 06: The court in Murphy cited in an extensive footnote and another is Americans for Prosperity Foundation versus Bonta, where the Supreme Court concluded that a disclosure, a government disclosure requirement at the outset has what it termed basically an inevitable chilling effect on speech and association. [00:08:12] Speaker 06: And that the invalidation in that case, the facial invalidation of that disclosure requirement would be sufficient relief to the plaintiff organizations and their members in that case. [00:08:24] Speaker 02: But in the facts of this case though, there's the continued chilling effect of the fact that the consular officer can still ask you the exact same question. [00:08:32] Speaker 06: Yes, and I think that actually was probably the case in Americans for Prosperity versus Bonta as well. [00:08:37] Speaker 06: The court acknowledged that the state of California could conduct its own investigations into the propriety of the charitable organizations' relationships with its donors. [00:08:47] Speaker 02: But in any event, here- I think it's a little bit more direct, though, because if you apply for a visa, you have to have that interview. [00:08:53] Speaker 02: So it's not just kind of, will the government focus on me in an investigation, which is a lot more amorphous, whereas here, [00:09:02] Speaker 02: there's always going to be individual scrutiny of each applicant. [00:09:07] Speaker 02: And the question is just this particular question, can it be asked in a dragnet fashion, as you say, or it can always be asked on an individual basis? [00:09:17] Speaker 02: And from the perspective of somebody who's applying, I feel like you're chilled either way. [00:09:21] Speaker 06: I respectfully disagree, Your Honor. [00:09:25] Speaker 06: I think that the absolute guarantee that you will be forced to disclose your social media handles to the government [00:09:30] Speaker 06: upfront in the application process stands in stark contrast to the mere possibility that a consular officer who's quite busy with a number of different adjudications will demand that information in your case, particularly given that it might very well not be at all relevant to the adjudication of your visa there. [00:09:47] Speaker 02: So shouldn't you have had evidence affidavit something of somebody saying that if you vacate this role, I will [00:09:54] Speaker 02: start speaking on social media again? [00:09:57] Speaker 06: We would be happy to provide that evidence going forward, Your Honor. [00:10:01] Speaker 06: Again, subject to appropriate protective orders, et cetera. [00:10:05] Speaker 06: We would love the opportunity to allow this case to proceed further in the litigation. [00:10:08] Speaker 02: Assuming that that's not an option, that you just get a second bite at the apple at proving standing. [00:10:13] Speaker 02: You already had a chance. [00:10:15] Speaker 06: One other thing I would note is that we did request to the district court the opportunity to amend our complaint if the district court considered it insufficiently specific to substantiate [00:10:23] Speaker 06: are standing. [00:10:24] Speaker 06: But the district court concluded that that would have been futile because the court concluded that the disclosure requirement at issue here is not subject to any review whatsoever under the APA and subject only to the most deferential review under the First Amendment. [00:10:36] Speaker 01: You don't specifically state in your complaint that if the policy were ceased, that people would go back into social media with their partners, members, et cetera, and seek that information. [00:10:51] Speaker 06: Your Honor, we don't specifically state that, but I think that's a reasonable inference from the allegations we do make in the complaint, which include numerous statements that it is specifically because of this disclosure requirement that plaintiffs, members, and partners have stopped speaking on social media. [00:11:06] Speaker 06: And I'd like to take this opportunity, if I may, to emphasize that plaintiffs have three separate theories of standing in this case. [00:11:13] Speaker 06: One is based on the informational injury that the district court concluded suffice for standing here, which really ties to the chilling effect [00:11:21] Speaker 06: plaintiff's members and partners on social media. [00:11:23] Speaker 06: We do have two other separate theories of standing. [00:11:25] Speaker 06: Another is important. [00:11:26] Speaker 01: Before you get to those though, let's talk about because it is dealing with informational injury. [00:11:33] Speaker 01: how do we square the Supreme Court case, Akins and Alliance for Hippocratic Medicine with PETA, you know, for our district, because you have one, at least at the Supreme Court level, suggesting that there's a legal requirement to the information versus you rely on the information, which is what our cases are talking about. [00:11:57] Speaker 01: And I'm just trying to square those two together. [00:11:59] Speaker 06: Thank you, Your Honor. [00:12:00] Speaker 06: Yes, the cases that were referenced in the FDA versus Alliance for Hippocratic Medicine decision are cases in which the plaintiff organizations are seeking information from the government specifically. [00:12:10] Speaker 06: And so in those cases, the court is concerned about the concreteness and particularity of the injury alleged by plaintiffs. [00:12:17] Speaker 06: And so the court has required plaintiffs to show a statutory right, in some instances, to the information sought. [00:12:24] Speaker 06: Here, in contrast, I would argue that our case is much more aligned with Havens Realty Corporation and another case out of this circuit, Action Alliance for Senior Citizens of Greater Philadelphia v. Techler. [00:12:36] Speaker 01: But I guess what I'm asking is, are those cases in conflict are precedent with the Supreme Court? [00:12:41] Speaker 06: No, your honor. [00:12:41] Speaker 06: They're consistent with the Supreme Court's decision and Haven's Realty Corporation, which the court and FDA acknowledged, you know, was still good law. [00:12:49] Speaker 06: And in that case, the plaintiff organization suffered an injury to its pre-existing mission critical activities, which were counseling home seekers. [00:12:59] Speaker 06: And it was [00:13:00] Speaker 06: the challenged action by an apartment complex there that had really kind of polluted the flow of information to the organization. [00:13:08] Speaker 06: And that gave rise to a sufficiently concrete and particularized injury to support standing. [00:13:14] Speaker 01: So you're only suggesting that you just have to show that you rely on the information. [00:13:18] Speaker 01: You don't have to have a legal right to it. [00:13:19] Speaker 06: That's right, Your Honor. [00:13:21] Speaker 05: We believe that the government is a legal right to it payments. [00:13:25] Speaker 06: So the plaintiffs in that case argued that the information that the apartment complex had provided was counter to law so that the apartment complex had engaged in racial steering. [00:13:36] Speaker 06: We're arguing that the government here is violating the APA and the First Amendment in requiring the disclosure of social media handles and that that has concretely, has very specifically disrupted the flow of information from plaintiffs members and partners. [00:13:49] Speaker 05: In your case, the information in question is information that a third party [00:13:55] Speaker 05: can choose to post or could choose to not post, right? [00:13:59] Speaker 05: Yes, Your Honor. [00:14:00] Speaker 05: And in Havens, the information was information that Havens was legally required to state truthfully, correct? [00:14:12] Speaker 06: They had to state it truthfully, yes. [00:14:13] Speaker 06: I mean, to the extent they were requested. [00:14:17] Speaker 05: You don't have to take my word for it. [00:14:18] Speaker 05: We said it. [00:14:20] Speaker 05: Hippocratic medicine has said it. [00:14:21] Speaker 05: But in Havens, there is a legal right to the information. [00:14:26] Speaker 05: The plaintiffs had a legal right to the information in question to to non lies statutory right yet to non to non lies to non racist lies. [00:14:35] Speaker 05: Yes. [00:14:36] Speaker 05: And here the plaintiffs do not have a legal right to the posts of third party social media users. [00:14:45] Speaker 05: Correct. [00:14:46] Speaker 06: Well, what we're arguing is that they have a legal right to to receive information that those those users would have been providing. [00:14:52] Speaker 05: But for what statute gives you a right to the person, the person of an unknown gender in the Midwest and his posts or her posts on social media. [00:15:04] Speaker 05: Let's call this person John Doe. [00:15:06] Speaker 05: What statute gives your clients a legal right to John Doe's Facebook, to John Doe choosing to make Facebook posts? [00:15:18] Speaker 06: So again, I can see that there's no legal right to have this information provided to the plaintiff organizations. [00:15:25] Speaker 06: But there is a legal right not to have the government disrupt the flow of information, as we've alleged under the First Amendment and the APA here. [00:15:33] Speaker 06: And then I would also point the court to the Action Alliance of Senior Citizens of Greater Philadelphia versus Heckler case, where the issue there was the Action Alliance had challenged HHS regulations. [00:15:45] Speaker 06: that in some instances had required the beneficiaries of federal funding to provide certain information to HHS for approval of that funding. [00:15:54] Speaker 06: And then with respect to HHS specifically, so that was a government-wide regulation, with respect to HHS specifically, it stopped requiring those private parties, the recipients of federal funding, to provide the same information. [00:16:05] Speaker 06: Action Alliance didn't allege any pre-existing legal right to information about the ages of people receiving services from those [00:16:14] Speaker 06: funded organizations. [00:16:16] Speaker 06: But nonetheless, the court concluded that they had standing to challenge the difference in those regulations that HHS had promulgated. [00:16:24] Speaker 05: I take that point and your opposing counsel can respond on that case if they wish. [00:16:31] Speaker 05: I want to follow up on [00:16:38] Speaker 05: your statement that, well, let me just read you something that Hippocratic Medicine said. [00:16:47] Speaker 05: Oh, I know. [00:16:47] Speaker 05: Your statement that there's a difference between a case where you're seeking information the government provides, and that's your informational right, versus here where you're seeking information that a third party provides, and that's your informational right. [00:17:02] Speaker 05: It seems like that might cut against you, because there, in both cases, I guess you'd sue the government, [00:17:09] Speaker 05: But when it's the government's information, that's a more direct injury to you. [00:17:15] Speaker 05: Here, it's a more indirect injury to you because you're suing the government, but it's not even the government's information. [00:17:22] Speaker 06: So I think perhaps this question gets to Judge Pan's question about traceability and redressability. [00:17:29] Speaker 06: And there, what I would say is that the standard, first of all, is whether or not the injury is likely traceable to the government's action. [00:17:38] Speaker 06: Again, here we have very specific allegations that it is because of the government's action that plaintiffs have been chilled. [00:17:45] Speaker 06: And again, I would point to Americans for Prosperity versus Bonta and the Department of Commerce case. [00:17:50] Speaker 06: uh, supporting the likelihood that the government action caused the injury, even though third parties are the more kind of immediate, uh, actor in that situation. [00:18:00] Speaker 05: I do think that you're, you're, you are correct that at least until recent Supreme court cases in the DC circuit, you could get standing through an informational injury, even if you didn't have a statutory right to the information that PETA says that. [00:18:20] Speaker 05: But after PETA comes, among other cases, Hippocratic medicine. [00:18:26] Speaker 05: Hippocratic medicine says associations have not claimed an informational injury. [00:18:31] Speaker 05: And in any event, the associations have not suggested that federal law requires FDA to disseminate such information upon request by members of the public. [00:18:40] Speaker 05: I just can't imagine why that line would have been in the opinion if the court didn't believe that [00:18:49] Speaker 05: In order to assert an informational injury, you need federal law to require the dissemination of that information to the plaintiffs. [00:19:00] Speaker 06: So, Your Honor, again, in that case, the plaintiff organizations were alleged, I think actually it was the government on behalf of the plaintiffs, were alleging an informational injury because [00:19:09] Speaker 06: I'm sorry, I'm confusing that with a different case. [00:19:13] Speaker 05: Quite the opposite. [00:19:13] Speaker 06: Yes. [00:19:14] Speaker 05: There's a lot of cases. [00:19:15] Speaker 06: I apologize. [00:19:16] Speaker 05: They don't all match up. [00:19:18] Speaker 06: But there, the plaintiff organizations were alleging that they suffered an injury because FDA was no longer providing the same kind of information that they previously had. [00:19:26] Speaker 06: So again, the organizations were claiming information, an injury stemming from lack of information from the government. [00:19:33] Speaker 06: And we, again, contrast that here. [00:19:37] Speaker 06: Putting aside the point that in the court's own terms that paragraph is effectively dicta, we think that's a different line of cases where the plaintiffs are requesting government information. [00:19:47] Speaker 06: And the concern in these cases is really whether or not there's a sufficiently particularized injury as the court has held [00:19:54] Speaker 06: Plaintiff organizations or plaintiffs in general need a personal stake in the litigation. [00:19:58] Speaker 06: And here we've explained at great length in our complaint the personal stake that these organizations have in receiving this kind of information from their members and partners on social media. [00:20:10] Speaker 05: useful may be very important to the plaintiffs. [00:20:14] Speaker 05: I think they don't have a federal right to it. [00:20:18] Speaker 05: Let me also ask about this line from same case, Hippocratic Medicine. [00:20:23] Speaker 05: It says, according to the medical associations, FDA has impaired their ability to provide services and achieve their organizational missions. [00:20:36] Speaker 05: Sounds a lot like your theory. [00:20:39] Speaker 05: Then the next line is that argument does not work to demonstrate standing. [00:20:44] Speaker 05: So what are you asserting for standing that goes beyond? [00:20:49] Speaker 05: The government has impaired your ability to provide services and achieve your organizational missions. [00:20:57] Speaker 06: Within the context of our informational injury argument, and I want to emphasize again that we have another organizational standing theory relying on constitutional injuries. [00:21:06] Speaker 06: And in addition to that, plaintiff IDA has associational standing based on the injuries suffered by its particular members. [00:21:13] Speaker 06: but staying within the context of the informational injury theory. [00:21:16] Speaker 06: Here, the allegations that those organizations were putting forward were much more amorphous than the allegations here. [00:21:23] Speaker 06: For example, Doc Society hosts what it calls the Doc Impact High Five Awards that are supposed to celebrate documentary films in part for their social impact. [00:21:34] Speaker 06: And Doc Society specifically measures social impact [00:21:37] Speaker 06: by looking at social media engagement, among other things. [00:21:40] Speaker 06: That relies crucially on information that its members and partners from around the world are providing on social media. [00:21:45] Speaker 06: And IDA has discovered cases of filmmaker censorship in countries around the world and then gone to great pains to investigate those cases, provide resources to those filmmakers, develop programming. [00:21:58] Speaker 06: It's getting real conferences in the United States. [00:22:01] Speaker 06: tethered to the information that its filmmakers are providing again on social media that enable it to provide the services that they provide to its broader community. [00:22:09] Speaker 02: Can you give us a concrete example of speech that was chilled because of this rule and how you would have used that speech? [00:22:18] Speaker 06: Yes, we've identified a number of individuals who say that because of the disclosure requirement, they have stopped speaking on social media or have gone back and reviewed. [00:22:28] Speaker 02: Let's try to understand what is the injury to your clients, because I see a lot of evidence that they're chilled. [00:22:35] Speaker 02: But then how would you have used the speech that they have decided not to make? [00:22:42] Speaker 06: Yes, Your Honor. [00:22:43] Speaker 06: So the speech, let me just point you to a few paragraphs in our complaint. [00:22:49] Speaker 06: Actually, it's not in the complaint. [00:22:50] Speaker 02: I want a concrete example. [00:22:51] Speaker 02: For example, John Doe, he normally would say, I don't know, I support Donald Trump. [00:22:59] Speaker 02: And now he's not saying it. [00:23:00] Speaker 02: How would you have used that? [00:23:01] Speaker 02: I'd want an actual concrete example of how this works. [00:23:04] Speaker 02: How does your organization use the speech that is chilled? [00:23:08] Speaker 06: So for example, there are people, and I'll go back to the filmmaker censorship cases, the members, I think it was IDA members in that instance, who are providing information about being chilled in countries where they're working, or sorry, being censored by governments in countries where they're working. [00:23:25] Speaker 06: They would normally have said that on social media, I'm being censored. [00:23:28] Speaker 06: I'm just wondering, please, concrete examples. [00:23:30] Speaker 06: Yes, they have said that on social media. [00:23:32] Speaker 06: You're being chilled by foreign countries? [00:23:34] Speaker 06: Yes. [00:23:35] Speaker 05: That means they're not being chilled by our countries. [00:23:37] Speaker 06: Sorry, let me connect the dots here. [00:23:42] Speaker 06: So in those cases, there are filmmakers in other countries who are facing censorship by the governments in the countries where they're working or where they live. [00:23:49] Speaker 06: They have in the past noted that on social media. [00:23:53] Speaker 06: And that information has then gone to IDA, where it can develop resources and programming, et cetera, to support its community of filmmakers and to alert other filmmakers that they might face those threats. [00:24:04] Speaker 06: It is in countries around the world where filmmakers like IDA's members face threat of persecution, et cetera, where they might be particularly likely to use pseudonymous social media accounts. [00:24:16] Speaker 06: But because they're now forced to disclose their identities to the US government. [00:24:23] Speaker 02: But those people would have to know that they're going to seek visas in the future. [00:24:27] Speaker 06: Yes, and we have identified individuals who plan to seek visas or who have already sought visas in the United States who, because of the disclosure requirement, have stopped speaking on social media. [00:24:36] Speaker 05: What speech did they self-censor? [00:24:39] Speaker 06: In our complaint, we identify many posts that relate to political speech. [00:24:45] Speaker 06: So speech about government policies and let's see. [00:24:53] Speaker 06: Sorry, I'm just trying to be specific here for you. [00:24:57] Speaker 02: And, you know, another director, I think the issue is you have to show concrete, immediate, particularized injury to your client. [00:25:07] Speaker 02: And I feel like what's in your complaint and in this record is really kind of amorphous. [00:25:11] Speaker 02: Oh, we use social media to do stuff. [00:25:15] Speaker 02: And I don't know that you've met that burden of showing that it's concrete and particularized. [00:25:19] Speaker 02: Because I think the law requires you to say, this speech is chilled. [00:25:25] Speaker 02: We would have used it in this way. [00:25:27] Speaker 02: And that is important to our mission or our thing. [00:25:31] Speaker 02: And I don't see those dots being connected. [00:25:34] Speaker 06: Thank you, Your Honor. [00:25:35] Speaker 06: I mean, again, we think at the motion to dismiss stage, we have sufficiently alleged those injuries. [00:25:40] Speaker 06: But I do, again, want to emphasize that we have two other separate theories of standing. [00:25:44] Speaker 06: One is based on the plaintiff organizations hosting of events in the United States. [00:25:48] Speaker 06: These are their bread and butter activities. [00:25:50] Speaker 06: Their very missions are to bring filmmakers from around the world together at conferences and screenings and award ceremonies, et cetera, in the United States. [00:25:59] Speaker 06: to support that community. [00:26:00] Speaker 06: And we've, for example, Doc Society's Good Pitch events that are hosted here. [00:26:06] Speaker 02: Then can you walk us through what the analysis is for those people? [00:26:10] Speaker 02: Because now they're not applying? [00:26:11] Speaker 02: I need to understand what is the injury to you. [00:26:14] Speaker 06: Yes, exactly. [00:26:14] Speaker 06: We've identified a number of individuals who are now deciding not to apply for US visas to come to the United States because they fear that their social media information will be swept up into government databases and then potentially shared with [00:26:27] Speaker 06: I mean, untold number of governments through pre-existing information sharing agreements or simply used in a way that might delay future, I'm sorry, that's a separate category, but individuals who are no longer willing to come to the United States specifically because of the disclosure requirement and the burden that it places on them and their speech online. [00:26:46] Speaker 06: So rather than being chilled in their speech, they're being deterred from traveling to the United States and attending events at plaintiff organizations that plaintiff organizations are hosting here [00:26:56] Speaker 02: that with you know without these events and without the participation of their are they are they sort of very specific people that you're pointing to here because then we're more like in Mandela and like you have invited them they can't come because of this or you just saying just broadly there are people who are not coming and they could have come to our events. [00:27:12] Speaker 06: We've identified individuals who have decided not to accept future work here despite significant past work, who would have sought visas to come to the United States. [00:27:24] Speaker 06: A Turkish IDA member who is currently working on a project with US workers. [00:27:28] Speaker 02: Are we still talking about organizational standing or now are we associational? [00:27:31] Speaker 06: So still organizational standing, because these people are not coming to the United States. [00:27:35] Speaker 06: And as a result, the plaintiff organization's events are suffering a loss of participation that goes to their very reason for existence. [00:27:41] Speaker 02: So they would have come to the events. [00:27:43] Speaker 02: They were going to come for the events. [00:27:44] Speaker 02: And now they're not applying for visas for your events. [00:27:46] Speaker 02: They're not applying for visas to come to the United States at all. [00:27:49] Speaker 02: But again, isn't that a little bit amorphous? [00:27:51] Speaker 02: They're not here. [00:27:51] Speaker 02: And if they were here, maybe they would have come to our events. [00:27:53] Speaker 02: Is that what you're saying? [00:27:55] Speaker 06: Yes, but we do also identify an individual who no longer is willing to participate in screenings and question and answer sessions. [00:28:02] Speaker 06: because his comments may be mischaracterized by others and shared on social media. [00:28:05] Speaker 06: And then those are your screenings. [00:28:07] Speaker 02: I mean, it has to be your client's injury. [00:28:11] Speaker 02: And I hear a lot of injury, but I'm having trouble kind of homing in on how it affects your clients. [00:28:17] Speaker 02: Your client has to have immediate, concrete, particularized injury. [00:28:20] Speaker 06: Yes, Your Honor. [00:28:21] Speaker 06: And we think that these allegations and the reasonable inferences drawn from them under the motion to dismiss standards support the connection between these [00:28:29] Speaker 06: members and partners who are deciding not to come to the United States and the result that they will not be attending plaintiff's events here. [00:28:34] Speaker 06: But I do, you know, want to put forward our third theory of standing as well, the associational [00:28:41] Speaker 06: injuries or sorry the associational standing that IDA has based on the injuries suffered by its specific members and I think the district court's analysis later on in its opinion is instructive here where the district court concluded that plaintiff IDA had raised valid First Amendment claims in part based on its members who are currently in the United States and so who have kind of the full scope of First Amendment protections who are being presently chilled by the knowledge that they will have to apply for visas to [00:29:09] Speaker 06: uh you know to renew their visas or apply for new visas to remain in the United States and continue their lives and work here um and I'll just uh point you to the specific pages of the district court opinion that unpacked this I think quite helpfully um the district court analysis at JA 361 to 364 [00:29:32] Speaker 06: gives a full explanation that we endorse as supporting our associational standing for IDA specifically because it's a membership organization. [00:29:39] Speaker 06: And I would note again that if the court concludes that there is specificity lacking in the complaint, we would very much welcome an opportunity to amend the complaint and provide that specificity. [00:29:54] Speaker 02: Would you have had to have [00:29:57] Speaker 02: requested to amend the complaint on the grounds? [00:30:00] Speaker 02: For example, if we think that you have not demonstrated redressability, which goes to all of your claims, in order for you to get a second bite at the apple, would it be required for you to have sought to amend your complaint to address redressability in the court below? [00:30:18] Speaker 06: I don't think that level of specificity is required. [00:30:21] Speaker 06: We did ask the district court for leave to amend the complaint if the court ruled in the government's favor. [00:30:27] Speaker 06: And the district court concluded that it would have been futile to allow us leave to amend the complaint because of its legal conclusions that the disclosure requirement simply was not subject to review at all under the APA and subject to only very deferential review under the First Amendment. [00:30:43] Speaker 06: And those are the two key conclusions that we challenge here. [00:30:45] Speaker 06: in part because we think that the sweeping implications of those conclusions are simply far beyond anything this court or the Supreme Court has endorsed to date. [00:30:57] Speaker 06: So if I may, I'll turn to those arguments, but I see my time has expired. [00:31:00] Speaker 05: I want to ask one or two more standing questions, and then I'll ask my colleagues if they have questions on the merits, and then it'll be up to them whether we go into the merits. [00:31:13] Speaker 05: Judge Pan just mentioned that [00:31:16] Speaker 05: If redressability is a problem for you based on the theory that you and I began talking about, that would mean you have no standing for anything, correct? [00:31:30] Speaker 06: Yes, Your Honor, but I think the redressability concern is pretty squarely answered in the Americans for Prosperity v. Bonta case, where the court concluded that a disclosure requirement, not terribly dissimilar from the one here, was facially invalid and reached the full merits of that determination, in part because invalidating the disclosure requirement would have addressed the chill that the plaintiff charitable organizations were complaining of. [00:31:56] Speaker 06: even though their donors could have been swept up in individual investigations into those charities activities, you know, in the future, notwithstanding here. [00:32:06] Speaker 05: It's possible that an order in your favor would, and I'm going to quote some language the district court quoted from non-binding authorities, but an order in your favor would remove an impediment to the desired behavior. [00:32:23] Speaker 05: It would make the desired behavior far easier. [00:32:27] Speaker 05: It would make for better odds that the desired behavior would happen. [00:32:34] Speaker 05: But none of that is enough. [00:32:37] Speaker 05: What you need is something beyond conjecture that even though consular officers can still demand social media profiles, these people will post the things to social media that they have stopped posting because of the challenged government. [00:32:59] Speaker 06: Your Honor, we have alleged that but for the disclosure requirement, plaintiffs, members and partners would continue speaking on social media as they previously had. [00:33:07] Speaker 05: That has to be a plausible allegation. [00:33:11] Speaker 06: Yes, and we think it's entirely plausible, particularly in light of the Supreme Court's many decisions about the chilling effects of government disclosure requirement. [00:33:18] Speaker 06: Again, as the Court and Americans for Prosperity Foundation termed it, that there's an inevitable chill. [00:33:24] Speaker 05: What's your best case for? [00:33:25] Speaker 05: There are two government chilling policies. [00:33:29] Speaker 05: We're challenging one of them. [00:33:32] Speaker 05: And if we win on that one, we [00:33:35] Speaker 05: we have a redressable injury, never mind that there's still a second government chilling policy. [00:33:42] Speaker 06: I think Bonta is exactly that case, Your Honor. [00:33:44] Speaker 06: I mean, the California AG's office could have always conducted its own investigation. [00:33:49] Speaker 06: And in fact, the court looked to that possibility of conducting our investigations. [00:33:53] Speaker 05: In this context, the government is going to investigate every single visa applicant. [00:34:00] Speaker 06: But is not [00:34:01] Speaker 06: Excuse me, your honor. [00:34:02] Speaker 06: Sorry. [00:34:03] Speaker 06: There is no guarantee that this particular information will be requested because it's an additional just opportunity for a consular officer. [00:34:10] Speaker 06: This goes to the point that consular officers, in terms of the evidence that has been put before the agency, don't view it that helpful. [00:34:17] Speaker 05: You're positing a weirdly sort of [00:34:20] Speaker 05: half risk averse, half risk welcoming, unknown visa applicant whose speech we don't exactly know what it's going to be. [00:34:28] Speaker 05: And this visa applicant is risk averse enough that they won't post because [00:34:36] Speaker 05: They're sure they have to turn over their social media profile, but they're risk welcoming enough that they will post, even though there's going to be an investigation of them when they apply for a visa. [00:34:48] Speaker 05: And that investigation might ask the very question that chilled them from posting in the first place. [00:34:53] Speaker 06: I think the difference could be a 1% possibility that that information is requested on an individualized basis and 100% guarantee that you're going to be forced to disclose it at the outset, even though it might not be relevant to the visa category that you're applying to. [00:35:07] Speaker 05: An unusual gambler. [00:35:10] Speaker 02: And you're assuming that they're all going to think it's a 1% possibility. [00:35:13] Speaker 02: But if you're worried that you have postings that would affect you or could be divulged to hostile governments, [00:35:20] Speaker 02: To be clear, you're going to weigh that heavily. [00:35:24] Speaker 06: If I may clarify one thing, it's not that the members and partners are considering their social media as directly relevant to their visa application. [00:35:37] Speaker 06: They're simply concerned about the likelihood that it will be reviewed, notwithstanding the fact that it's not relevant to their application. [00:35:43] Speaker 06: and misconstrued by the government, or even not misconstrued by the government, that they are allowed to enter the country, that it doesn't impact their visa application process whatsoever, but then it's stockpiled in government databases and potentially shared with threatening governments in the future. [00:35:57] Speaker 06: So again, the concern here isn't even necessarily that they would be denied on the basis of the social media information that they're disclosing to the government under this requirement. [00:36:08] Speaker 06: but simply the harm that government disclosure requirements kind of inevitably have, as in Shelton v. Tucker, Bonta, and many other cases dating back many decades. [00:36:18] Speaker 04: Ms. [00:36:18] Speaker 04: DeSalle, let me ask, Charles, do you have questions on the merits? [00:36:21] Speaker 04: Do you have questions on the merits? [00:36:22] Speaker 04: No. [00:36:24] Speaker 05: I don't think we have any questions on the merits, but we do have your very excellent brief on the merits, and it will be considered. [00:36:31] Speaker 06: Thank you. [00:36:41] Speaker 05: Mr. Brewer. [00:36:42] Speaker 03: May it please the court, Simon Brewer for the government. [00:36:45] Speaker 03: The plaintiff organizations lack standing to bring this challenge. [00:36:48] Speaker 03: They are not directly regulated by the disclosure requirement that they challenge. [00:36:52] Speaker 03: So instead they rely on a series of attenuated harms reportedly arising from third parties reactions to the disclosure requirement. [00:37:00] Speaker 03: But as recent Supreme Court decisions make clear, those purported harms do not support Article III standing. [00:37:07] Speaker 03: Starting with the organizational injuries alleged, Alliance for Hippocratic Medicine clearly forecloses the diversion of resources theory pressed by plaintiffs. [00:37:15] Speaker 03: That leaves only their theory of informational injury, which itself is also foreclosed. [00:37:21] Speaker 01: You believe the plaintiffs have to have a legal right or entitlement to the information they can't just rely on. [00:37:27] Speaker 03: That is what the Supreme Court said in Alliance for Hippocratic Medicine in that sentence read by Judge Walker earlier. [00:37:33] Speaker 01: How does that square with DC Circuit precedent? [00:37:35] Speaker 03: To the extent prior DC Circuit cases came to an opposite conclusion, they have been abrogated by the Supreme Court's holding. [00:37:42] Speaker 03: Was it a holding? [00:37:44] Speaker 03: I think it was, Your Honor. [00:37:46] Speaker 03: The Supreme Court said that the plaintiffs hadn't alleged such a theory. [00:37:49] Speaker 03: But then even if they had, it would still be foreclosed under the Supreme Court's case law. [00:37:56] Speaker 01: So if we were to go with you, is there any cleanup in our case law? [00:38:02] Speaker 03: I think what your honors could say is that to the extent that prior DC Circuit precedent left open the possibility or perhaps even endorsed the idea that a statutory entitlement to information was not required, following the lines for Hippocratic medicine, that is no longer a good law. [00:38:21] Speaker 03: Turning to their First Amendment harms, Murthy makes clear that they can't rely on this listener theory of standing either. [00:38:28] Speaker 03: As an initial matter, it relies on speculation about causation and redressability, as the panel's question suggested earlier. [00:38:34] Speaker 03: These are speech posted online by third parties. [00:38:38] Speaker 03: Those third parties may choose to post or not to post for any number of reasons outside the disclosure requirement. [00:38:45] Speaker 03: In addition, and Murphy makes clear that such speculation does not support an Article III injury. [00:38:52] Speaker 03: Plaintiffs also lack the kind of concrete and specific connection to the speakers that is required under the Supreme Court's case law to give rise to this listener theory of standing under the First Amendment. [00:39:07] Speaker 03: On turning to the associational theories, unless the court has any questions on the organizational theories, [00:39:14] Speaker 03: To have associational theory of standing, the plaintiff organizations would need to identify a specific member of plaintiff IDA who would have standing in their own right to press the challenge that it sought. [00:39:27] Speaker 03: And they clearly have failed to allege enough facts that would support such an associational theory of standing. [00:39:32] Speaker 03: There is one sentence in the complaint about a member of IDA who lives in the Midwest who has purportedly reviewed some of their social media and deleted certain posts. [00:39:42] Speaker 03: There is nothing in the complaint about whether or not this person will be required to apply for a visa in the future, when that might be, [00:39:51] Speaker 03: kind of visa and so forth that would would allow an assessment of whether or not this actually inflicts a concrete and imminent injury on them as opposed to being a an independent decision made by this person absent any sort of imminent injury or concrete fear. [00:40:10] Speaker 01: What about the traditionally manageable standard of review? [00:40:15] Speaker 01: Yes, use of the term necessary. [00:40:17] Speaker 03: So turning to the merits, assuming that one or more plaintiffs have standing, the statute does not provide any judicially manageable standard. [00:40:25] Speaker 03: And I think the key here is that the term necessary standing alone isn't the right way to look at this question. [00:40:31] Speaker 03: The statute directs the secretary to collect information necessary to, among other things, the enforcement of federal nationality and immigration law. [00:40:41] Speaker 03: And that provides no judicially manageable standard. [00:40:43] Speaker 03: If, for example, a statute directed the FBI in the course of its investigations to collect information it deems necessary to carry out its law enforcement and investigatory functions, we would not expect courts to be second guessing its judgments about what kind of information is necessary for those investigations. [00:41:01] Speaker 03: And so, too, here, the State Department has been tasked with investigating and enforcing immigration and nationality laws. [00:41:08] Speaker 03: And it has made a reasoned judgment that this type of information contributes to that investigation. [00:41:15] Speaker 02: Can you talk about redressability? [00:41:19] Speaker 03: Yes, Judge Pan. [00:41:19] Speaker 03: So to Your Honor's question from earlier, there is a real redressability problem here because the plaintiffs have conceded that consular officials [00:41:29] Speaker 03: can collect this information as part of individual visa applications. [00:41:33] Speaker 03: And Murthy indicates, in that kind of scenario, redressability is lacking because the plaintiffs had similar incentives to moderate their own content posted on social media. [00:41:43] Speaker 03: So whether or not the information collection policy challenge here remains as part of the visa application, visa applicants have similar incentives [00:41:54] Speaker 03: to consider what they're posting on social media and knowing that public posts could be reviewed as part of the visa application process. [00:42:00] Speaker 02: And as a procedural matter, there was a motion to in the court below that was denied. [00:42:07] Speaker 02: Is this something that we can just decide in the first instance or should it be remanded? [00:42:11] Speaker 03: Standing is, of course, something that the court can decide in the first instance. [00:42:15] Speaker 03: And in fact, the court has an obligation to address jurisdictional issues, of course. [00:42:19] Speaker 02: But I guess the question is, is there any way that they could provide more evidence that would support standing? [00:42:27] Speaker 03: So I think the fundamental standing defects here are multiple. [00:42:32] Speaker 02: And I'm specifically focusing on redressability, because presumably they could get an affidavit from somebody that says, [00:42:40] Speaker 02: If the rule is vacated, I will post again, even though there is this chance that the consular official will ask me the same question later. [00:42:49] Speaker 03: One would think that if such a person were willing to say that, it would have been included in the complaint in the first instance. [00:42:55] Speaker 03: But to the extent Your Honor is concerned that plaintiffs might be able to come up with such a person, I think that speaks to the fact that there are other independent grounds why standing is lacking here. [00:43:05] Speaker 03: And so a ruling on those would clearly foreclose. [00:43:09] Speaker 02: Well, I'm just focusing on redressability. [00:43:10] Speaker 02: If we think that that's the problem, does that need to be a remand? [00:43:14] Speaker 02: Or do you think that there's nothing they could do to amend their complaint to address that redressability problem? [00:43:21] Speaker 03: I think if plaintiffs were able to come up with such a person, it would have been included in the complaint, for instance. [00:43:27] Speaker 05: And there's some language in, I think it's Murthy, that what they, because they're seeking a perspective [00:43:39] Speaker 05: you know, relief, they'd have to not only show that, well, they have to show that going forward, that person would post something, but will not post something absent of relief. [00:43:58] Speaker 05: That's easiest to support by showing that it's happened in the past. [00:44:01] Speaker 05: That same person has been chilled in the past. [00:44:08] Speaker 04: I guess they wouldn't have to show that the person had been chilled in the past, but what do you think? [00:44:14] Speaker 03: That's right. [00:44:14] Speaker 03: So the essential question for perspective relief is what is going to happen in the future? [00:44:18] Speaker 03: Is there some kind of imminent or ongoing injury? [00:44:20] Speaker 05: It's really hard to show that if it hasn't happened in the past. [00:44:23] Speaker 03: Right. [00:44:23] Speaker 03: And that's exactly right. [00:44:24] Speaker 03: And so one of the difficulties faced in Murthy by the plaintiffs was this inability to show past injury with respect to traceability and causation. [00:44:33] Speaker 03: And so that, of course, will make it more difficult, but ultimately for perspective relief, the questions about the future. [00:44:39] Speaker 03: I'd be glad to answer any other questions the panel has. [00:44:44] Speaker 03: I think we have your argument. [00:44:49] Speaker 04: We urge you to affirm. [00:44:50] Speaker 04: Thank you, Mr. Brewer. [00:44:54] Speaker 04: Ms. [00:44:54] Speaker 04: Distell, you're up. [00:44:58] Speaker 06: Thank you, Your Honor. [00:44:59] Speaker 06: I'd like to just make two points on redressability to address the court's concerns. [00:45:04] Speaker 06: So first, with respect to the kind of probability question, we think there's a significant difference between a guarantee that you will be run over while crossing a multi-lane highway and the possibility that you will be run over if you cross a crosswalk at a red light. [00:45:20] Speaker 06: We think that's the difference between the dragnet, boil the ocean approach to collecting social media information that the government has taken here and the individualized application specific approach that consular officers are allowed to pursue under pre-existing authority. [00:45:36] Speaker 06: Second, the Supreme Court in the Department of Commerce case did address a situation [00:45:43] Speaker 06: We think that, you know, it goes even beyond the situation here where the party states were concerned that the addition of a citizenship question to the census [00:45:53] Speaker 06: would result in fewer people completing the census. [00:45:57] Speaker 06: And the Supreme Court held and the court in Murphy cited this decision at length in a footnote that third parties will likely react in predictable ways to the citizenship question even if they do so unlawfully because they're required to complete the citizenship application and despite the requirement that the government keep individual answers confidential. [00:46:15] Speaker 06: So there, and I'm quoting from this case, the court held that respondents theory of standing does not rest on mere speculation about the decisions of third parties [00:46:23] Speaker 06: It relies instead on the predictable effect of government action on the decisions of third parties. [00:46:28] Speaker 06: And that's what we've alleged here as well. [00:46:30] Speaker 06: No further questions. [00:46:31] Speaker 05: I think that's helpful. [00:46:32] Speaker 05: And I think your metaphor about the road is extremely helpful. [00:46:36] Speaker 05: I'm not sure if I'm persuaded, but that was a very strong metaphor. [00:46:40] Speaker 05: Appreciate it. [00:46:41] Speaker 05: Thank you for your time. [00:46:42] Speaker 06: Thank you very much.