Case 1:18-cv-09433-LGS Document 46 Filed 04/10/19 Page 1 of 30

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PEN AMERICAN CENTER, INC.,

No. 18 Civ. 9433 (LGS)

Plaintiff,
- against DONALD J. TRUMP, in his official capacity as
President of the United States,
Defendant.

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO
DISMISS PLAINTIFF’S AMENDED COMPLAINT

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
86 Chambers Street, Third Floor
New York, New York 10007
Tel: (212) 637-2715
Attorney for Defendant
Steven J. Kochevar
Assistant United States Attorney
– Of Counsel –

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND .............................................................................................................................2
ARGUMENT ...................................................................................................................................4
I.

THE COURT LACKS SUBJECT MATTER JURISDICTION OVER
PLAINTIFF’S CLAIMS ..........................................................................................5

A.

Plaintiff Lacks Standing...........................................................................................5
1.

Plaintiff Lacks Associational Standing to Bring Claims On Behalf
of Its Members .............................................................................................5

2.

Plaintiff Lacks Organizational Standing to Bring Claims On Its
Own Behalf ................................................................................................13

B.

The Court Lacks Jurisdiction to Grant Declaratory or Injunctive Relief
Against the President in This Context ...................................................................20

II.

PLAINTIFF’S COMPLAINT FAILS TO STATE A PLAUSIBLE
CLAIM UPON WHICH RELIEF CAN BE GRANTED ......................................22

A.

Legal Standards ......................................................................................................22

B.

Plaintiff Fails to State a Plausible Claim for Relief for Violations of the
First Amendment ...................................................................................................22

CONCLUSION ..............................................................................................................................25

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TABLE OF AUTHORITIES
Cases

Page(s)

ACLU v. National Sec. Agency,
493 F.3d 644 (6th Cir. 2007) ...................................................................................................... 9
An v. City of New York,
230 F. Supp. 3d 224 (S.D.N.Y. 2017)....................................................................................... 10
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................. 22
Bano v. Union Carbide Corp.,
361 F.3d 696 (2d Cir. 2004).................................................................................................. 6, 13
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................................ 22, 24
Cacchillo v. Insmed, Inc.,
638 F.3d 401 (2d Cir. 2011) ....................................................................................................... 5
Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,
868 F.3d 104 (2d Cir. 2017)................................................................................................ 14, 15
Charlotte E. v. Safir,
156 F.3d 340 (2d Cir. 1998).................................................................................................... 6, 7
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) .............................................................................................................. 10, 11
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) .................................................................................................................... 9
Dorsett v. County of Nassau,
732 F.3d 157 (2d Cir. 2013).......................................................................................... 23, 24, 25
Farrell v. Burke,
449 F.3d 470 (2d Cir. 2006).................................................................................................. 6, 24
Franklin v. Massachusetts,
505 U.S. 788 (1992) ...................................................................................................... 20, 21, 22
Friends of the Earth v. Laidlaw Environmental Servs. (TOC),
528 U.S. 167 (2000) .............................................................................................................. 5, 19
FW/PBS, Inc. v. Dallas,
493 U.S. 215 (1990) .................................................................................................................... 7
Global Network Commc’ns, Inc. v. City of New York,
458 F.3d 150 (2d Cir. 2006)...................................................................................................... 22
Greenwich Citizens Comm., Inc. v. Cntys. of Warren and Wash. Indus. Dev. Agency,
77 F.3d 26 (2d Cir. 1996).......................................................................................................... 22
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) .................................................................................................................. 15
Heldman on Behalf of T.H. v. Sobol,
962 F.2d 148 (2d Cir. 1992)...................................................................................................... 18
Hunt v. Washington State Apple Advertising Comm’n,
432 U.S. 333 (1977) .................................................................................................................... 6
Knight First Amendment Institute at Columbia University v. Trump,
302 F. Supp. 3d 541 (2018) ................................................................................................ 21, 22

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Laird v. Tatum,
408 U.S. 1 (1972) ............................................................................................................ 9, 10, 18
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...................................................................................................... 14, 18, 19
Marcavage v. City of New York,
689 F.3d 98 (2d Cir. 2012).............................................................................................. 6, 10, 11
Mississippi v. Johnson,
71 U.S. 475 (1866) .................................................................................................................... 20
Morrison v. Nat’l Australia Bank Ltd.,
547 F.3d 167 (2d Cir. 2008)........................................................................................................ 5
New York Civil Liberties Union v. New York City Trans Authority,
684 F.3d 286 (2d Cir. 2012)...................................................................................................... 18
New York State Citizens’ Coalition for Children v. Velez,
629 Fed. App’x 92 (2d Cir. 2015)............................................................................................. 16
Nnebe v. Daus,
644 F.3d 147 (2d Cir. 2011)...................................................................................................... 16
Olsen v. Stark Homes, Inc.,
759 F.3d 140 (2d Cir. 2014)...................................................................................................... 16
Ragin v. Harry Macklowe Real Estate Co.,
6 F.3d 898 (2d Cir. 1993).......................................................................................................... 16
Rent Stabilization Ass’n of NYC v. Dinkins,
5 F.3d 591 (2d Cir. 1993).......................................................................................................... 13
Robinson v. Overseas Military Sales Corp.,
21 F.3d 502 (2d Cir. 1994).......................................................................................................... 5
Rothstein v. UBS AG,
708 F.3d 82 (2d Cir. 2013).................................................................................................. 11, 18
Smith v. Campbell,
782 F.3d 93 (2d Cir. 2015)........................................................................................................ 23
Summers v. Earth Island Institute,
555 U.S. 488 (2009) ............................................................................................................ 6, 7, 8
United Presbyterian Church in the U.S.A. v. Reagan,
738 F.2d 1375 (D.C. Cir. 1984) .................................................................................................. 9
Warth v. Seldin,
422 U.S. 490 (1975) .................................................................................................................. 13
Washington v. Trump,
276 F. Supp. 3d 174 (S.D.N.Y. 2017)................................................................................ passim
Whitmore v. Arkansas,
495 U.S. 149 (1990) .................................................................................................................. 10

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PRELIMINARY STATEMENT
Plaintiff PEN American, Inc. (“PEN American”), an association of writers and media
professionals, claims that defendant President Trump has retaliated against news coverage
critical of his Administration. This Court lacks jurisdiction over plaintiff’s claims because
plaintiff lacks standing, and this Court may not enter plaintiff’s requested relief against the
President. In addition, plaintiff’s amended complaint fails to state a plausible claim for relief.
Plaintiff lacks standing to bring claims on behalf of its members. Plaintiff identifies only
one member by name—Jim Acosta, whose sole claim of injury was redressed months ago.
Otherwise, plaintiff has failed to identify any member, let alone any member with standing in his
or her own right. To the extent that plaintiff has alleged injuries to its members, such injuries are
too subjective and insufficiently imminent to support this Court’s jurisdiction. Plaintiff’s claims
would also require the participation of individual members in this suit.
Plaintiff lacks standing to bring claims on its own behalf. Plaintiff claims it has spent
resources monitoring defendant, but these voluntary expenditures were part of plaintiff’s
established mission and therefore cannot support standing. See Citizens for Responsibility and
Ethics in Washington v. Trump, 276 F. Supp. 3d 174, 191 (S.D.N.Y. 2017). Plaintiff also has not
adequately alleged that such expenditures are traceable to defendant or redressable by this Court.
This Court cannot enter plaintiff’s requested prospective relief: an injunction controlling
the official, discretionary acts of a sitting President and a declaration that his official,
discretionary actions were unlawful. The Supreme Court has repeatedly held that such injunctive
relief would be “extraordinary” and beyond the power of the federal courts.
Plaintiff’s amended complaint fails to state a plausible claim for relief. Plaintiff has
failed to allege that its own speech or the speech of any of its members with standing motivated
defendant to take any action—or even that defendant was aware of any such speech. Plaintiff

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has also failed to adequately allege injury. Its allegations of chilled speech and receipt of
information are too generalized to support relief: plaintiff has not identified any speaker—a
member of plaintiff or not—whose speech has actually been chilled.
The Court should dismiss plaintiff’s amended complaint in its entirety for lack of
jurisdiction and failure to state a claim.
BACKGROUND
Plaintiff PEN American, Inc. (“PEN American”), an association of writers and media
professionals, advocates on behalf of writers targeted for their work. Amended Complaint
(“AC”) ¶ 24, Dkt. No. 38. Plaintiff’s activities include “monitor[ing] the government’s
interactions with writers and journalists and produc[ing] informational content related to its
advocacy work.” Id. Plaintiff’s members allegedly “produce, and plan to produce in the future,
work . . . that is often critical of . . . President [Trump] and his Administration.” Id. ¶ 27.
Plaintiff has identified only one of its members by name, non-party Jim Acosta, a reporter for the
Cable News Network (“CNN”). See id. ¶ 38. Otherwise, plaintiff has not specifically identified
any of its members or their speech.
Plaintiff alleges that defendant has taken or encouraged actions intended to chill speech
critical of himself or his administration. Plaintiff alleges four retaliatory actions taken or
encouraged by defendant. First, plaintiff alleges that, on November 7, 2018, White House Press
Secretary Sarah Huckabee Sanders suspended Acosta’s press pass after Acosta questioned
defendant. 1 AC ¶ 38–44. After Acosta and CNN filed their own lawsuit, CNN v. Trump, No. 18-

1

Similarly, plaintiff alleges that defendant’s subordinates have on two occasions
excluded specific reporters, or reporters from certain organizations, from specific, completed
White House press events. See AC ¶ 34 (certain news organizations denied access to February
24, 2017 press event in then-White House Press Secretary Sean Spicer’s office); ¶ 37 (alleging
non-party non-member Kaitlan Collins excluded from July 25, 2018 Rose Garden event).
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cv-2610 (TJK) (D.D.C.), Acosta’s pass was restored. AC ¶ 44. Acosta and CNN dismissed their
lawsuit. Id.; see Notice of Voluntary Dismissal, CNN v. Trump, No. 18-cv-2610 (TJK) (D.D.C.),
ECF No. 28.
Second, plaintiff alleges that, on August 15, 2018, defendant revoked the security
clearance of non-party non-member John Brennan, the former director of the Central Intelligence
Agency, because Brennan criticized defendant. AC ¶¶ 49, 53.
Third, plaintiff alleges that, on October 11, 2018, the United States Postal Service
(“USPS”) proposed increases in shipping rates, including a proposed increase of 12 percent on
the rate for a delivery service used by the online retailer Amazon.com, Inc. (“Amazon”). Id.
¶ 72. Similarly, plaintiff alleges that the United States Postal Service Task Force (the “USPS
Task Force”) recommended increased rates for certain shipments, which would include the
majority of Amazon’s deliveries. Id. ¶ 73. Plaintiff alleges that USPS and the USPS Task Force
would not have made these proposals had defendant not expressed a desire to punish Amazon for
the reporting of the Washington Post, a newspaper owned by non-party non-member Jeff Bezos,
the Chief Executive Officer and principal shareholder of Amazon. Id. ¶¶ 4, 70, 72–73.
Fourth, plaintiff alleges that, on November 20, 2017, the Department of Justice (“DOJ”)
filed a lawsuit to block the merger of AT&T, Inc. (“AT&T”) and Time Warner Cable (“TimeWarner”), the parent company of CNN, to punish CNN for its critical coverage of defendant’s
administration. AC ¶ 79. Specifically, plaintiff alleges that defendant and his associates made
statements critical of CNN and the proposed merger. See id. ¶¶ 75–77. Plaintiff further alleges
that DOJ had not filed a lawsuit to block a vertical merger similar to the proposed merger of
CNN and Time-Warner since the 1970s, and that the lawsuit was unsuccessful. Id. ¶¶ 79, 81.
Other than these alleged actions, plaintiff alleges in broad terms that defendant has

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criticized the press and has threatened—although not followed through on—various possibly
retaliatory actions. These other alleged actions fall into three categories. First, plaintiff alleges
that defendant’s subordinates have suggested possible future regulatory actions against Google,
Facebook, and other unspecified social media companies. AC ¶¶ 83–85. Second, plaintiff
alleges that defendant criticized the National Broadcasting Company (“NBC”) and suggested
that the broadcast licenses of network news corporations should be revoked. See id. ¶¶ 88–91.
Third, plaintiff alleges that defendant and his associates have threatened to deny journalists
access to White House press conferences and news events. Id. ¶¶ 33, 35–36, 41.
On October 16, 2018, plaintiff filed its complaint initiating the present action.
Complaint, Dkt. No. 1. On December 20, 2018, defendant informed the Court of the bases for
his anticipated motion to dismiss. Letter dated December 20, 2018, Dkt. No. 24. On February 6,
2019, plaintiff filed its amended complaint. See AC. In the amended complaint, plaintiff asserts
three claims under the First Amendment. First, plaintiff claims that defendant’s alleged actions
amount to retaliation for critical reporting. Id. ¶¶ 115–23. Second, plaintiff claims that
defendant’s alleged actions amount to retaliatory threats. Id. ¶¶ 124–30. Third, plaintiff claims
defendant’s alleged actions violate their right to receive information. Id. ¶¶ 131–36. Plaintiff
seeks declaratory and injunctive relief, namely a declaration that defendant’s allegedly retaliatory
actions violated the First Amendment and an injunction forbidding defendant from directing any
subordinate to take any official action in retaliation for speech critical of defendant’s
administration. See id. Prayer for Relief.
ARGUMENT
The Court should dismiss plaintiff’s amended complaint for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a plausible claim upon which
relief can be granted under Fed. R. Civ. P. 12(b)(6).
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I.

THE COURT LACKS SUBJECT MATTER JURISDICTION OVER
PLAINTIFF’S CLAIMS
On a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure,

the plaintiff carries the burden of establishing that the Court has subject matter jurisdiction to
adjudicate her complaint. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d
Cir. 1994). “The court must take all facts alleged in the complaint as true and draw all
reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences favorable to the party asserting
it.” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation
marks, citation, and brackets omitted).
A. Plaintiff Lacks Standing
The Court should dismiss plaintiff’s complaint for lack of jurisdiction because plaintiff
has failed to establish Article III standing. “[S]tanding is a federal jurisdictional question
determining the power of the court to entertain the suit.” Cacchillo v. Insmed, Inc., 638 F.3d
401, 404 (2d Cir. 2011) (internal quotation marks omitted).
[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has
suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth v. Laidlaw Environmental Servs. (TOC), 528 U.S. 167, 181–82 (2000).
“[A] plaintiff must demonstrate standing for each claim and form of relief sought.” Cacchillo,
638 F.3d at 404.
1. Plaintiff Lacks Associational Standing to Bring Claims On Behalf of Its Members
Plaintiff lacks standing to bring claims on behalf of any its members—or any nonmember allegedly targeted by defendant. “Federal courts as a general rule allow litigants to

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assert only their own legal rights and interests, and not the legal rights and interests of third
parties.” Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006). Associational standing is a
“narrow exception” to the general rule against third-party standing that allows an association to
sue on behalf of its members. Bano v. Union Carbide Corp., 361 F.3d 696, 715 (2d Cir. 2004).
To establish associational standing, a plaintiff must show that:
(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.
Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977); accord Bano,
361 F.3d at 713. In addition, unless all of the members of an organization are affected by the
challenged activities, an organization must name its affected members to establish standing.
Summers v. Earth Island Institute, 555 U.S. 488, 498–99 (2009). In the present case, plaintiff
fails the first and third prongs of the Hunt test.
Plaintiff fails the first prong of the Hunt test, including the Summers naming requirement,
because it has failed to identify any member with standing. Plaintiff’s amended complaint
identifies only one of its members by name, Jim Acosta, a reporter for CNN. See AC ¶¶ 33, 35,
38. Acosta does not have standing to sue in his own right because “[a] plaintiff seeking
injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement.”
Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998); see Marcavage v. City of
New York, 689 F.3d 98, 103 (2d Cir. 2012). The only injury Acosta is alleged to have suffered is
the November 7, 2018, revocation of his press pass. See AC ¶¶ 38–39. Acosta brought his own
lawsuit challenging this revocation in the United States District Court for the District of
Columbia. See CNN v. Trump, No. 18-cv-2610 (TJK) (D.D.C.); AC ¶ 42. On November 19,
2018, after the entry of a temporary restraining order in that case, Acosta’s pass was restored,

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and Acosta voluntarily dismissed his case. See Docket Entry dated Nov. 16, 2018, CNN v.
Trump, No. 18-cv-2610 (TJK) (D.D.C.) (noting grant of temporary restraining order); Notice of
Voluntary Dismissal, CNN v. Trump, No. 18-cv-2610 (TJK) (D.D.C.), ECF No. 28, AC ¶¶ 43–
44. Accordingly, Acosta currently lacks an injury sufficient to support standing. 2 The
temporary revocation of a press pass—already the subject of a prior lawsuit brought and
dismissed by the actual holder of the pass—cannot establish standing for Acosta or plaintiff to
seek declaratory or injunctive relief in the present case. See Deshawn, 156 F.3d at 344.
Other than Acosta, plaintiff has failed to identify by name any of its members allegedly
affected by defendant’s actions. This alone is fatal to plaintiff’s associational standing. The
Supreme Court has repeatedly held that an organization asserting associational standing must
name “at least one identified member” with standing. Summers, 555 U.S. at 498; see FW/PBS,
Inc. v. Dallas, 493 U.S. 215, 235 (1990) (explaining that affidavit was deficient because it failed
to identify individuals). “This requirement of naming the affected members has never been
dispensed with in light of statistical probabilities, but only where all the members of the
organization are affected by the challenged activity.” Summers, 555 U.S. at 498–99. Except for
Acosta—who lacks standing—plaintiff has not identified any specific member who was the
alleged target of any action by defendant, whose speech was chilled or affected by defendant’s
alleged actions, or who failed to receive information or speech as a result of defendant’s alleged
actions. Moreover, the “all-members” exception to the Summers naming requirement does not
apply here. Plaintiff alleges that a research firm surveyed its members regarding the
consequences of defendant’s alleged actions. AC ¶ 96. According to plaintiff’s own survey,

2

Acosta also lacks standing because a favorable decision by this Court would not redress
the revocation of his press pass, which was returned months ago.
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most of plaintiff’s members allegedly have not been affected by defendant’s actions, and fortyeight percent do not believe they are at risk. See id. The Summers naming requirement therefore
applies in full here, and plaintiff cannot establish associational standing without identifying, by
name, at least one specific member with standing. See Summers, 555 U.S. at 498–99.
Even if the Summers naming requirement did not apply, plaintiff would still fail the first
prong of the Hunt test because plaintiff has failed to allege that its members suffered injuries-infact traceable to defendant’s actions and redressable by the Court. With respect to injury,
plaintiff alleges in broad terms that some of its members’ speech and receipt of information have
been chilled by defendant’s actions. See AC ¶¶ 93–101. For instance, plaintiff alleges that its
survey found that “31 percent [of plaintiff’s members] [have] avoided posting, writing, or
speaking on a particular topic due to concern about personal or professional repercussions.” AC
¶ 96 (internal quotation marks omitted). 3 Plaintiff further alleges that such chilling effects have
“jeopardize[d] [plaintiff’s members’] access to information and commentary about [defendant’s]
Administration.” AC ¶ 101; see AC ¶¶ 99–101. However, except for Acosta, plaintiff has not
alleged any particular action taken against plaintiff’s members nor alleged that any source of
information has altered its speech in any particular way. Except for Acosta, each of defendant’s
actions alleged in the complaint are directed at non-member non-parties, none of whom has
allegedly curtailed its speech. As a result, plaintiff’s allegations of chilling of its members’

3

Plaintiff also alleges that its survey found that “1 percent [of plaintiff’s members have]
been fired or laid off because of the Defendant’s actions; 2 percent [have] been demoted,
replaced, or denied an assignment because of the Defendant’s actions; [and] 4 percent [have]
been asked to make changes to a piece because their editor or publisher wanted to avoid
controversy arising from Defendant’s reactions.” AC ¶ 96. Plaintiff does not provide any
additional allegations elaborating on these alleged instances of chilling, which are each allegedly
the result of actions taken by plaintiff’s members’ employers, rather than defendant. These
allegations fail to establish standing for the same reasons as plaintiff’s more generalized
allegations of chilling.
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speech and receipt of information fail to establish standing, first because any such chilling is
subjective and, second, because it is insufficiently imminent.
First, the Supreme Court has repeatedly held that allegations of subjective chill, in the
absence of concrete actions taken against a plaintiff, are insufficient to establish standing for
purposes of a First Amendment claim against the Executive branch. In Laird v. Tatum, 408 U.S.
1 (1972), plaintiffs challenged the United States Army’s alleged surveillance of domestic civilian
political activity in the late 1960s. Id. at 2–5. But plaintiffs did not allege any specific action
taken against them and instead based their claims on an alleged chilling effect created by their
disagreement with the Army’s activities and the possibility of future actions that might be taken
against them. See id. at 9, 13. The Supreme Court concluded that the federal courts lacked
jurisdiction over plaintiffs’ claims. Id. at 10, 13–15. In drawing a line between justiciable cases
involving a First Amendment chilling effect and those cases that do not present a justiciable
controversy, the Court observed that
[i]n none of [the justiciable] cases . . . did the chilling effect arise merely from the
individual’s knowledge that a governmental agency was engaged in certain
activities or from the individual’s concomitant fear that, armed with the fruits of
those activities, the agency might in the future take some other and additional action
detrimental to that individual. Rather, in each of [the justiciable] cases, the
challenged exercise of governmental power was regulatory, proscriptive, or
compulsory in nature, and the complainant was either presently or prospectively
subject to the regulations, proscriptions, or compulsions that he was challenging.
Id. at 11. The Court grounded its analysis in separation-of-powers principles, observing that a
contrary result “would have the federal courts as virtually continuing monitors of the wisdom
and soundness of Executive action; such a role is appropriate for the Congress.” Id. at 15. The
Supreme Court and courts of appeals have since reaffirmed Laird’s holding. See Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 417–18 (2013) (citing ACLU v. National Sec. Agency, 493
F.3d 644, 661–62 (6th Cir. 2007)); United Presbyterian Church in the U.S.A. v. Reagan, 738

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F.2d 1375, 1378 (D.C. Cir. 1984) (“[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.”
(quotation marks omitted)).
Laird controls the present case. Like the Laird plaintiffs, plaintiff has not alleged that its
members are “presently or prospectively subject to the . . . proscriptions[] or compulsions that
[it] is challenging.” Laird, 408 U.S. at 11. Instead, plaintiff’s claims rest on its members’
speculative fears of future actions and their disapproval of defendant’s past actions—none of
which plaintiff has alleged was unlawful, apart from any alleged retaliatory taint. Under Laird,
such subjective concerns are insufficient to establish standing.
Second, the injuries alleged by plaintiff are insufficiently imminent to support standing
for declaratory or injunctive relief. “A plaintiff seeking injunctive or declaratory relief cannot
rely on past injury to satisfy the injury requirement . . . .” Deshawn, 156 F.3d at 344. Nor can
mere “[a]llegations of possible future injury . . . satisfy the requirements of Art. III.” Whitmore
v. Arkansas, 495 U.S. 149, 158 (1990). Instead, “[t]o obtain prospective relief, such as a
declaratory judgment or an injunction, a plaintiff must show, inter alia, a sufficient likelihood
that he or she will again be wronged in a similar way. That is, a plaintiff must demonstrate a
certainly impending future injury.” Marcavage, 689 F.3d at 103 (internal quotation marks,
brackets, and citation omitted); see City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)
(“[Injunctive relief] is unavailable absent a showing of irreparable injury, a requirement that
cannot be met where there is no showing of any real or immediate threat that the plaintiff will be
wronged again—a likelihood of substantial and immediate irreparable injury.” (internal
quotation marks omitted)); Whitmore, 495 U.S. at 158; An v. City of New York, 230 F. Supp. 3d
224, 231 (S.D.N.Y. 2017) (Schofield, J.) (“Declaratory judgment, like an injunction, is a form of

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prospective relief that requires a plaintiff to show ‘a sufficient likelihood that he [or she] will
again be wronged in a similar way.’” (quoting Marcavage, 689 F.3d at 103)).
Plaintiff in the present case has failed to establish that its members, including Acosta,
face any “certainly impending future injury,” and so cannot seek declaratory or injunctive relief.
Marcavage, 689 F.3d at 103 (internal quotation marks omitted). Plaintiff’s allegations of chill
are too vague and generalized to support a “likelihood of substantial and immediate irreparable
injury” to any of its members. Lyons, 461 U.S. at 111. 4 Indeed, some of plaintiff’s allegations
undermine any assertion of future First Amendment harms. Plaintiff’s members allegedly “plan
to produce in the future, work . . . that is often critical of . . . [defendant] and his Administration.”
AC ¶ 27. Plaintiff’s amended complaint also appears to acknowledge that any alleged chill on
speech has been or could be “braved and overcome by diligent and courageous reporters.” 5 Id.
¶ 94. In light of these allegations—and in the absence of any specific allegations of imminent
future action by defendant—plaintiff has failed to establish that any of its members have
standing to seek prospective relief.
Plaintiff’s amended complaint also fails to establish that any of its members satisfy the
traceability requirement of standing. “The traceability requirement for Article III standing
means that the plaintiff must demonstrate a causal nexus between the defendant’s conduct and
[plaintiff’s] injury.” Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (internal quotation
marks omitted). Plaintiff’s allegations of chilling are too subjective and generalized to establish

4

With respect to plaintiff’s allegations of chilling based on adverse employer decisions,
plaintiff has not alleged any basis on which to conclude that such actions are likely to occur
again in the future. See AC ¶ 96.
5

To the extent plaintiff is asserting the costs of overcoming a subjective chilling effect as
the basis for its claims, plaintiff lacks standing for the same reasons allegations of an actual
subjective chilling effect fail to establish standing.
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a causal nexus with any alleged action taken by defendant. Except for Acosta, none of plaintiff’s
members—none of whom are identified—are alleged to have been the target of any particular
action by defendant. In addition, some of the chilling effects alleged by plaintiff are the direct
product of its members’ employers’ decisions, with no additional allegations regarding how any
employer’s decision could be traced to defendant. See AC ¶ 96. Moreover, plaintiff has not
alleged that any non-member allegedly targeted by defendant, or Acosta, has altered its speech in
any way. Specifically, plaintiff has not alleged that Acosta, Brennan, Amazon, the Washington
Post, CNN, AT&T, Time-Warner, or NBC have altered their speech as a result of defendant’s
actions. Accordingly, plaintiff has failed to establish the necessary link between alleged chilling
effects on its members—as speakers or as recipients of information—and any action on
defendant’s part.
Plaintiff’s members also fail to satisfy the third element of standing, redressability. To
satisfy the redressability requirement, it must be “likely, as opposed to merely speculative, that [a
plaintiff’s] injury will be redressed by a favorable decision.” Laidlaw, 528 U.S. at 181. The
effects of any declaratory or injunctive relief here would be speculative because plaintiff has not
explained in sufficient detail how its members’ speech or receipt of information has been
affected by any particular action taken by defendant that might be enjoined or declared unlawful.
For instance, some of the generalized chilling effects alleged by plaintiff were the product of
decisions made by plaintiff’s members’ employers. See AC ¶ 96. Plaintiff’s amended complaint
provides no basis on which to conclude that plaintiff’s members’ employers would make
different employment or editorial decisions were this Court to grant plaintiff’s requested relief.
Moreover, Federal Rule of Civil Procedure 65(d)(1)(B)-(C) requires that every injunction “state
its terms specifically; and describe in reasonable detail . . . the . . . acts restrained or required.”

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Plaintiff’s amended complaint does not provide sufficiently detailed allegations for this Court to
craft an injunction complying with Rule 65 that is also likely to redress any particularized injury
to plaintiffs’ members. In sum, plaintiff has failed to establish that any of its members have
standing.
Even were plaintiff to establish that some of its members had standing, it would also fail
the third prong of Hunt’s associational standing test, because “‘the fact and extent’ of the injury
that gives rise to [its] claims for injunctive relief ‘would require individualized proof.’” Bano,
361 F.3d at 714 (quoting Warth v. Seldin, 422 U.S. 490, 515–16 (1975)); accord Rent
Stabilization Ass’n of NYC v. Dinkins, 5 F.3d 591, 596–97 (2d Cir. 1993). The injury upon
which plaintiff’s claims ostensibly rest is an alleged chilling of speech. But plaintiff’s amended
complaint points out how these alleged effects vary across differently situated journalists. See
Compl. ¶ 97 (contrasting “large companies [that] have significant resources . . . but . . . also
provide . . . more opportunities for using regulatory measures as a form of retaliation” with
“[s]maller outlets, independent media, freelancers, [and] other more vulnerable populations of
writers”). Under plaintiff’s own theory of the case, determining the fact and extent of any
alleged chilling will require individualized proof concerning, among other things, the size of a
given organization that employs or speaks to a particular member of plaintiff; whether the
member’s employer or source of information has been allegedly targeted by defendant; and the
member’s speech and receipt of information. Plaintiff has failed to establish that it could litigate
this case without the participation of specific members. Accordingly, plaintiff lacks
associational standing.
2. Plaintiff Lacks Organizational Standing to Bring Claims On Its Own Behalf
Plaintiff lacks standing to bring any claims on its own behalf. To bring claims on its own
behalf, plaintiff bears the burden of establishing organizational standing by showing: “(i) an
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imminent injury in fact to itself as an organization (rather than to its members) that is distinct and
palpable; (ii) that its injury is fairly traceable to [allegedly retaliatory actions]; and (iii) that a
favorable decision would redress its injuries.” Centro de la Comunidad Hispana de Locust
Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (“Centro”) (internal quotation
marks omitted). Plaintiff faces a heightened burden to establish the latter two elements because
it is challenging Executive actions allegedly taken or threatened against third parties. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992). Plaintiff has failed to establish any of the
necessary elements of organizational standing.
First, the injuries plaintiff has allegedly suffered as an organization are insufficient to
support standing. Plaintiff’s amended complaint alleges no actions taken or threatened against
itself as an organization. Plaintiff has not alleged any violation of its right to free speech. On the
contrary, plaintiff speech allegedly remains robust. See, e.g., AC ¶ 111. Plaintiff alleges it “has
held large events and protests, initiated widely circulated petitions, released detailed research
reports, and published a number of blog posts, articles, and statements” concerning defendant,
his actions, and his Administration. Id. ¶ 110.
Plaintiff characterizes its expenditures on such activities, including its alleged redirection
of funds from overseas operations to domestic operations, as harms to plaintiff as an
organization. See AC ¶¶ 102–11. These alleged expenditures and changes to plaintiff’s
budgeting priorities are insufficient to support standing. In Centro, the Second Circuit explained
that “a perceptible impairment of an organization’s activities is necessary for there to be an
injury in fact.” Centro, 868 F.3d at 110 (internal quotation marks omitted). Specifically, an
organization can establish injury “where an organization diverts its resources away from its
current activities” or “establishes that it spent money to combat activity that harms its

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organization’s core activities.” Id. at 111 (internal quotation marks omitted). Thus, in Centro, a
plaintiff organization established standing by showing it would need to spend money (otherwise
spent elsewhere) responding to a local ordinance dispersing day laborers the plaintiff sought to
organize. See id. at 110–11. The ordinance impaired the organization’s activities both by
dispersing laborers and through the possibility of erroneous enforcement of the ordinance against
the plaintiff’s members. Id. Responding to local ordinances was not part of the organization’s
“current activities.” Id. In short, in Centro the plaintiff was forced to expend resources to
continue in its core mission (organizing day laborers) which was impaired by the ordinance it
challenged (dispersing day laborers); that injury was sufficient to support standing.
In the present case, plaintiff’s increased domestic advocacy may be a response to
defendant’s Administration as a political matter, but it is not a response to defendant’s alleged
actions in the practical terms of Centro. Specifically, plaintiff has not alleged that any of
defendant’s alleged actions have perceptibly impaired plaintiff’s established activities, which
include “monitor[ing] the government’s interactions with writers . . . and produc[ing]
informational content related to its advocacy work” Id. ¶ 24. On the contrary, plaintiff alleges it
has increased precisely these same established activities in response to defendant’s actions. See
AC ¶ 111. Such increases are not a response to a practical obstacle put in the way of plaintiff’s
activities and therefore do not amount to an injury establishing standing under Centro.
The precedents undergirding Centro reinforce this conclusion. In Havens Realty Corp. v.
Coleman, 455 U.S. 363 (1982), the Supreme Court held that a plaintiff organization had standing
because the defendant apartment complex owner’s racial steering practices impaired the
plaintiff’s ability to provide counseling and referral services to promote equal access to housing.
Id. at 378–79. In Havens Realty, like Centro, standing was based on practical interference with a

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plaintiff’s established activities, unlike in the present case where plaintiff has not alleged any
practical interference with its established activities. Similarly, in Nnebe v. Daus, 644 F.3d 147
(2d Cir. 2011), the Second Circuit held that the New York Taxi Workers Alliance (“NYTWA”)
had standing to challenge New York City’s policy of automatically suspending taxi drivers
arrested on criminal charges because NYTWA suffered a “perceptible opportunity cost” when it
assisted suspended drivers, could have allocated its resources elsewhere, and “allocated
resources to assist drivers only when [a defendant] initiated proceedings against one of its
members.” Id. at 156–58; see also New York State Citizens’ Coalition for Children v. Velez, 629
Fed. App’x 92, 94 (2d Cir. 2015) (summ. order) (applying Nnebe and remanding for further
proceedings because plaintiff had failed to establish “perceptible opportunity cost” associated
with the program plaintiff sought to challenge); Olsen v. Stark Homes, Inc., 759 F.3d 140, 158
(2d Cir. 2014) (diversion of resources from advocacy and counseling activities conferred
organizational standing); Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir.
1993) (plaintiff had standing where “[plaintiff] established that its activities related to identifying
and counteracting the Defendants’ advertising practices detracted [sic] the attention of
[plaintiff’s] staff members from their regular tasks” (internal quotation marks and brackets
omitted) (second alteration in original)). Plaintiff in the present case has not adequately alleged
that it paid a “perceptible opportunity cost” because its alleged activities in response to
defendant’s actions do not depart from or impair its established operations and mission. Nnebe,
644 F.3d at 157; compare AC ¶ 24 (describing plaintiff’s mission and activities) with id. ¶¶ 110–
11 (describing same activities in furtherance of plaintiff’s mission in response to defendant’s
alleged actions).
This Court’s decision in Citizens for Responsibility and Ethics in Washington v. Trump,

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276 F. Supp. 3d 174 (S.D.N.Y. 2017) (“CREW”), further demonstrates why plaintiff has failed to
adequately allege injury on the basis of its expenditures. In CREW, the Center for Responsibility
and Ethics in Washington (“CREW”), a government ethics organization, sued defendant
President Trump for alleged violations of the Emoluments Clauses in connection with monies
received through defendant’s businesses. CREW, 276 F. Supp. 3d at 181–83. As a basis for
organizational standing, CREW asserted similar injuries to those asserted by plaintiff here,
namely the diversion of resources from “mission-critical work” to efforts to “to identify and
counteract Defendant’s alleged [actions], including through . . . the hiring of two additional
senior attorneys, as well as its efforts to explain the alleged violations to stakeholders, including
the press, and assist and counsel others in counteracting Defendant’s alleged violations.” Id. at
189 (internal quotation marks omitted); compare id. with AC ¶¶ 102–111. Applying Centro and
similar precedents, this Court held that CREW had failed to adequately allege an injury in fact:
CREW fails to allege either that Defendant’s actions have impeded its ability to
perform a particular mission-related activity, or that it was forced to expend
resources to counteract and remedy the adverse consequences or harmful effects of
Defendant’s conduct. . . . CREW . . . may have diverted some of its resources to
address conduct it may consider unconstitutional, but which has caused no legally
cognizable adverse consequences, tangible or otherwise, necessitating the
expenditure of organizational resources.
...
CREW’s decision to investigate and challenge Defendant’s actions . . . at the
expense of its other initiatives reflects a choice about where and how to allocate its
resources—one that almost all organizations with finite resources have to make.
CREW, 276 F. Supp. 3d at 190–91. The reasoning of CREW applies directly to the present case.
Like CREW, the present plaintiff has not alleged that it was forced to expend any resources to
remedy tangible adverse consequences to its operations, and instead has alleged a voluntary
expansion of established activities. This is insufficient to establish the injury necessary for
organizational standing.

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To the extent plaintiff has alleged other injuries to itself as an organization, they are also
insufficient to support standing. Plaintiff has alleged that its First Amendment right to receive
information has been impaired. See AC ¶¶ 112–14. However, plaintiff has not identified any
specific source from which its receipt of information has actually been disrupted. See id. More
broadly, plaintiff has failed to adequately allege that any particular speaker has actually been
chilled. See infra. To the extent plaintiff has alleged any source’s speech has been chilled, such
subjective chilling cannot support standing—for a source as speaker or plaintiff as listener—
under Laird v. Tatum, 408 U.S. 1 (1972). See supra Section I.A.1.
Plaintiff has also failed to adequately allege that it satisfies the latter two elements of
standing, traceability and redressability. These elements are “ordinarily substantially more
difficult to establish” in a suit like the present one challenging government action against a nonparty because they “ordinarily hinge on the response of the regulated (or regulable) third party to
the government action or inaction—and perhaps on the response of others as well.” Lujan, 504
U.S. at 562 (internal quotation marks omitted). With respect to traceability, like an individual
plaintiff, an organizational plaintiff “must demonstrate a causal nexus between the defendant’s
conduct and [plaintiff’s] injury.” Rothstein, 708 F.3d at 91 (internal quotation marks omitted);
see Heldman on Behalf of T.H. v. Sobol, 962 F.2d 148, 156 (2d Cir. 1992) (elaborating on this
requirement); see also New York Civil Liberties Union v. New York City Transit Authority, 684
F.3d 286, 294 (2d Cir. 2012) (describing standing requirements for organizational plaintiff and
individual plaintiff). Plaintiff’s amended complaint does not contain allegations sufficient to
trace any harm to PEN American as an organization to challenged actions taken by defendant.
The alleged retaliatory actions identified in plaintiff’s complaint all target non-parties who, with
the exception of Acosta, are not identified as members of plaintiff or as having any particular

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connection to plaintiff. Moreover, plaintiff has failed to identify any particular non-party from
whom plaintiff allegedly receives information who has altered its speech in a manner traceable to
defendant’s actions. Plaintiff has failed to establish any nexus between itself as an organization
and defendant’s alleged retaliatory actions.
With respect to redressability, plaintiff has failed to allege that any injuries to itself as an
organization would be redressed by the relief it seeks in the present case. Plaintiff must establish
that “it is likely, as opposed to merely speculative, that [its] injury will be redressed by a
favorable decision.” Laidlaw, 528 U.S. at 181. But the actions plaintiff requests this Court to
declare unlawful or enjoin did not concern plaintiff as an organization, and plaintiff has not
alleged how any requested relief would redress its alleged injuries. Plaintiff has not alleged that,
were it to prevail in this case, it would spend fewer resources to monitor defendant’s
Administration—after all, “monitor[ing] the government’s interactions with writers and
journalists and produc[ing] informational content related to its advocacy work” constitutes
plaintiff’s established activities. AC ¶ 24; see id. ¶¶ 102–11. Similarly, although plaintiff has
alleged that it receives information from non-parties allegedly targeted by defendant, it has not
alleged how any particular non-party has reduced or changed its coverage of defendant or his
administration. In the absence of such allegations, plaintiff cannot establish a likelihood that
relief in this case would affect its receipt of information. See Lujan, 504 U.S. at 562 (explaining
how redressability “hinge[s]” on the response of non-parties when plaintiff is challenging
governmental action against non-party). Moreover, any injunction sought by plaintiff would
need to “state its terms specifically; and describe in reasonable detail . . . the . . . acts restrained
or required.” Fed. R. Civ. P. 65(d)(1)(B)-(C). Plaintiff’s amended complaint cannot support the
entry of an injunction that complies with Rule 65 and is likely to redress any injury to plaintiff as

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an organization because plaintiff’s allegations do not explain how plaintiff as an organization
was affected by particular actions taken by defendant. In sum, plaintiff cannot establish any of
the elements of organizational standing and therefore cannot bring claims on its own behalf.
B. The Court Lacks Jurisdiction to Grant Declaratory or Injunctive Relief Against
the President in This Context
Plaintiff’s amended complaint should also be dismissed because this Court lacks
jurisdiction to enter the relief sought by plaintiff against the President. The Supreme Court has
repeatedly held that, in general, the federal courts may not enter injunctive relief against the
President in the context of his official, non-ministerial, duties. In Mississippi v. Johnson, 71 U.S.
475 (1866), the State of Mississippi sued to prevent President Andrew Johnson from enforcing
the post-Civil War Reconstruction Acts. Id. at 497–98. The Supreme Court held that no
injunction could lie against the President except possibly when a plaintiff seeks to compel or
restrain a ministerial act: “one in respect to which nothing is left to discretion.” Id. at 498–99.
More recently, in Franklin v. Massachusetts, 505 U.S. 788 (1992), a district court entered
injunctive relief directing the President to recalculate the number of Representatives apportioned
on the basis of the 1990 Census and to transmit the new calculation to Congress. Id. at 791. In
reversing the district court’s order, a plurality6 of the Supreme Court explained that, although the
“[Supreme Court has] left open the question whether the President might be subject to a judicial
injunction requiring the performance of a purely ministerial duty[,] . . . in general [the Supreme
Court] has no jurisdiction of a bill to enjoin the President in the performance of his official
duties.” Id. at 802–03 (citations and quotation marks omitted); see also id. at 802 (“[T]he

6

Justice Scalia agreed with the four Justices of the Franklin plurality that the courts
could not enter injunctive relief against the President in the context of the performance of his
official duties. But in Justice Scalia’s view, this result—and his conclusion that declaratory
relief also did not lie against the President—disposed of the entire case. See id. at 824–29.
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District Court’s grant of injunctive relief against the President himself is extraordinary, and
should have raised judicial eyebrows.”). The separation of powers principles that prevent the
federal courts from enjoining the President’s official acts also prevent them from entering
declaratory relief against the President:
Permitting declaratory or injunctive relief against the President personally would
not only distract him from his constitutional responsibility to “take Care that the
Laws be faithfully executed,” but, as more and more disgruntled plaintiffs add his
name to their complaints, would produce needless head-on confrontations between
district judges and the Chief Executive.
Id. at 828 (Scalia, J., concurring) (quoting U.S. Const., Art. II, § 3).
The general rule of Mississippi and Franklin applies to the present case. Plaintiff does
not seek to enjoin or declare unlawful defendant’s ministerial acts—acts where nothing is left to
discretion. Instead, plaintiff’s requested relief concerns a broad category of actions that
expressly includes “official action[s]” and that would extend beyond purely ministerial duties.
See AC Prayer for Relief. For example, as plaintiff has framed its case, if defendant decided to
cancel a press conference aboard Air Force One and exclude journalists from the plane because
he anticipated negative coverage and did not want to speak about a difficult topic, he would be in
violation of this Court’s order: he would have used the power of the federal government “to
. . . constrain[] speech critical of his Administration.” Id. The Constitution’s separation of
powers allows the Executive to make such decisions about his interactions with the press without
judicial interference.
This Court’s recent decision in Knight First Amendment Institute at Columbia University
v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018), is not to the contrary. In dicta, 7 the Knight

7

In Knight, the Court did not ultimately enter any injunctive relief and instead entered
declaratory relief. Knight, 302 F. Supp. 3d at 579.
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Court applied a balancing test to conclude that an injunction directing the specific, ministerial act
of “unblocking” individual plaintiffs on Twitter, a social media website, was within the Court’s
jurisdiction. Knight, 302 F. Supp. 3d at 577–79. By contrast, plaintiff in the present case seeks
an open-ended injunction that would declare unlawful an indeterminate category of actions,
including official, discretionary actions. As such, the injunction sought by plaintiff would be
“extraordinary” and is beyond this Court’s jurisdiction. Franklin, 505 U.S. at 802.
II.

PLAINTIFF’S COMPLAINT FAILS TO STATE A PLAUSIBLE CLAIM
UPON WHICH RELIEF CAN BE GRANTED
A. Legal Standards
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court

assumes the truth of all facts asserted in the complaint and draws all reasonable inferences from
those facts in favor of the plaintiff. See Global Network Commc’ns, Inc. v. City of New York,
458 F.3d 150, 154 (2d Cir. 2006). To survive, “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For a claim to
be plausible, a complainant’s “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555.
B. Plaintiff Fails to State a Plausible Claim for Relief for Violations of the First
Amendment
Plaintiff’s complaint should be dismissed even if plaintiff could overcome jurisdictional
impediments. Although plaintiff styles its claims as three separate claims of violations of the
First Amendment, all three counts challenge defendant’s allegedly retaliatory actions. See
Compl. ¶¶ 115–36. In addition, plaintiff has not alleged that any action taken or threatened by
defendant is unlawful, apart from alleged retaliatory taint. Plaintiff’s claims are thus properly
understood as First Amendment retaliation claims. See Greenwich Citizens Comm., Inc. v.
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Cntys. of Warren and Wash. Indus. Dev. Agency, 77 F.3d 26, 31–32 (2d Cir. 1996) (explicating
“crucial distinction between retaliatory First Amendment claims and affirmative First
Amendment claims (e.g., facial challenges to statutes, challenges to prior restraints)”).
Plaintiff has failed to plausibly allege the elements of a First Amendment retaliation
claim. “To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right
protected by the First Amendment; (2) the defendant’s actions were motivated or substantially
caused by [plaintiff’s] exercise of that right; and (3) the defendant’s actions caused him some
injury.” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (internal quotation marks omitted)
(alteration in original) (quoting Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013)
(per curiam)). Even assuming that plaintiff may raise claims on behalf of its members—which it
lacks standing to do, see supra—plaintiff has failed to adequately plead the second or third
elements of any First Amendment retaliation claim.
With respect to the second element of a First Amendment retaliation claim, plaintiff has
failed to plausibly allege that its speech or the speech of any of its members, except for Acosta,
motivated defendant to take any action. Plaintiff’s amended complaint is devoid of allegations
that defendant knew of or took any action in response to plaintiff’s own speech. See generally
AC. Although plaintiff does allege that some of its members work at or with organizations
whose speech allegedly motivated defendant to take actions, see AC ¶ 25, plaintiff’s amended
complaint does not describe any of its members’ speech in sufficient detail to adequately allege
that any particular member’s speech motivated defendant to take any action (except for Acosta). 8
Plaintiff’s allegations that non-parties’ speech motivated defendant to take certain actions are

8

There is no authority for the proposition that the speech of a news organization can be
ascribed to its employees or partners when neither those employees or partners nor their roles in
connection with the organization have been identified.
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irrelevant to plaintiff’s claims: it cannot raise claims on behalf of non-member non-parties, such
as Jeff Bezos or NBC. See Farrell, 449 F.3d at 494. Plaintiff’s amended complaint omits the
second element of a First Amendment retaliation claim.
With respect to the third element of a First Amendment retaliation claim, plaintiff has
failed to allege that Defendant’s actions caused it or its members any injury that could form the
basis of a First Amendment retaliation claim. The Second Circuit has explained that a plaintiff
has adequately alleged injury for purposes of a First Amendment retaliation claim “if he can
show either that his speech has been adversely affected by the government retaliation or that he
has suffered some other concrete harm.” Dorsett, 732 F.3d at 160. Plaintiff has not adequately
alleged injury under either prong.
First, Plaintiff has not alleged that its speech has been adversely affected by defendant’s
actions. On the contrary, plaintiff has alleged that its speech about defendant has increased. See,
e.g., AC ¶ 111. And while plaintiff alleges in conclusory terms that its members’ speech has
been adversely affected, its allegations do not “nudge[] [its] claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570. Plaintiff’s amended complaint does not
allege that (or how) any particular member’s speech has been chilled, nor does it allow an
inference that defendant’s actions caused any such chilling. Instead, plaintiff’s amended
complaint reports generalized survey results of its members’ “belie[f] [that] public criticism of
the current Administration might put them at risk” and of adverse consequences to plaintiff’s
members arising from employment decisions made by non-parties or from members’ “concern
about personal or professional repercussions.” AC ¶ 96 (emphasis added). 9 Such allegations are

9

Plaintiff alleges that “[its] members plan to produce in the future, work . . . that is often
critical of . . . President [Trump] and his Administration,” further undermining plaintiff’s
equivocal allegations of chilling. AC ¶ 27.
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insufficient to establish the necessary causation and injury components of a First Amendment
retaliation claim.
Second, plaintiff’s amended complaint contains no plausible allegations of other concrete
harms suffered by plaintiff or its members. In Dorsett, the Second Circuit listed examples of
concrete harms, such as the loss of a government contract, additional security at a border
crossing, revocation of a building permit, and a refusal to enforce zoning laws. See Dorsett, 732
F.3d at 160 (collecting cases). Plaintiff’s choice to allocate more resources to its existing
domestic operations is not a comparably concrete harm. Instead, it is “a choice about where and
how to allocate its resources . . . that almost all organizations with finite resources have to
make.” CREW, 276 F. Supp. 3d at 191. In addition, plaintiff has not plausibly alleged that its or
its members’ receipt of information has been impaired because it has failed to allege that any
particular source of information has actually been chilled. See, e.g., AC ¶¶ 99–101 (alleging that
defendant’s actions “are designed to unduly influence” the news but not that defendant’s actions
have been effective); id. ¶¶ 112–14 (describing how defendant has “attempted” to “hamper” or
“dampen” the news but not that he has done so). Otherwise, plaintiff has not alleged any harms
suffered by it or its members. Plaintiff has therefore failed to adequately allege causation or
injury for purposes of a First Amendment retaliation claim, and its complaint should be
dismissed for failure to plausibly state a claim upon which relief can be granted.
CONCLUSION
For the foregoing reasons, the Court should dismiss plaintiff’s amended complaint.
Dated:

New York, New York
April 10, 2019

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Respectfully submitted,
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York,
Attorney for Defendant
By:

/s/ Steven J. Kochevar
Steven J. Kochevar
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
Tel. (212) 637-2715
Fax
(212) 637-2717
steven.kochevar@usdoj.gov

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