530 F.Supp.3d 237
E.D.N.Y.2021Background
- Five U.S. freelance photojournalists (Guan, Nakamura, Abramson, Cahana, Drehsler) were profiled in a DHS/CBP database tied to the 2018 migrant caravans and were referred to secondary inspection when re-entering the U.S.; CBP questioned them about their work, sources, and photographs.
- Some plaintiffs were also stopped or flagged by Mexican authorities; plaintiffs allege coordination or information-sharing between U.S. and Mexican authorities.
- Plaintiffs sued DHS, CBP, and ICE (official-capacity) alleging First Amendment violations: targeted scrutiny, compelled disclosure of news-gathering/associational information, and burdens on journalistic activity; they sought declaratory relief and an injunction ordering expungement and disclosure of any shared records.
- Defendants moved to dismiss for lack of standing and failure to state a claim; they submitted CBP records and a declaration describing routine border procedures.
- The court denied the motion to dismiss: it held plaintiffs lacked standing to obtain a declaratory judgment about past conduct but had standing to seek expungement/disclosure; it also found plaintiffs plausibly alleged a First Amendment violation based on targeted secondary inspections and questioning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to obtain declaratory relief | Plaintiffs seek a declaration that past CBP questioning violated the First Amendment and fear recurrence. | Defendants: DJA relief is prospective; plaintiffs allege only past conduct and no likely future injury. | Court: No standing for declaratory relief because plaintiffs allege only past harms and not a credible likelihood of repetition. |
| Standing to seek expungement and disclosure | Plaintiffs argue retained CBP records and past targeting cause concrete injuries and ongoing effects remedied by expungement. | Defendants contest alleged chilling and emphasize subsequent border crossings. | Court: Plaintiffs have standing for expungement/disclosure—injury from enhanced scrutiny and retention of records is concrete, traceable, and redressable. |
| Proper constitutional framework (First v. Fourth) | Plaintiffs frame claim under the First Amendment (targeting of journalists; compelled disclosure of sources/work product). | Defendants urge Fourth Amendment focus, arguing border search doctrine predominates and searches were routine. | Court: First Amendment claim is cognizable and distinct from Fourth Amendment analysis; a single border action can implicate both. |
| Merits at pleading stage (targeting; burden; tailoring) | Plaintiffs allege they were singled out for secondary inspection because of journalistic activities, compelled to disclose work/product, and suffered a substantial burden on associational/expression rights. | Defendants say questioning was routine, non-compulsory, and tied to border security (information about caravans), not to suppress journalism. | Court: Plaintiffs plausibly alleged targeting and a substantial First Amendment burden; whether the government interest is compelling and whether measures were narrowly tailored are factual issues inappropriate to resolve on the pleadings. |
Key Cases Cited
- Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) (border secondary inspection can impose a substantial First Amendment associational burden even if routine under the Fourth Amendment)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard—plausibility requirement)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard—requirement of factual plausibility)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing requires concrete and particularized injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements and burdens at successive stages)
- Healy v. James, 408 U.S. 169 (1972) (First Amendment protections for association, including protection from subtle governmental interference)
- Branzburg v. Hayes, 408 U.S. 665 (1972) (reporter's privilege and compelled disclosure issues)
- United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (border search doctrine—reduced expectation of privacy at the border)
- Dorsett v. City of New York, 732 F.3d 157 (2d Cir. 2013) (standing may be satisfied by non-speech harms such as additional scrutiny at border crossings)
- Fazaga v. FBI, 965 F.3d 1015 (9th Cir. 2020) (courts can order expungement of records to vindicate constitutional rights)