Mendelsohn v. Meese

• Decision Date: 29 June 1988
• Docket Number: No. 88 Civ. 2005 (ELP).,88 Civ. 2005 (ELP).
• Citation: 695 F. Supp. 1474
• Parties: Everett MENDELSOHN, Riyad H. Mansour, Nubar Hovsepian, Ibrahim Abu-Lughod, Victor A. Ajlouny, et al., Plaintiffs, v. Edwin MEESE, III, Attorney General of the United States, Defendant.
• Court: U.S. District Court — Southern District of New York

695 F. Supp. 1474

Everett MENDELSOHN, Riyad H. Mansour, Nubar Hovsepian, Ibrahim Abu-Lughod, Victor A. Ajlouny, et al., Plaintiffs, v. Edwin MEESE, III, Attorney General of the United States, Defendant.

No. 88 Civ. 2005 (ELP).

United States District Court, S.D. New York.

June 29, 1988.

COPYRIGHT MATERIAL OMITTED

Rudolph W. Giuliani, U.S. Atty., Richard W. Mark, Asst. U.S. Atty., S.D.N.Y., New York City, John R. Bolton, Asst. Atty. Gen., Mona Butler, David J. Anderson, Vincent M. Garvey, U.S. Dept. of Justice, Civil Div., Washington, D.C., for Atty. Gen.

Leonard B. Boudin, Michael Krinsky, David Golove, Nicholas E. Poser, David B. Goldstein, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City, for plaintiffs Mendelsohn, et al.

ORDER AND OPINION

PALMIERI, District Judge:

This action for a declaratory judgment, 28 U.S.C. §§ 2201-2202 (1982), is an attack by sixty five United States citizens and organizations on the constitutionality of the Anti-Terrorism Act of 1987¹ (the "ATA"). The ATA is discussed extensively in this court's opinion in United States v. PLO, 695 F.Supp. 1456 (S.D.N.Y.1988), which is filed herewith. Familiarity with that opinion is assumed. Commenced March 23, 1988, two days after the ATA became effective,² this action contains two claims for relief. The first, asserted by Riyad H. Mansour, challenges the applicability of the ATA to the Permanent Observer Mission of the Palestine Liberation Organization to the United Nations (the "Mission"), and, in the alternative, attacks the ATA's constitutionality if it is applicable to the Mission. Mansour is a party to United States v. PLO, ante, because he is a member of the Mission.

The plaintiffs' second claim seeks a declaratory judgment that the ATA violates their rights of free speech and association guaranteed by the First Amendment to the Constitution, as well as the Constitution's prohibition of Bills of Attainder.

I Background

The ATA is aimed explicitly at the Palestine Liberation Organization (the "PLO").³ Congress has declared that the PLO is "a terrorist organization and a threat to the interests of the United States, its allies, and to international law and should not benefit from operating in the United States." 22 U.S.C. § 5201(b). The ATA, on its face, seriously curbs the operations of the PLO in the United States. We have today construed the ATA to be inapplicable to the PLO's Permanent Observer Mission to the United Nations in order to avoid conflict with an international obligation of the United States. United States v. PLO, ante. Nonetheless, there remains the question whether the ATA violates certain constitutional rights.

The ATA prohibits, with the purpose of furthering the interests of the PLO: (1) receiving "anything of value except informational material from the PLO;" (2) expending funds from the PLO; and (3) establishing or maintaining "an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by" the PLO. 22 U.S.C. § 5202.

There are four plaintiffs who have alleged, with supporting affidavits, that they wish to undertake certain activities but have not yet done so for fear of prosecution under the ATA.

Ibrahim Abu-Lughod, a United States citizen, is Chairman of the Political Science Department at Northwestern University in Evanston, Illinois. He asserts that he as been asked to attend various meetings throughout the United States to explain the position and views of the PLO on the current situation in the Middle East but is unable to do so unless his travel expenses are reimbursed by the PLO. Victor A. Ajlouny, also a United States citizen, similarly declares that the Palestine Red Crescent Society, a constituent group of the PLO, has requested that he undertake a series of speaking engagements in the United States with its funds. He, too, declares he is unable to do so unless his travel expenses are paid. Lughod and Ajlouny therefore present the same claim— that the ATA impermissibly forecloses their right to solicit and receive funds from the PLO in order to facilitate the exchange of views and information.

Nubar Hovsepian, also a United States citizen, asserts that the PLO has requested that he establish and maintain an office in the United States to gather, write and disseminate materials on the subject of the Palestinian people. He also declares that the PLO has requested him to arrange, through that office, for speakers and forums in which these subjects will be discussed. He has sworn that he is prepared to open the office immediately, has laid out his initial plans for the office's undertakings and has received a commitment from individuals for the necessary funding, contingent only on a determination that it would be lawful under the ATA to open the office. According to Hovsepian, "this office will not be authorized to present official views and positions of the PLO, to speak on behalf of the PLO or to represent the PLO." Declaration of Nubar Hovsepian, sworn to March 15, 1988, ¶ 13. His proposed office comes within the literal prohibitions of the ATA—he will establish it "at the behest of" the PLO and with the purpose of "furthering the interests of" the PLO. 22 U.S.C. § 5202(3).

Riyad H. Mansour, a United States citizen who is employed as Deputy Permanent Observer at the PLO mission, asserts that various constitutional infirmities require the ATA to be struck down. In light of this court's construction of the ATA in United States v. PLO, ante, only some of Mansour's claims of unconstitutionality need be reached.

The various other plaintiffs present claims that the ATA violates their rights to receive information and to engage in face to face dialogue. Lamont v. Postmaster General, 381 U.S. 301, 307, 85 S.Ct. 1493, 1496, 14 L.Ed.2d 398 (1965); see Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972). But for the ATA, they allegedly would receive information from Hovsepian's office and would engage in face to face dialogue with Lughod and Ajlouny.

II Standing

It is axiomatic that "at an irreducible minimum, Article III requires the party who invokes the court's authority to `show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and that the injury `fairly can be traced to the challenged action' and is `likely to be redressed by a favorable decision,' Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976)." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote omitted).

The Attorney General argues that three of the individual "speaking" plaintiffs —Lughod, Ajlouny and Hovsepian—do not have standing because the government is "not now taking any steps to enforce the ATA outside of the PLO Observer Mission context." There is no question that, like the plaintiffs in Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed. 2d 505 (1974), and Babbitt v. United Farm Workers National Union, 442 U.S. 289, 301-03, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979), these plaintiffs have alleged "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute." Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309. The government asserts, though, that their claims present no more than a speculative and anticipatory challenge to the statute, analogous to the one rejected by the Eleventh Circuit in Hardwick v. Bowers, 760 F.2d 1202, 1206-07 (11th Cir.1985), rev'd, 478 U.S. 186, 189, 106 S.Ct. 2841, 2842, 92 L.Ed.2d 140 (1986). Some of the plaintiffs in that case alleged a desire to engage in future conduct which was, on its face, a violation of a state sodomy statute. They claimed "only that the existence of the statute along with the arrest of Hardwick a homosexual had `chilled and deterred' them and had `interfered' with decisions regarding their private lives." Id., 760 F.2d at 1206 (emphasis supplied). It was their objection to the statute's mere existence which was at the heart of the circuit court's decision that the threat of enforcement against them was merely speculative. We believe this case, in contrast, presents the plaintiffs with a sufficiently concrete threat of prosecution to require a determination of their claims. The Attorney General is at this point going forward with an enforcement action based on the ATA against persons, who, like these plaintiffs, have indicated a desire to further the interests of the PLO. In contrast, the statute in Hardwick had not been enforced for many years against heterosexuals who had engaged in sodomy, but had been enforced against a homosexual. The Attorney General has refused to stipulate that any actions taken by the plaintiffs during the pendency of this lawsuit would be protected from enforcement in the event the statute survives an initial attack,⁴ or to allay the plaintiffs' fears of prosecution by making a determination that they will not in fact be prosecuted. The Attorney General has therefore assumed an aggressive litigating posture vis-a-vis these very individuals. The Attorney General's own position in this lawsuit and its companion, United States v. PLO, leave this court with no doubt that there exists a "credible threat of prosecution." See Virginia v. American Booksellers Association, Inc., ___ U.S. ___, 108 S.Ct. 636, 642, 98 L.E.2d 782, 794 (1988) ("We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise. We conclude that the plaintiffs have alleged...