Doc Society v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DOC SOCIETY et al.,
Plaintiffs,
v. Civil Action No. 19-3632 (TJK)
ANTONY J. BLINKEN, in his official capac-
ity as Secretary of State, et al.,
Defendants.
MEMORANDUM OPINION
When the President ordered federal agencies to vet entrants to the United States more thor-
oughly, the State Department responded by telling visa applicants to disclose their social-media
activity. Plaintiffs, two organizations that foster and promote documentary films, say that policy
violates the First Amendment and the Administrative Procedure Act. But both claims run headlong
into the discretion entrusted to Congress and to the President to set immigration policy and to
enforce our immigration laws. Thus, Plaintiffs have failed to state a claim, and the Court will grant
Defendants’ motion to dismiss the case.
I. Background
The social-media-disclosure requirement now forms part of the procedure for requesting a
visa to enter the United States. So the Court begins with a brief explanation of the legal framework
surrounding that procedure. The facts below are drawn from Plaintiffs’ complaint because the
Court is resolving a motion to dismiss.
A. Legal Background
Aliens may not be admitted to the United States without a visa. See 8 U.S.C. §§ 1181(a),
1182(a)(7). Consular officers may issue visas after a “proper application.” Id. § 1201(a)(1). The
statutory criteria for a proper application differ slightly between “immigrant” and “nonimmigrant”
visas. See id. § 1202(a), (c). But both types of applications must include “such additional infor-
mation necessary to the identification of the applicant . . . and the enforcement of the immigration
and nationality laws as may be by regulations prescribed.” Id.
Many factors can render an alien inadmissible. See generally 8 U.S.C. § 1182(a). Statutory
grounds for inadmissibility include the alien’s health, criminal history, risks to national security,
ability to earn income, occupation, immigration history, documentation, and ineligibility for citi-
zenship. See id. If a consular officer determines that an alien has any forbidden attribute, she must
deny the application. Id. For denials based on most statutory grounds, the officer must give the
applicant written notice of the denial that “lists the specific provision or provisions of law under
which the alien is inadmissible.” Id. § 1182(b). But no such notice is required if the officer deter-
mines that the alien is inadmissible because of his criminal history or for national-security-related
reasons. See id. § 1182(a)(2)–(3), (b)(3). The State Department maintains an appeals process to
review denials applicants wish to contest. ECF No. 31-8 at 12.
Visa applications are submitted via an online form. The forms are substantially similar for
immigrant and nonimmigrant applications. Compare ECF No. 31-12 with ECF No. 31-13. Each
form requests detailed information about the applicant’s characteristics, life history, and plans for
residing in the United States. See, e.g., ECF No. 31-12 at 8–82. All aliens who apply for a visa
from abroad complete one of those forms—including aliens who are already permanent residents
of the United States, who often apply for new visas or for visa renewals from abroad. ECF No. 1
(“Compl.”) ¶ 23.
The government retains the information collected on visa applications, even after it adju-
dicates the applications. The information is confidential. 8 U.S.C. § 1202(f). But the State
2
Department stores the information in a database that it shares with several federal agencies, in-
cluding the Department of Homeland Security (“DHS”). Compl. ¶ 35. It also may share some
stored information with other agencies, Congress, and state, local, tribal, and foreign governments.
Id. ¶¶ 35–37. Part of the reason the government retains the information, it says, is to “enforce
immigration and nationality laws, a responsibility that does not end once a visa has been granted.”
ECF No. 44 at 29; see also 8 U.S.C. § 1202(f)(2); ECF No. 31-8 at 10; ECF No. 31-9 at 10.
The Secretary of State (“the Secretary”) promulgates regulations that interpret the visa-
requirement statutes. See 22 C.F.R. § 40.1 et seq. Those regulations permit consular officers to
request information beyond that requested by the application forms “whenever the . . . officer be-
lieves that the information provided in [the application] is inadequate to permit a determination of
the alien’s eligibility to receive [a visa].” Id. §§ 41.103(b)(2), 42.63(c). The regulations also bind
consular officers to require applicants to complete the application forms described above. Id.
§§ 41.103(b)(1), (3), 42.63(b). Insofar as those regulations have the “force of law,” United States
v. Mead Corp., 533 U.S. 218, 226–27 (2001), they are entitled to deference under Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
B. Factual Background
1. The Agency Action
The challenged agency action began with an executive order. In 2017, President Trump
directed the heads of four federal agencies to revamp the procedures for vetting visa applications.
See Exec. Order No. 13,780 § 5(a), 82 Fed. Reg. 13209, 13215 (Mar. 6, 2017). Broadly, the new
program was supposed to increase the government’s capacity to verify an applicant’s identity,
assure his candor, and gauge the likelihood that he would participate in crime or terrorism. See id.In response, the State Department proposed a change to its online visa forms. It sought to
collect, among other things, information about the social-media platforms an applicant had used
3
in the five years before the application. 1 The proposed addition to the forms would also have
required applicants to divulge their “identifiers”—that is, the usernames, handles, or other moni-
kers associated with their social-media accounts. 83 Fed. Reg. at 13806–07. That information
would allow the State Department to review an applicant’s posts, interactions, and associations.
That proposal’s notice-and-comment process generated intense interest. Roughly ten-thou-
sand comments raised concerns related to free speech and association, privacy, and efficacy.
Compl. ¶ 26. The State Department responded to those comments in sixteen groups for immigrant
visas, see ECF No. 31-8 at 4–19, and in twenty groups for nonimmigrant visas, ECF No. 31-9
at 5–20. It noted that its proposal would collect only information that an applicant had shared
publicly on social media. ECF No. 31-8 at 9. Still, it acknowledged that the collection would
nullify the anonymity that some social-media platforms afford their users. Id. The State Depart-
ment explained that it would use a collection method that “best safeguards” the information’s
transmission to the consular officer and then treat the data as confidential under 8 U.S.C. § 1202(f).
Id. at 9–10. As for efficacy, it concluded that the proposal would help screen “visa applicants for
specific visa ineligibility grounds” and verify their identities. Id. at 14.
The State Department implemented a version of its proposal by adding questions to its
visa-application forms. Compl. ¶ 27. Visa applicants must now indicate whether they have used
any listed social-media platform in the last five years. Compl. ¶¶ 28–30. If they have used a listed
platform, they must provide the account’s identifier, even if the account is pseudonymous. Compl.
¶¶ 28–31. Applicants may also provide the same information for social-media platforms that are
1
60-Day Notice of Proposed Information Collection: Application for Immigrant Visa and
Alien Registration, 83 Fed. Reg. 13806, 13806 (Mar. 30, 2018); 60-Day Notice of Proposed Infor-
mation Collection: Application for Nonimmigrant Visa, 83 Fed. Reg. 13807, 13807 (Mar. 30,
2018).
4
not listed on the forms. Compl. ¶¶ 28–30. Those requirements apply to almost all visa applicants,
including those who already reside in the United States but are applying for a new visa from
abroad. Compl. ¶¶ 32–33.
When President Biden took office, he revoked the executive order that prompted the dis-
closure requirement. Proclamation No. 10141 § 1, 86 Fed. Reg. 7005, 7005 (Jan. 20, 2021). The
State Department then began a “policy review” that included reconsideration of the requirement.
See ECF No. 52 at 1; see also ECF No. 54 at 2. More recently, the State Department represented
that it decided not to make “imminent changes” to the requirement, although the policy remains
“under discussion.” ECF No. 58 at 1. Thus, the disclosure requirement remains in place to this
day, despite the change in administrations.
2. Plaintiffs
Plaintiffs are two documentary-film organizations that help produce films all over the
world. Compl. ¶¶ 40–41. The first, Doc Society, helps fund documentary films, in part by hosting
events that connect funders and filmmakers. Compl. ¶ 40. It also promotes such films in hopes of
achieving social change. See id. The second organization, International Documentary Association
(“IDA”), funds and promotes documentary films too, but it also hosts events to help filmmakers
with the more practical aspects of their work. See Compl. ¶ 41.
Plaintiffs’ activities rely on collaboration with many foreign nationals. IDA has members
in fifty-three countries. Compl. ¶ 41. Doc Society has no members, Compl. ¶ 40, but it has “part-
ners” in diverse countries, Compl. ¶ 42. By “partners,” it means “filmmakers, advocates, activists,
and other[s],” whom it invites to events and helps make films. See Compl. ¶ 47. Both organiza-
tions host in-person events where “non-U.S. members and partners” must “travel to the United
States.” Compl. ¶ 45. Doc Society also believes that its film-funding efforts depend on the ability
of its non-U.S. partners to meet face-to-face with “potential funders or activists.” Compl. ¶ 44.
5
Many of Plaintiffs’ foreign members and partners thus plan to visit the United States and require
visas to do so. Compl. ¶ 42.
Plaintiffs consider social media “an indispensable research, education, and communication
tool.” Compl. ¶ 46. Essentially, they use it to identify new potential projects, members, and part-
ners, to promote films and political messages, and to share resources. See Compl. ¶¶ 47–48. Their
members and partners use it for similar purposes. See Compl. ¶¶ 49–50. Some of those members
and partners use social media pseudonymously, whether out of concern for their safety or to aid in
researching groups whose aims they do not share. See Compl. ¶ 51.
Some of Plaintiffs’ members and partners who both need visas and use social media do not
wish to divulge their online activities to the State Department. They fear two types of potential
harm. First, social-media use might disadvantage a user’s visa application. See Compl. ¶¶ 57–59.
For example, a consular officer might misinterpret a user’s speech or impute to him the speech of
others in his network. See Compl. ¶¶ 57–58. And even if those events do not cause an application
to be denied, they may still lead to processing delays. Compl. ¶ 59. Second, people other than
consular officers—including officials of foreign governments—might learn of a user’s posts or
associations. Compl. ¶¶ 60–61. That could occur by intentional information sharing, Compl. ¶ 60,
or through data breaches, which have happened before, Compl. ¶ 61.
Plaintiffs’ members and partners have responded in two ways. Some users have reduced
their social-media presence by, for example, avoiding political subjects or by refraining from as-
sociating with certain individuals. See Compl. ¶¶ 54–55. Others have elected not to apply for a
visa or visit the United States. Compl. ¶ 56.
Plaintiffs say both these responses harm them. When their members and partners reduce
their social-media use, Plaintiffs have less information from which they can identify new members,
6
partners, issues, and potential films. See Compl. ¶¶ 66–68. When their members and partners
refuse to travel to the United States, attendance at Plaintiffs’ events declines, and Plaintiffs are
able to fund and screen fewer films. See Compl. ¶¶ 70–72. Plaintiffs have responded by spending
more resources to “find and engage with members and partners . . . [,] to support and promote the
work of their members and partners[,] and to recruit new members, partners, and projects” given
their reduced ability to connect on social media or persuade foreign nationals to visit the United
States. Compl. ¶ 75.
C. Procedural History
Plaintiffs filed suit not long after the disclosure requirement took effect. They bring two
claims. First, they allege that the disclosure requirement violates the Administrative Procedure
Act (“APA”). Compl. ¶ 77. Second, they contend that the requirement transgresses the First
Amendment. Compl. ¶ 78. They ask the Court to hold the disclosure requirement unlawful, enjoin
Defendants from enforcing it, and order them to “expunge all information collected” by the social-
media questions. Compl. at 34. Defendants move to dismiss. ECF No. 31. They contend that
Plaintiffs lack standing to challenge the disclosure requirement, ECF No. 31-1 at 20–38, and that
they have failed to state a claim, id. at 38–56. Three groups of amici join Plaintiffs in opposing
that motion. ECF Nos. 32, 35-1, 37-1, and 39-1.
With that motion pending, the Court stayed the case after President Biden revoked Presi-
dent Trump’s executive order and announced a review of the disclosure requirement. Minute Or-
der of Mar. 31, 2021. The Court lifted that stay several months later when Defendants did not
withdraw the disclosure requirement. See Minute Order of Aug. 18, 2021; Minute Order of Oct.
20, 2021. At this point, no policy change appears forthcoming that would moot the case. See ECF
No. 58 at 1. Thus, the Court will resolve Defendants’ motion.
7
II. Legal Standards
Defendants’ motion relies on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Un-
der Rule 12(b)(1), Plaintiffs have the burden to establish standing. Little v. Fenty, 689 F. Supp. 2d
163, 166–67 (D.D.C. 2010). That burden “grows heavier at each stage of the litigation.” Osborn
v. Visa Inc., 797 F.3d 1057, 1063 (D.C. Cir. 2015). To survive a motion to dismiss, Plaintiffs need
only allege a qualifying “injury resulting from [Defendants’] conduct.” Id. (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992)). The Court must “assume the truth of all material factual
allegations in the complaint and . . . grant[ Plaintiffs] the benefit of all inferences that can be de-
rived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)
(quotation omitted).
Under Rule 12(b)(6), Plaintiffs’ 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)
(quotation omitted). A claim is plausible if “it contains factual allegations that, if proved, would
allow the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (quotation omitted).
Again, the Court must “accept all the well-pleaded factual allegations of the complaint as true and
draw all reasonable inferences from those allegations in the plaintiff's favor.” Id. (quotation omit-
ted). But it must disregard “a legal conclusion couched as a factual allegation.” Cason v. NFL
Players Ass’n, 538 F. Supp. 3d 100, 109 (D.D.C. 2021) (quotation omitted).
III. Analysis
For the reasons explained below, the Court concludes that (1) under this Circuit’s binding
precedent, Plaintiffs have shown they have organizational standing to bring suit, but (2) they have
failed to state a claim under either the APA or the First Amendment. Thus, for that reason, the
Court will grant the motion to dismiss.
8
A. Plaintiffs Have Organizational Standing Because the Disclosure Requirement
Allegedly Impedes Their Activities
As a threshold matter, the Court must ensure Plaintiffs have standing. See Freedom Watch,
Inc. v. McAleenan, 442 F. Supp. 3d 180, 186 (D.D.C. 2020); see also Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998). That is, it must ensure that Plaintiffs have “clearly allege[d]
facts demonstrating” they have “(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (alteration adopted). The alleged
injury must be particular to Plaintiffs; they may not raise a “generally available grievance.” Lance
v. Coffman, 549 U.S. 437, 439 (2007) (per curiam).
Plaintiffs allege two forms of harm. First, they point to their own injuries. Compl. ¶ 39.
Courts term that sort of standing “organizational” and treat the entity as they would “an individual
plaintiff.” People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087,
1093 (D.C. Cir. 2015) (“PETA”). Second, Plaintiffs assert the injuries to their “members and
partners,” both abroad and in the United States. Compl. ¶ 39. Courts call that type of standing
“associational” and ask whether the entity has identified a particular member who would (1) “have
standing to sue in his own right” based on (2) an interest “germane” to the entity’s “purpose” and
(3) whether the individual’s personal participation in the suit is necessary. Chamber of Commerce
of the U.S. v. EPA, 642 F.3d 192, 199–200 (D.C. Cir. 2011).
The Court concludes that, under this Circuit’s precedent, Plaintiffs’ allegations of organi-
zational standing are enough to establish subject-matter jurisdiction. Specifically, Plaintiffs al-
leged a cognizable injury-in-fact because they have been deprived of information on which their
regular activities rely. Compl. ¶¶ 66–67. That injury is traceable to Defendants’ conduct because
the informational vacuum allegedly was caused by the disclosure requirement. Compl. ¶¶ 54–55.
9
Likewise, an order vacating the requirement would restore the desired information. See id. Be-
cause that theory of standing can sustain Plaintiffs’ challenge at this stage, the Court need not
consider Plaintiffs’ other theories.
1. Injury-in-Fact
A concrete injury is “foremost” among the standing requirements. Steel Co., 523 U.S.
at 103. An organization pleads a concrete injury by alleging facts showing that the challenged
action has “perceptibly impaired” its “activities,” leading to a “drain on the organization’s re-
sources.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). By contrast, a “setback to
the organization’s abstract social interests” is not enough. Id.Courts in this Circuit use a two-part test to apply that standard. Tex. Low Income Hous.
Info. Serv. v. Carson, 427 F. Supp. 3d 43, 52 (D.D.C. 2019). First, they assess the alleged impair-
ment to the organization’s activities. Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on
Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017) (“EPIC I”). The impediment must frustrate
the organization’s “daily operations.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919
(D.C. Cir. 2015) (quoting PETA, 797 F.3d at 1094). And there must be a “direct conflict between
the [defendants’] conduct and the organization’s mission.” Elec. Privacy Info. Ctr. v. FAA, 892
F.3d 1249, 1255 (D.C. Cir. 2018) (“EPIC II”) (quotation and emphasis omitted). Second, courts
ensure the organization “used its resources to counteract that harm.” EPIC I, 878 F.3d at 378(quoting PETA, 797 F.3d at 1094). That effort cannot be a “self-inflicted budgetary choice.” Id.
at 379 (quotation omitted). So litigation costs or extra advocacy efforts do not count. Food &
Water Watch, 808 F.3d at 919.
Plaintiffs allege that their organizations have suffered an informational injury because the
government has deprived them of desired information. See Found. on Econ. Trends v. Lyng, 943
F.2d 79, 84–85 (D.C. Cir. 1991) (describing the premises of “informational standing”). They say
10
they suffer such harm because the disclosure requirement “deters” their members and partners
from sharing information on social media, which undermines their use of social media for research.
Compl. ¶¶ 66–68.
Recent caselaw in this Circuit suggests that an informational injury is sufficiently concrete
if an organization wishes to use a stream of information in a specific, regular way as part of its
established activities. For example, a plaintiff had a concrete informational injury where an
agency’s alleged failure to apply a regulatory requirement meant the agency was not issuing re-
ports that would have aided the plaintiff in preparing its own educational materials for the public,
which it ordinarily did. PETA, 797 F.3d at 1095–96. Another plaintiff suffered a similar injury
where an agency did not promulgate regulations that would have obviated informational materials
that it prepared, saving the plaintiff time and money. Am. Anti-Vivisection Soc’y v. U.S. Dep’t of
Agric., 946 F.3d 615, 619 (D.C. Cir. 2020). In both cases, the injury was concrete because the
agency action “restrict[ed] the flow of information that [the plaintiffs used] to educate [their] mem-
bers.” See Food & Water Watch, 808 F.3d at 921. The sum of those cases is that the inability to
use recurrent information for an organization’s “services,” “daily operations,” or “activities” can
perceptibly impair those activities. See Ctr. for Responsible Sci. v. Hahn, 809 F. App’x 10, 12–13
(D.C. Cir. 2020) (per curiam) (quotations omitted).
The Circuit has, however, consistently rejected allegations of informational injury based
solely on an organization’s lack of access to discrete, one-off pieces of information. It has some-
times characterized such allegations merely as harm to the organization’s generalized advocacy or
lobbying efforts. E.g., Food & Water Watch, 808 F.3d at 921. So a plaintiff cannot show a con-
crete informational injury from only a single instance of missing information, even if it wishes to
use that information to create educational materials. See EPIC I, 878 F.3d at 378–79. In such
11
cases, the alleged harm “sound[s] in pure issue advocacy.” EPIC II, 892 F.3d at 1256. Only the
interruption of a regular “flow of information” connected to an organization’s ongoing activity is
sufficient to show that the organization has been injured for standing purposes. Food & Water
Watch, 808 F.3d at 921.
Moreover, under this Circuit’s precedent, organizational plaintiffs’ standing to seek recur-
rent information for specific, established activities does not depend on the organization’s legal
entitlement to the information. 2 If “information is essential to the injured organization’s activities
and . . . the lack of the information will render those activities infeasible,” all that is needed is “a
plausible link between the agency’s action, the informational injury, and the organization’s activ-
ities.” Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 122 (D.C.
Cir. 1990). That rule may well clash with the precept that an injury-in-fact is an invasion of a
“legally protected interest.” PETA, 797 F.3d at 1102–03 (Millett, J., dubitante) (quoting Lujan,
504 U.S. at 560). But it is the law of this Circuit, which this Court is bound to follow.
Thus, Plaintiffs have adequately alleged impairment to their activities—the first part of the
test for organizational standing—by describing this “plausible link.” The regular activity they
wish to continue is the use of information posted on social media for research. Compl. ¶¶ 67–68.
They explain the many ways they use that tool to provide their services. 3 Plaintiffs have further
2
That is, a recurrent-information plaintiff need not show that “(1) it has been deprived of
information that, on its interpretation, a statute requires the government or a third party to disclose
to it, and (2) it suffers, by being denied access to that information, the type of harm Congress
sought to prevent by requiring disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C.
Cir. 2016); see also FEC v. Akins, 524 U.S. 11, 20–25 (1998).
3
Compl. ¶ 67 (“Doc Society [uses social media] to identify films to honor at its awards
ceremonies [and] to research issues to explore in new programs . . . . Doc Society also relies on
social media to identify new issues to address in its programs. Through Twitter, Doc Society
identified [partners] whom it then connected with documentary filmmakers . . . .”); Compl. ¶ 68
(“IDA . . . follows numerous documentary filmmakers on [social media]. IDA pays close attention
12
alleged that the disclosure requirement makes its continued reliance on social media infeasible
because many individuals whose speech they wish to receive have stopped speaking on relevant
topics. Compl. ¶¶ 54–55. That allegation is plausible because Plaintiffs have explained why the
disclosure requirement has induced these individuals’ silence. Compl. ¶¶ 57–61. And the allega-
tion is not speculative because Plaintiffs have explained that information on which they had been
relying has already disappeared. Compl. ¶¶ 54–55.
Plaintiffs have also alleged a “direct conflict” between the disclosure requirement and their
“mission[s].” EPIC II, 892 F.3d at 1255 (quotation and emphasis omitted). Defendants say Plain-
tiffs have shown only “indirect[ ]” effects, ECF No. 44 at 18, but that argument ignores relevant
caselaw. The Circuit has explained that the direct-conflict requirement “exists because, if the
challenged conduct affects an organization’s activities, but is neutral with respect to its substantive
mission, then it is entirely speculative whether the challenged practice will actually impair the
organization’s activities.” PETA, 797 F.3d at 1095 (quotation omitted and alteration adopted). So
regardless of whether an agency targeted its action at an organization’s mission, a direct conflict
exists if the action “hamper[s]” the agency’s “stated mission” “in a non-speculative manner.” Id.
That is true here because, like in PETA, Plaintiffs have plausibly alleged that the agency action has
made their mission harder to accomplish. See id. at 1095–96; Compl. ¶¶ 39–41 (explaining that
Plaintiffs’ missions include enabling the production and dissemination of documentary films). For
the reasons already explained, the disclosure requirement directly conflicts with those missions.
Plaintiffs have also satisfied the second part of the organizational-standing test. They
to what filmmakers are saying on Twitter and Facebook to inform its educational and advocacy
efforts on their behalf. For example, through social media IDA has discovered a number of cases
of filmmaker censorship, which IDA has then investigated in order to assist the censored filmmak-
ers and to alert its membership to the threats they may face in different countries. IDA addresses
these and similar issues in [its programming].”).
13
allege they diverted resources to counteract the informational harm. They explain that, because of
social media’s reduced efficacy, they expend more “time, staff resources, and funding to find and
engage with members and partners.” Compl. ¶ 75. Defendants point out that Plaintiffs do not
“identify any other activities from which they have ‘diverted’ resources,” but that observation is
irrelevant. ECF No. 44 at 20. Defendants identify no case that requires Plaintiffs to specify which
activities have yielded to their increased efforts to counter the agency action, and the Court can
find none. Every organization has finite resources, so any increase in expenditures leaves less
available for other purposes, making such a requirement unnecessary. All Plaintiffs must do is
allege they have used more resources in a way they otherwise would not have. See EPIC I, 878
F.3d at 379.
Nor is Plaintiffs’ injury self-inflicted in the relevant sense. True, Plaintiffs voluntarily
spend the extra resources, but that fact does not address the relevant question. See Equal Rts. Ctr.
v. Post Props., Inc., 633 F.3d 1136, 1140–41 (D.C. Cir. 2011). An injury is not self-inflicted if
money is spent “in response to, and to counteract, the effects of the defendants’ [conduct].” Id.
at 1140. Plaintiffs allege that they now need more resources to accomplish the same tasks they
performed before the disclosure requirement. Compl. ¶¶ 67–68, 75. And they have drawn a “di-
rect causal link between the [requirement] and [their] expenditures.” EPIC I, 878 F.3d at 379 n.7;
Compl. ¶¶ 55–61. So they have pled an organizational, informational injury-in-fact.
2. Traceability and Redressability
Of course, an injury is not the only standing requirement Plaintiffs must satisfy. Organi-
zations, like other plaintiffs, must also allege facts showing “traceability” and “redressability.”
Tex. Low Income Hous., 427 F. Supp. 3d at 57. Plaintiffs’ allegations establish both elements.
Traceability and redressability are two sides of the same coin. The former element requires
that the injury results from “the challenged action of the defendant,” not “from the independent
14
action of some third party not before the court.” Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26,
41–42 (1976). The latter element requires that it is “likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (quotations omitted).
Those elements are closely linked because vitiating an injury’s cause usually at least mitigates the
injury. See Dynalantic Corp. v. Dep’t of Def., 115 F.3d 1012, 1017–18 (D.C. Cir. 1997). But they
are still distinct because the former concerns the relationship between the injury and the defend-
ant’s conduct, while the latter concerns the relationship between the injury and the requested relief.
West v. Lynch, 845 F.3d 1228, 1235–36 (D.C. Cir. 2017).
The difficulty for Plaintiffs is that they are not the subject of Defendants’ conduct because
they are not visa applicants. Instead, the injury to Plaintiffs materializes through the social-media
decisions of third parties, for whom, as Defendants point out, the visa-application requirements of
the United States government are “one of many factors” they consider in deciding what to say.
ECF No. 44 at 19. Accordingly, Plaintiffs face “a considerably tougher row to hoe.” Tex. Low
Income Hous., 427 F. Supp. 3d at 58. They must allege facts that allow the Court plausibly to infer
how those third parties have acted and will act in response to an order in Plaintiffs’ favor. See
Lujan, 504 U.S. at 562.
Still, the Circuit has recognized that even an injury inflicted by third parties can be tracea-
ble to the government and redressable by an order to the government. That is true where the factual
allegations present “substantial evidence of a causal relationship between the government policy
and the third-party conduct.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941
(D.C. Cir. 2004), abrogated on other grounds by Perry Cap. LLC v. Mnuchin, 864 F.3d 591 (D.C.
Cir. 2017). Courts must inquire into the “logic” of the allegations; the allegation of causality itself
is not enough. See Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d
151267, 1275–78 (D.C. Cir. 2007). On the redressability element, that assessment means asking
whether “the new status quo is held in place by other forces,” so that even an order eliminating the
original cause of the injury will not now redress it. Id. at 1278.
Plaintiffs’ allegations show plausible traceability and redressability. They explain, relying
on the explanations of some of their members and partners, that many now refrain from relevant
speech on social media because they fear the views they share, even pseudonymously, “will be
used against them during the visa process.” Compl. ¶ 55. But those same people “previously used
social media” to contribute to the information streams on which Plaintiffs rely. Id. Those allega-
tions are not bare attributions because Plaintiffs explain in detail why their members and partners
fear the disclosure requirement’s effects. Compl. ¶¶ 57–63. And Plaintiffs seek an order that
would eliminate the collection and storage of social-media identifiers and nullify its prior impact.
See Compl. at 34. The most logical inference from those allegations, accepted as true, is that the
order Plaintiffs request would restore the information on which they rely. In other words, their
allegations present “substantial evidence of a causal relationship” between the social-media silence
and the disclosure requirement, Nat’l Wrestling, 366 F.3d at 941, and there is no reason to think
the “new status quo is held in place by other forces,” Renal Physicians, 489 F.3d at 1278.
Plaintiffs’ reliance on the explicit reasoning of the relevant third parties distinguishes this
case from others in which traceability and redressability were found speculative. For example, the
plaintiff in Texas Low Income Housing had alleged only that the legal change would “remov[e] an
impediment” to the desired behavior of a third party and would make that behavior “far easier.”
427 F. Supp. 3d at 59–60 (emphasis omitted). With no concrete reason to believe that the third
party would behave differently, this Court disregarded those allegations as “conjecture.” Id. at 60.
So too in National Wrestling, where the plaintiffs could show no more than that a favorable order
16
would create “better odds” that their desired result would materialize. 366 F.3d at 939. Here, by
contrast, the allegations show strong evidence that the sole “disincentive” to the third parties’ oth-
erwise-desired conduct is the agency action. See Block v. Meese, 793 F.2d 1303, 1308–09 (D.C.
Cir. 1986); see also Tozzi v. U.S. Dep’t of Health and Hum. Servs., 271 F.3d 301, 308–09 (D.C.
Cir. 2001) (finding that an agency action was a “substantial factor” in third parties’ decisions (quo-
tation omitted)).
Thus, at this stage, Plaintiffs have shown organizational standing to challenge the disclo-
sure requirement. That conclusion, of course, relies on the Court’s assumption that Plaintiffs’
allegations are true and on its drawing of inferences in their favor. See Osborn, 797 F.3d
at 1063–64. At later stages of litigation, Plaintiffs could “no longer rest on mere allegations, but
must set forth by affidavit or other evidence specific facts.” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 412 (2013) (quoting Lujan, 504 U.S. at 561) (cleaned up). But this Court has jurisdiction
to reach the merits, so Defendants’ Rule 12(b)(1) motion will be denied.
B. Plaintiffs Have Not Stated an APA Claim Because the Visa-Application Stat-
ute Presents a Judicially Unmanageable Standard
Plaintiffs’ first claim arises under the APA. They ask this Court to “set aside” the disclo-
sure requirement as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law” or “in excess of statutory . . . authority.” Compl. ¶ 77; see also 5 U.S.C. § 706(2)(A),
(C). 4 Plaintiffs explain that their APA claim has two aspects. First, they say the Secretary lacked
the statutory authority to impose the disclosure requirement. ECF No. 32 at 32. Second, they
contend that the rulemaking process was arbitrary and capricious. Id.4
Plaintiffs also bring a claim under 5 U.S.C. § 706(2)(B), which directs courts to set aside
agency actions that are “contrary to constitutional right, power, privilege, or immunity.” See
Compl. ¶ 77. But that aspect of their APA claim is coterminous with their second claim under the
First Amendment, so the Court will address it later.
17
Defendants attempt to refute those claims, but they also interpose two threshold obstacles
to APA review. First, they argue that Congress committed to the Secretary the discretion to decide
what information a proper visa application must contain. ECF No. 31-1 at 28–31. If that is true,
the agency action is not reviewable under the APA. 5 U.S.C. § 701(a)(2). Second, they maintain
that Plaintiffs fall outside the zone of interests of the Immigration and Nationality Act (“INA”)
and so cannot sue under its legal requirements. ECF No. 31-1 at 43–44. If either of those obstacles
has merit, the Court must dismiss Plaintiffs’ APA claim under Rule 12(b)(6). See Sierra Club v.
Jackson, 648 F.3d 848, 853–55 (D.C. Cir. 2011) (agency discretion); CSL Plasma Inc. v. U.S.
Customs & Border Prot., 33 F.4th 584, 588 (D.C. Cir. 2022) (statutory zone of interests). In the
end, the first obstacle proves insurmountable, so the claim must be dismissed.
The APA’s “presumption of judicial review” is superseded if an “agency action is ‘com-
mitted to agency discretion by law.’” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2567
(2019) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967), and 5 U.S.C. § 701(a)(2)).
An action is unreviewably committed to agency discretion in “those rare circumstances where the
relevant statute is drawn so that a court would have no meaningful standard against which to judge
the agency’s exercise of discretion.” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct.
361, 370 (2018) (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). That “exception” is “gen-
erally” limited to actions in “areas traditionally committed to agency discretion.” Dep’t of Com-
merce, 139 S. Ct. at 2568. 5 But it also applies if the statutory text “heralds Congress's judgment
5
Examples include “a decision not to institute enforcement proceedings,” Dep’t of Com-
merce, 139 S. Ct. at 2568 (citing Heckler v. Chaney, 47 U.S. 821, 831–32 (1985)), “a decision by
an intelligence agency to terminate an employee in the interest of national security,” id. (citing
Webster v. Doe, 486 U.S. 592, 600–01 (1988)), “the allocation of funds from a lump-sum appro-
priation,” Weyerhaeuser, 139 S. Ct. at 370 (citing Lincoln, 508 U.S. at 191), and “a decision not
to reconsider a final action,” id. (citing ICC v. Locomotive Eng’rs, 482 U.S. 270, 282 (1987)).
18
to commit the decision exclusively to agency discretion.” Make the Road N.Y. v. Wolf, 962 F.3d
612, 632 (D.C. Cir. 2020) (interpreting a statute that textually gave an agency head “sole and
unreviewable discretion” (quoting 8 U.S.C. § 1225(b)(1)(A)(iii)(II))).
Defendants invoke that exception here. They claim that “Congress has given the Secretary
of State broad discretion over the visa application process.” ECF No. 31-1 at 40. They observe
that visa applications lie “at the intersection of foreign policy and national security.” Id. at 42.
And they contend that the relevant statutes lack “any substantive standards against which to meas-
ure” the legality of this agency action. Id. at 41.
The relevant statutes require visa applications to be made “in such form and manner” “as
shall be by regulations prescribed.” 8 U.S.C. § 1202(a), (c). Both statutes specifically list, as
information that applicants “shall state,” an applicant’s “full and true name” and his “date and
place of . . . birth.” Id. Applications for immigrant visas must also contain “any other name” an
applicant has used “or by which he has been known” and his “age and sex.” Id. § 1202(a). Those
for nonimmigrant visas must also contain an applicant’s “nationality, the purpose and length of his
intended stay in the United States,” and “his marital status.” Id. § 1202(c). Finally, both statutes
require an applicant to state “such additional information necessary to the identification of the
applicant” “and the enforcement of the immigration and nationality laws as may be by regulations
prescribed.” Id. § 1202(a), (c). 6 The Secretary pointed to that final clause as authority to enact
the disclosure requirement. See ECF No. 31-8 at 2; ECF No. 31-9 at 2.
The Circuit confronted a similar question about Section 1202(a) in Legal Assistance for
Vietnamese Asylum Seekers v. Department of State, 104 F.3d 1349 (D.C. Cir. 1997) (“LAVAS”).
6
Section 1202(c) also contains the phrase “necessary to . . . the determination of his eligi-
bility for a nonimmigrant visa.”
19
The dispute in LAVAS concerned the place where an applicant could apply for an immigrant visa.
See id. at 1350. Section 1202(a) allows applications to be made “at such place as shall be by
regulations prescribed.” That “broad language,” the court explained, “grants to the Secretary dis-
cretion to prescribe the place at which aliens apply for immigrant visas without providing substan-
tive standards against which the Secretary’s determination could be measured.” Id. at 1353. And
the decision where to permit applications is the sort of action that “counsels against [judicial re-
view]” because it requires the “balancing [of] complex concerns involving security and diplo-
macy.” Id. So the Circuit held that the venue decision was committed to agency discretion by
law. Id.Defendants reason that “LAVAS compels dismissal of the Plaintiffs’ APA claims.” ECF
No. 31-1 at 41. The Court disagrees. Deciding what information to require on a visa application
is not the sort of decision “traditionally committed to agency discretion.” Dep’t of Commerce, 139
S. Ct. at 2568. And the statute contains a “meaningful standard” that, in the abstract, is capable of
judicial application. Weyerhaeuser, 139 S. Ct. at 370.
Decisions traditionally committed to agency discretion are those over which Congress
lacks or has relinquished shared control. See Lincoln, 508 U.S. at 191–92; Shawnee Tribe v.
Mnuchin, 984 F.3d 94, 99–100 (D.C. Cir. 2021). Although that is often true “[i]n the foreign
affairs arena,” Detroit Int’l Bridge Co. v. Canada, 883 F.3d 895, 903 (D.C. Cir. 2018), a mere
connection to a core executive power does not render a decision unreviewable, see, e.g., Dep’t of
Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1906–07 (2020) (holding that a
decision that created a “program for conferring affirmative immigration relief” was reviewable).
Even in areas related to foreign affairs and national security, actions may have a “focus for judicial
review.” Id. at 1906 (quoting Chaney, 470 U.S. at 832). Such a focus exists where Congress has
20
asserted control “by putting restrictions in the operative statute[ ].” Shawnee Tribe, 984 F.3d at
100 (quoting Lincoln, 508 U.S. at 193).
Sections 1202(a) and (c) contain several restrictions that provide a focus for judicial re-
view. For one thing, both statutes require visa applications to contain specific elements. For an-
other, the clauses under which the Secretary claimed authority for this action restrict the “addi-
tional information” to that “necessary” for various purposes. 8 U.S.C. § 1202(a), (c). Those at-
tributes distinguish this part of the statute from that in LAVAS, where Congress provided only that
the decision would be made by regulation, leaving the decision “entirely to the discretion of the
Secretary.” 104 F.3d at 1353. The presence of those limitations means that the statutes carry “no
presumption of non-reviewability.” Shawnee Tribe, 984 F.3d at 100.
Nor does the Court lack “law to apply.” Shawnee Tribe, 984 F.3d at 99 (quotations omit-
ted). Defendants point out that the phrase “may be . . . prescribed” in the statute implies that the
Secretary has discretion. ECF No. 31-1 at 41–42 (citing Haig v. Agee, 453 U.S. 280, 294 n.26
(1981) (noting that “‘may’ expressly recognizes substantial discretion”)). Maybe so, but Defend-
ants do not answer the further question—“Discretion over what?” The word “may” modifies only
the clause “be by regulations prescribed.” That is, the Secretary has discretion over the decision
whether to require additional information. 8 U.S.C. § 1202(a), (c). If he does so, the statute re-
quires that the “additional information” be “necessary” to the listed purposes. Id. If Congress had
intended to place no limitations on what kind of information the Secretary could require, it could
have said nothing—as it did in the language analyzed in LAVAS. Id. § 1202(a) (Applications shall
be “in such form and manner and at such place as shall be by regulations prescribed.”). Its decision
to limit the information—and even to do so in different ways for immigrant and nonimmigrant
visas—shows that the word “necessary” limits the Secretary’s discretion. See City of Arlington v.
21
FCC, 569 U.S. 290, 296 (2013) (“Congress knows to speak in plain terms when it wishes to cir-
cumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”).
Still, as Defendants observe, the legal standard must also be “judicially manageable.” ECF
No. 44 at 25 (quotation omitted); see also Physicians for Social Resp. v. Wheeler, 956 F.3d 634,
643 (D.C. Cir. 2020) (quotation omitted). In the usual sense, it is. True, the word “necessary” is
fraught with possible interpretations. See Nat. Res. Def. Council v. Thomas, 838 F.2d 1224, 1237
(D.C. Cir. 1988) (explaining that the word’s meaning “varies with context”). But courts confront
and resolve that sort of ambiguity routinely. See, e.g., Safe Extensions, Inc. v. FAA, 509 F.3d 593,
601 (D.C. Cir. 2007) (finding judicially manageable the statutory standard “necessary for safety”).
Federal courts have long wrestled versions of this precise question. See, e.g., M’Culloch v. Mar-
yland, 17 U.S. 316, 413–14 (1819) (“The word ‘necessary’ . . . has not a fixed character, peculiar
to itself. It admits of all degrees of comparison; and is often connected with other words, which
increase or diminish the impression the mind receives of the urgency it imports.”). Yet they have
found answers. See, e.g., id. at 421.
But other cases on which Defendants rely, such as Center for Biological Diversity v.
Trump, 453 F. Supp. 3d 11 (D.D.C. 2020), ultimately persuade the Court to dismiss the claim. As
these cases explain, applying some statutory standards “calls for sensitive judgments that Congress
plainly intended” another branch of government to make. Id. at 38 (quotation omitted). For ex-
ample, a judgment whether “military construction is ‘necessary’ . . . crosses the line into military
policy.” Id. And “the federal judiciary is ill-equipped to conduct reviews of the nation’s military
policy.” Nat’l Fed’n of Fed. Emps. v. United States, 905 F.2d 400, 406 (D.C. Cir. 1990). The
lesson of these cases is that courts must consider the purpose for which a statutory subject is to be
judged necessary and avoid policy decisions entrusted to other branches of government.
22
Evaluating Plaintiffs’ APA claim would require the Court to intrude on a similar policy
decision entrusted to another branch of government. No matter what construction of “necessary”
is right, evaluating the claim would involve, for both types of visas, determining what information
is necessary to aid “enforcement of the immigration and nationality laws.” See 8 U.S.C.
§ 1202(a), (c). But the law-enforcement value of the information at issue, if any, materializes only
in the individual decisions whether to admit a particular noncitizen or to revoke a particular noncit-
izen’s visa. That is, whether the information is necessary to enforce the law in a particular situation
depends on a decision about how the law should be enforced in that situation. And that is precisely
the sort of decision that calls for the executive branch to “balance factors peculiarly within its
expertise.” Regents of the Univ. of Cal., 140 S. Ct. at 1906; see also Chaney, 470 U.S. at 831.
Notably, the merits of the government’s enforcement decisions in this area are judicially unre-
viewable. See Saavedra Bruno v. Albright, 197 F.3d 1153, 1160 (D.C. Cir. 1999). Thus, the Court
could not judge the necessity of the information without impermissibly “second guessing the Sec-
retary’s assessment of [its law-enforcement] value” to officials in their exercise of judicially unre-
viewable executive power. See Center for Biological Diversity, 453 F. Supp. 3d at 38.
For that reason, at least one statutory purpose that might justify collecting the information
presents no “subject[ ] fit for judicial involvement.” District No. 1, Marine Eng’rs’ Beneficial
Ass’n v. Mar. Admin., 215 F.3d 37, 42 (D.C. Cir. 2000). The Court cannot determine whether the
statutory standard for necessity is satisfied without weighing “the Executive’s . . . judgments on
questions of foreign policy[,] national interest,” and enforcement discretion. See id. So it must
dismiss Plaintiffs’ APA claim under Rule 12(b)(6). Sierra Club, 648 F.3d at 853–55.
C. Plaintiffs Have Not Stated a First Amendment Claim Because the Disclosure
Requirement is Rationally Connected to Legitimate Government Interests
Plaintiffs’ second claim is that the disclosure requirement violates the First Amendment.
23
Compl. ¶ 78. They explain that the requirement implicates the rights “to speak anonymously, to
associate privately, and to receive information and ideas.” ECF No. 32 at 44. They assert that the
requirement further offends the Constitution by its overbreadth. Id. To evaluate Defendants’ mo-
tion to dismiss that constitutional claim, the Court must decide first what tier of judicial scrutiny
applies. 7 That is a “purely legal question” and so is appropriate for resolution on a motion to
dismiss. See Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993).
Defendants say the Court’s review here must be “limited given that the policy concerns a
condition of entry into the United States by a foreign national.” ECF No. 31-1 at 50. They there-
fore argue that the Court should apply a “deferential standard” of review. Id. Under that standard,
they contend, the requirement passes muster because it “advance[s] the Government’s legitimate
national-security interest in sufficiently screening and vetting foreign nationals before they are
allowed to enter the country.” Id. at 56.
The Court agrees with Defendants that it must tread carefully. That is because the “admis-
sion and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Gov-
ernment’s political departments largely immune from judicial control.’” Trump v. Hawaii, 138
S. Ct. 2392, 2418 (2018) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). But even when that
principle applies, courts must “engage[ ] in a circumscribed judicial inquiry” if the action “burdens
7
See, e.g., Sanchez v. Off. of State Superintendent of Educ., 45 F.4th 388, 395–96 (D.C.
Cir. 2022), cert. denied, 143 S. Ct. 579 (2023) (explaining that, “[a]t the motion-to-dismiss stage”
on rational-basis review, “the plaintiff must plausibly allege facts showing that no reasonably con-
ceivable state of facts could provide a rational basis for the challenged policy”); Brown v. District
of Columbia, 390 F. Supp. 3d 114, 123–24 (D.D.C. 2019) (explaining that, where the application
of a higher tier of scrutiny might depend on factual questions, “courts typically do not reach the
merits of a First Amendment challenge at the motion-to-dismiss stage” (emphasis omitted)); BEG
Invs., LLC v. Alberti, 85 F. Supp. 3d 13, 36–38 (D.D.C. 2015) (dismissing a First Amendment
claim under Rule 12(b)(6) after concluding that the plaintiff had not plead facts “that must be
analyzed with strict scrutiny”).
24
the constitutional rights of a U.S. citizen.” Id. at 2419; see also Kleindienst v. Mandel, 408 U.S.
753, 765–70 (1972) (asking only whether the immigration decision was facially based on “a legit-
imate and bona fide reason”). It follows that courts must also evaluate the burdens on the consti-
tutional rights of foreign nationals, if those exist. 8 The Court thus begins by defining the scope of
the constitutional rights at issue.
1. Constitutional Rights at Issue
Plaintiffs describe three ways in which they say the disclosure requirement burdens some
individuals’ constitutional rights. First, Plaintiffs argue that the chilling effect of the require-
ment—that is, its disincentive to speech and association—deprives U.S. citizens of the rights to
hear the speech of would-be visa applicants and to associate with them. ECF No. 32 at 51–52.
Second, they contend that the government has impermissibly conditioned eligibility for a benefit
on the registration of visa applicants’ speech and associations. Id. at 50–51. Third, they say the
requirement unlawfully erases visa applicants’ protected anonymity in their online speech and as-
sociations. Id. at 48–49.
Plaintiffs’ first theory—which relies on the purported generalized right of U.S. citizens to
hear the unidentified speech of unidentified persons—is flawed. Although the Supreme Court has
recognized the “right to receive information and ideas,” Mandel, 408 U.S. at 762 (quotation omit-
ted), and the right to “associate for expressive purposes,” Roberts v. U.S. Jaycees, 468 U.S. 609,
8
The Supreme Court has never held that burdens on the constitutional rights of foreign
nationals trigger even a circumscribed judicial inquiry in this area because, as reflected in Trump
v. Hawaii, Mandel, and other such cases, the relevant foreign nationals had no such rights. See
Trump v. Hawaii, 138 S. Ct. at 2419; Mandel, 408 U.S. at 762; Kerry v. Din, 576 U.S. 86, 88
(2015) (plurality opinion). But to the extent foreign nationals are protected by the U.S. Constitu-
tion, see generally Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 200–03
(D.C. Cir. 2001), the Court sees no reason to treat burdens on their rights differently than those on
the rights of citizens. The content of those rights is, after all, the same no matter who possesses
them. See id. at 203–209 (applying the ordinary due-process standards to foreign organizations).
25
622–23 (1984), it has done so only in the context of specific speech and specific associations. In
Mandel, for instance, the Court recognized that U.S. citizens were entitled to “hear, speak, and
debate with” a particular noncitizen who had been denied entry into the country. 408 U.S. at 762.
Similarly, in Lamont v. Postmaster General, the government refused to deliver specific mail con-
sidered “communist political propaganda” unless a recipient affirmed he wished to receive it. 381
U.S. 301, 303–04 (1965). The Court held that requirement was an “unconstitutional abridgement
of the addressee’s First Amendment rights.” Id. at 307. Plaintiffs cite no case supporting the idea
that U.S. citizens can claim a generalized right to hear more speech from or to form more associ-
ations with unidentified persons.
Put another way, Plaintiffs’ theory conflicts with the precept that “freedom of speech pre-
supposes a willing speaker.” Competitive Enter. Inst. v. U.S. Dep’t of Transp., 856 F.2d 1563,
1566 (D.C. Cir. 1988) (alteration adopted) (quoting Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, 425 U.S. 748, 756 (1976)). The Supreme Court has described speakers’ rights
and listeners’ rights as “reciprocal.” Va. Citizens, 425 U.S. at 757. For that reason, some courts
have concluded that a listener’s right is “derivative of the First Amendment rights of the speaker.”
See Martin v. EPA, 271 F. Supp. 2d 38, 47 (D.D.C. 2002). That is not always the case—the
speakers in Mandel and Lamont lacked First Amendment rights—but that framing still captures
the idea that rights to free speech and association exist only vis-à-vis specific expressive activity.
See also Cato Inst. v. SEC, 438 F. Supp. 3d 44, 53–54 (D.D.C. 2020); Hardy v. Hamburg, 69 F.
Supp. 3d 1, 19–20 (D.D.C. 2014). Thus, to rely on listeners’ rights, Plaintiffs must “identify a
willing speaker” who “would provide the information” some would-be listener or associate “would
like to receive.” Competitive Enter. Inst., 856 F.2d at 1566.
Plaintiffs’ complaint does not approach that specificity. Instead, Plaintiffs allege that the
26
disclosure requirement “deprives [U.S. citizens] of opportunities to hear from and engage with
[noncitizens]” and that citizens “no longer enjoy” online interactions “to the same extent they pre-
viously did.” Compl. ¶ 69. And they fear that their in-person events will suffer from reduced
attendance, diluting their associational benefits. Compl. ¶ 73. These allegations fail to identify a
particular instance of speech that any person wishes to—but cannot—hear. And that aspect of
these allegations takes them far afield from the relevant caselaw. The general desire to interact
more online is quite different than the desire to “hear, speak, and debate with” a particular noncit-
izen who, despite wishing to speak in a specific instance, has been prevented from doing so. See,
e.g., Mandel, 408 U.S. at 762. In the end, Plaintiffs cite no case in which any court has recognized
such a nebulous First Amendment theory. Thus, it does not support a First Amendment claim.
That leaves Plaintiffs’ second and third burden theories. Unlike their first, these theories
rely on the First Amendment rights of noncitizens interested in applying for a relevant visa. So a
quick detour is necessary to determine the extent to which any such rights exist in the first place.
Plaintiffs argue that noncitizens “enjoy full First Amendment protection” if they have “substantial
connections to the United States.” ECF No. 32 at 22, 46. The caselaw, however, does not see it
that way.
The “substantial connections” language comes from United States v. Verdugo-Urquidez,
494 U.S. 259, 271 (1990). There, the Court used that phrase to reject a criminal defendant’s argu-
ment that the Fourth Amendment protected him against the search of his two homes in Mexico.
Id. at 262, 270–71. The defendant was present in the United States when his homes were searched,
but he was brought here by law-enforcement officers and held against his will. Id. at 271. The
Court rejected the view that his physical presence here was enough to confer constitutional rights,
requiring instead that an alien both “come within the territory of the United States and develop[ ]
27
substantial connections with this country.” Id. (emphasis added).
The Supreme Court recently reaffirmed that both conditions are necessary. In rejecting the
view that “the First Amendment could extend to foreign organizations operating abroad,” the Court
described as “long settled” the principle that “foreign citizens outside U.S. territory do not possess
rights under the U.S. Constitution.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140
S. Ct. 2082, 2086 (2020) (citing, among other cases, Verdugo-Urquidez, 494 U.S. at 265–75). The
Court acknowledged that “foreign citizens in the United States may enjoy certain constitutional
rights,” but it emphasized the territorial limitations of that rule. See id.Plaintiffs’ position about First Amendment protections, then, mistakes a necessary condi-
tion for a sufficient one. A foreign citizen who both is present in and has “substantial connections”
to the United States has First Amendment rights. Nat’l Council of Resistance, 251 F.3d at 203.
But once she leaves the country or areas under its territorial control, those personal constitutional
rights vanish. See Agency for Int’l Dev., 140 S. Ct. at 2086. 9
Plaintiffs have alleged that many noncitizens affected by the disclosure requirement have
“substantial connections to the United States.” Compl. ¶ 43. The facts supporting that conclusion
include the existence of noncitizens who live here, have family here, and work and attend school
9
Of course, that is not to say that a foreign citizen abroad lacks rights relating to property
that remains in the United States. A foreigner who “acquires or holds property in this country may
invoke the protections of the Constitution when that property is placed in jeopardy by government
intervention.” Nat’l Council of Resistance, 251 F.3d at 204. The D.C. Circuit has long recognized
that “a foreign national residing outside the United States” may retain a “substantial connection”
to the country and so retain constitutional protection vis-à-vis her property holdings. Rahimov v.
Gacki, No. 19-2554 (JEB), 2020 WL 1911561, at *4–5 (D.D.C. Apr. 20, 2020) (collecting cases).
Nor does the Court here express any view about the constitutional rights of noncitizens in
United States custody, a question the Circuit recently declined to decide categorically. See Al-
Hela v. Biden, 66 F.4th 217, 226–28 (D.C. Cir. 2023) (en banc); id. at 249–60 (Rao, J., concurring
in the judgment in part and dissenting in part) (arguing that “constitutional rights do not extend to
aliens without property or presence in the sovereign territory of the United States”).
28
here. Id. Accepting those allegations as true, the disclosure requirement ultimately will affect
U.S. residents who have “accepted some societal obligations” here and thus have a substantial
connection to the country. See Verdugo-Urquidez, 494 U.S. at 273.
Still, the requirement applies only to visa applications “from abroad.” Compl. ¶ 23. Even
if it is “common,” as Plaintiffs allege, for U.S. residents to leave the country and so submit visa
applications “from abroad,” id., the requirement definitionally applies only to “foreign citizens
outside of U.S. territory,” Agency for Int’l Dev., 140 S. Ct. at 2086. No applicant, then, has First
Amendment rights when she submits the application.
Returning to Plaintiffs’ theories, their second theory of constitutional burden is that the
government may not require “individuals to register their speech or associations with the govern-
ment as a condition of” their admissibility to the country. ECF No. 32 at 50. It relies on cases
such as Shelton v. Tucker, where a state had required every public schoolteacher or professor “to
file annually an affidavit listing without limitation every organization to which he has belonged or
regularly contributed within the preceding five years.” 364 U.S. 479, 480 (1960). That require-
ment, the Supreme Court held, was an unconstitutional “interference with personal freedom” in
part because the teachers served “at the absolute will of those to whom the disclosure must be
made.” Id. at 486. But even assuming consular officers exercise comparable authority over visa
applications, those cases are inapposite because, as explained above, the applicants have no con-
stitutional “right of free association” to protect. Id. For this reason, Plaintiffs’ second theory does
not support a claim under the First Amendment either.
That leaves Plaintiffs’ third theory. That theory—the idea that the disclosure requirement
erases future visa applicants’ online anonymity and thereby discourages their speech and associa-
tions, ECF No. 32 at 48–49—is much broader in scope than the second. Plaintiffs allege that these
29
noncitizens forgo speech and associations before they need to apply for a visa. See Compl. ¶ 55.
In other words, those who know they will someday need a visa renewed—including those who
now live in the United States and have substantial connections here—“have deleted past posts,
altered or limited their speech, or entirely dropped out of certain groups on social media.” Id.Because the accompanying harms occur while the noncitizens are still in the United States, this
aspect of the disclosure requirement does bear on their First Amendment rights.
The rights to speak and associate of these noncitizens include, typically, the rights to do so
anonymously, even where a person has already revealed aspects of his identity. Buckley v. Am.
Const. L. Found., Inc., 525 U.S. 182, 198–200 (1999). For that reason, “compelled disclosure, in
itself, can seriously infringe on privacy of association and belief.” Buckley v. Valeo, 424 U.S. 1,
64 (1976). The Supreme Court has thus held unconstitutional, for example, a requirement that
petition circulators wear name badges, Am. Const. L. Found., 525 U.S. at 197–200, a requirement
that literature related to political campaigning contains the name and address of the author, McIn-
tyre v. Ohio Elections Comm’n, 514 U.S. 334, 348–53 (1995), a requirement that door-to-door
canvassers get municipal permits, Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton,
536 U.S. 150, 165–69 (2002), and a requirement that all handbills contain the name of the writer
and the name and address of the sponsor, Talley v. California, 362 U.S. 60, 64–65 (1960). Plain-
tiffs compare the noncitizens affected by the disclosure requirement to the plaintiffs in these cases.
See ECF No. 32 at 48–49.
But these cases are all distinguishable for the same reason: they all involved direct re-
strictions on speech, not abstract disincentives to speech. That is, the disclosure requirement in
those cases was a precondition of speech, not a consequence of a later decision to apply for a
benefit. See Am. Const. L. Found., 525 U.S. at 188–89; McIntyre, 514 U.S. at 338 & n.3;
30
Watchtower Bible, 536 U.S. at 154–57; Talley, 362 U.S. at 60–61. Plaintiffs have not alleged that
they must divulge their social-media identifiers before they can speak or associate on those plat-
forms. And the Supreme Court has explained that a disclosure requirement’s timing is significant
and that a speaker’s “interest in anonymity is greatest” when she speaks. Am. Const. L. Found.,
525 U.S. at 199. Thus, the Court noted that “McIntyre left room” for some requirements that take
effect after speech occurs. Id. at 200.
Still, that room is limited. Even a subsequent disclosure requirement may trigger height-
ened scrutiny, Doe v. Reed, 561 U.S. 186, 195–96 (2010), particularly where challengers show “a
reasonable probability that the compelled disclosure of personal information will subject them to
threats, harassment, or reprisals from either Government officials or private parties,” id. at 200(quoting Buckley, 424 U.S. at 74). Although such a requirement is a “more subtle [form of] gov-
ernmental interference” with speech, the fact that disclosure may risk harm to speakers means that
the “rights of free speech and free association . . . need breathing space to survive.” Gibson v. Fla.
Legis. Investigation Comm., 372 U.S. 539, 544 (1963) (quotations omitted).
The most prominent case in which the Supreme Court applied those principles is NAACP
v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). There, Alabama sought to enforce against the
NAACP a requirement “to qualify before doing business” in the state. Id. at 451. During the
enforcement proceeding, Alabama demanded the “names and addresses” of all NAACP “‘mem-
bers’ and ‘agents’” in the state, which plaintiffs argued burdened their associational rights after the
fact. Id. at 453. The Court held that compelled disclosure of the membership lists would “abridge
the rights of its rank-and-file members to engage in lawful association.” Id. at 460. It recognized
“that compelled disclosure of affiliation with groups engaged in advocacy” could be “as effective
a restraint on freedom of association” as “direct action to restrict the right.” Id. at 461–62 (citations
31
omitted). Because of the members’ justified fears that disclosure would lead to reprisals, the Court
found the disclosure “likely to affect adversely” their associational rights. Id. at 462–63.
More recently, the Supreme Court reaffirmed that a subsequent disclosure requirement
“burden[s] . . . associational rights” if it creates a “risk of a chilling effect on association.” Ams.
for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2389 (2021). The risk itself, or the “‘possible
deterrent effect’ of disclosure” is enough. Id. at 2388 (quoting NAACP, 357 U.S. at 461). That is
true even where the disclosed information is not publicly available, where the government assures
those affected that the data will be treated as confidential, and where not all associates share the
desire for anonymity. Id.Plaintiffs’ complaint satisfies the standard reflected in these cases for a First Amendment
claim. They allege more than a mere risk that the disclosure requirement will chill online speech
and association—they say it is already happening. Compl. ¶ 55. They plausibly attribute that
phenomenon to the same concerns accepted by the Court in NAACP and Americans for Prosper-
ity—fears that they will suffer reprisals because of their speech or associations, whether from the
United States or from foreign governments. Compl. ¶¶ 57–61. And that chilling effect material-
izes, in some cases, long before a noncitizen must apply for a visa, including while he lives in the
United States and remains protected by the Constitution. See Compl. ¶ 55.
Thus, “the protections of the First Amendment are triggered” by Plaintiffs’ allegations.
Ams. for Prosperity, 141 S. Ct. at 2389. So the Court proceeds to determine the level of scrutiny
it must apply to evaluate whether they state a valid First Amendment claim.
2. The Degree of Judicial Scrutiny
Ordinarily, the Court’s conclusion that the disclosure requirement burdens First Amend-
ment rights would compel “exacting scrutiny” of the rule. See Ams. for Prosperity, 141 S. Ct. at
32
2382–83 (plurality opinion) (rejecting an argument that strict scrutiny should apply instead). 10
Under exacting scrutiny, the government has the onus to show the burden’s lawfulness. Clark v.
Library of Congress, 750 F.2d 89, 94 (D.C. Cir. 1984). So if exacting scrutiny applied, the Court
would likely deny Defendants’ motion to dismiss because it challenges only the legal sufficiency
of Plaintiffs’ complaint. See, e.g., Brown, 390 F. Supp. 3d at 126–27.
But Defendants point to a countervailing principle: This case, they say, concerns “a con-
dition of entry into the United States by a foreign national.” ECF No. 31-1 at 50. For that reason,
they advocate a much more deferential standard of review. Id. at 50–53. Plaintiffs reply that the
rule “imposes [only] a procedural requirement” and so does not implicate the rationale for courts’
deferring to the other branches of government. ECF No. 32 at 45–47.
The Court agrees with Defendants. Two cases are especially relevant to this question:
Mandel and Trump v. Hawaii.
In Mandel, the Supreme Court observed that “ancient principles of the international law of
nation-states,” reflected in a long line of its cases, establish that “the political branches of govern-
ment” have exclusive control over the admission and exclusion of aliens. 408 U.S. at 765–66
(quotation omitted). So where Congress has given the executive branch discretion to make immi-
gration decisions, and the executive has provided “a facially legitimate and bona fide” explanation,
“courts will neither look behind the exercise of that discretion, nor test it by balancing its justifi-
cation against the First Amendment interests of those who” challenge that decision. Id. at 770.
Later, the Court explained that Mandel’s rationale does not depend on “the nature of the policy
10
See also Republican Nat’l Comm. v. Pelosi, 602 F. Supp. 3d 1, 34–35 (D.D.C. 2022)
(explaining that surviving exacting scrutiny requires the strength of the government’s interest to
reflect the seriousness of the burden the action imposes and that the action is narrowly tailored to
further the government’s interest without substantial overbreadth), vacated as moot, 2022 WL
4349778 (D.C. Cir. Sept. 16, 2022).
33
choice at issue,” such as national security. Fiallo, 430 U.S. at 795–96. Instead, it applies to all
cases “in the area of immigration and naturalization” because “[t]he conditions of entry for every
alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining
such classification, the right to terminate hospitality to aliens, [and] the grounds on which such
determination shall be based” are outside courts’ “power . . . to control.” Id. (quotations omitted).
Judicial inquiry under that standard, limited though it is, is often called “Mandel review.” See,
e.g., Udugampola v. Jacobs, 70 F. Supp. 3d 33, 42–45 (D.D.C. 2014).
The Supreme Court most recently discussed Mandel review in Trump v. Hawaii. There, it
appeared to affirm that the standard applies when courts are asked to “‘probe and test the justifi-
cations’ of immigration policies.” 138 S. Ct. at 2419 (quoting Fiallo, 430 U.S. at 799). It even
offered an expansive “upshot” of the Mandel line of cases: that judicial “inquiry into matters of
entry and national security is highly constrained.” Id. at 2419–20. But it did not actually apply
Mandel review. See id. at 2420. Instead, the Court “assume[d]” that rational-basis review applied
and—because the contested policy satisfied that higher tier of scrutiny—did not settle the issue of
which methodology to use. See id. at 2420–23. That resolution did not “purport to alter Mandel.”
Yafai v. Pompeo, 924 F.3d 969, 973–74 (7th Cir. 2019) (opinion of Barrett, J.). The Court simply
assumed that rational-basis review applied “at the request of the government.” Id. at 973; see also
Trump v. Hawaii, 138 S. Ct. at 2420.
Defendants here request a similar assumption. Although they mainly argue that the Court
should apply Mandel review, ECF No. 31-1 at 51–52, they rely on Trump v. Hawaii to suggest
that the Court might also assume that rational-basis review applies, id. at 52.
Plaintiffs try to distinguish those cases on two grounds. First, they point out that Mandel
and Trump v. Hawaii “focused principally on foreigners outside the United States who . . . lacked
34
their own First Amendment rights.” ECF No. 32 at 46. This case is different, they explain, because
it concerns “the First Amendment rights of [organizations and people] who currently reside in the
United States.” Id. Second, they observe that those cases concerned what they call “substantive
admissibility decisions”—that is, decisions about whether aliens may enter the United States. Id.
at 46–47 (emphasis omitted). The disclosure requirement, they claim, is “a procedural requirement
on all visa applicants[ that] makes no substantive [admissibility] determination.” Id. at 47.
Plaintiffs’ first argument misconstrues the Supreme Court’s decisions. The premise of ju-
dicial review in Mandel and Trump v. Hawaii was that the challenged actions burdened the con-
stitutional rights of U.S. citizens. See Mandel, 408 U.S. at 762–65; Trump v. Hawaii, 138 S. Ct.
at 2419. The same was true in other cases in which the Court applied Mandel review. 11 If Plaintiffs
mean to assert that a special situation is present where the rightsholder is the same person whose
entry into the United States may be affected, they cite no case for that novel proposition. And the
Court sees no reason to treat some First Amendment rightsholders as more equal than others. Be-
sides, the rationale for applying Mandel review is categorical; it depends on the type of “decision[ ]
made by the Congress or the President,” not the identity of the person asserting the right or the
severity of the asserted burden. See Fiallo, 430 U.S. at 796 (quotation omitted).
Plaintiffs’ second argument is also unpersuasive. For starters, even if the Court were to
accept Plaintiffs’ substance-procedure distinction, it is not clear that the disclosure requirement
“makes no substantive determination as to the admissibility of any applicant,” as they say. ECF
11
See, e.g., Fiallo, 430 U.S. at 794–95 (rejecting the argument that the Court should apply
greater scrutiny because the challenged action “infringed upon the due process rights of citizens
and legal permanent residents”); Din, 576 U.S. at 101–06 (Kennedy, J., concurring in the judg-
ment) (applying Mandel review to conclude that any right to due process held by a U.S. citizen
was satisfied); Cardenas v. United States, 826 F.3d 1164, 1167 (9th Cir. 2016) (holding that Justice
Kennedy’s opinion in Din is “controlling”).
35
No. 32 at 47. Plaintiffs took great pains to explain that a visa applicant must divulge the requested
information to complete her application. See Compl. ¶¶ 28–33 (explaining that the requirement
applies to “nearly all applicants,” that it is “mandatory and makes no exception,” and that it “ap-
plies nearly universally”). Violating the rule thus makes an applicant inadmissible. See 8 U.S.C.
§ 1201(a)(1) (conditioning both types of visas on a “proper application”). In other words, the rule
states a “condition[ ] of entry,” which the Supreme Court has explicitly recognized as a type of
action subject to Mandel review. Fiallo, 430 U.S. at 796 (quotation omitted). 12
That said, there is no reason to think Plaintiffs’ substance-procedure distinction matters.
As Defendants point out, ECF No. 44 at 32, the Supreme Court has justified Mandel review on the
grounds that “[a]ny policy toward aliens is vitally and intricately interwoven with
12
Reference to the substance-procedure distinction in choice-of-law analysis crystalizes
the conclusion that the disclosure requirement is more accurately characterized as substantive.
Although the Supreme Court long ago tried neatly to divide truly substantive rules from truly pro-
cedural ones, see Guaranty Tr. Co. v. York, 326 U.S. 99, 109 (1945), it has since explained that
“every procedural variation” can, under the right circumstances, control the outcome of a process,
see Hanna v. Plumer, 380 U.S. 460, 468–69 (1965). So courts must consider whether the rule at
issue is so significantly related to the resolution of the dispute that its application is likely to influ-
ence a party’s ex ante choice of forum. See Hanna, 380 U.S. at 469; Burke v. Air Serv. Int’l, Inc.,
685 F.3d 1102, 1109 (D.C. Cir. 2012). Put another way, a rule is substantive if it is “bound up
with the definition of the rights and obligations of the parties,” not “merely a form and mode of
enforcing” existing rights and obligations. See Byrd v. Blue Ridge Rural Elec. Co-op, Inc., 356
U.S. 525, 536 (1958).
Applied here, the question is whether the information provided in the disclosure section of
the application is likely to make a “material difference” in a consular officer’s eventual admission
decision. Cf. Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827, 831 (9th Cir. 2006). And
framed that way, even Plaintiffs must concede that the disclosure requirement is a substantive part
of the visa-application process. Their interest in challenging the requirement stems, after all, from
their fears, and those of their members and partners, that the information collected under the re-
quirement will be used by consular officers to delay, deny, or revoke visas. See Compl. ¶¶ 57–59.
Indeed, they have alleged that the disclosure requirement now forms such an important part of the
visa-application process that some of their “members and partners are no longer applying for U.S.
visas—and are foregoing personal, educational, and professional opportunities” to avoid it.
Compl. ¶ 56. Their selective attempts to diminish the disclosure requirement as mere procedural
red tape cannot withstand scrutiny.
36
contemporaneous policies in regard to the conduct of foreign relations and the war power.” Trump
v. Hawaii, 138 S. Ct. at 2418 (quotation omitted and alteration adopted). And Justice Kennedy’s
controlling concurrence in Din applied Mandel review to the question of “how much information
the Government is obliged to disclose about a . . . denial of a visa.” See 576 U.S. at 106. The
amount and type of information an applicant receives after a denial cannot possibly be more sub-
stantive than the amount and type of information an applicant must provide to be considered for
admission.
So although there is no reason to think that Mandel review has been displaced, this Court
will follow the Supreme Court’s lead in Trump v. Hawaii and assume that rational-basis review
applies. That is for two reasons. First, like in Trump v. Hawaii, the government has invited the
Court to do so. See 138 S. Ct. at 2420; ECF No. 31-1 at 52; ECF No. 44 at 32–33. Second, that
assumption does not affect the outcome. A policy that survives rational-basis review will of course
survive Mandel review and, as the Court will explain, the disclosure requirement breezes through
rational-basis review.
3. Rational-Basis Review
Rational-basis review begins with “a strong presumption” that the challenged action is
valid. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). Plaintiffs have the burden to
negate “every conceivable basis” that might support the requirement. Id. at 315 (quotation omit-
ted). Under that standard, courts “hardly ever” hold a policy unconstitutional. Trump v. Hawaii,
138 S. Ct. at 2420. The Court would need to conclude that the law’s only purpose is the “bare
desire to harm a politically unpopular group,” id. (quoting Dep’t of Agric. v. Moreno, 413 U.S.
528, 534 (1973)), or that it is “inexplicable by anything but animus,” id. (quoting Romer v. Evans,
517 U.S. 620, 632 (1996)).
37
At the pleading stage, the Plaintiff “must plausibly allege facts showing that no reasonably
conceivable state of facts could provide a rational basis for the challenged policy.” Sanchez., 45
F.4th at 396. Even the possibility that the government relied on “rational speculation unsupported
by evidence or empirical data” is enough to defeat a complaint. Id. at 398 (quoting Beach, 508
U.S. at 315). If a “conceivably rational justification” for the policy is “readily apparent,” the Court
must dismiss the claim. Id.The disclosure requirement is far from inexplicable. Plaintiffs do not contest that the prof-
fered interests of “confirming visa applicants’ identities [and] determining their visa eligibility”
are “important government interests.” ECF No. 32 at 53. Instead, they claim the government
“cited no evidence” that the disclosure requirement will advance those interests. Id. (quotation
omitted). But as the Court has just explained, the government does not have to do so. See Sanchez,
45 F.4th at 396. And given the amount of personal information that can be gleaned from many
social-media users’ accounts, the disclosure requirement is “is self-evidently (and rationally) con-
nected” to those ends. Id. at 398.
Plaintiffs also find fault with the requirement’s breadth, noting that it applies to all appli-
cants absent “individualized suspicion.” ECF No. 32 at 54. Defendants think that argument “puts
the cart before the horse” because, in many cases, the government does not know which applicants
may warrant further scrutiny until it reviews their social-media activity. ECF No. 31-1 at 56. The
Court agrees with Defendants. It is at least conceivable that some visa applicants’ claims appear
true until they are compared with a more objective record of their biographical details and associ-
ations. And in one way, the requirement’s universality counts in its favor under rational-basis
review. If the requirement applies to nearly all applicants, it would be hard to conclude that the
motivation behind it was an “irrational prejudice” against applicants from any particular subgroup.
38
Cf. Trump v. Hawaii, 138 S. Ct. at 2420 (quotation omitted).
Nor is it irrational to retain the information past the disposition of an application, as Plain-
tiffs suggest. ECF No. 32 at 55. The government explains that it retains the information to help
enforce immigration and national-security laws prospectively, such as by monitoring visa holders
for “grounds for deportability” or the denial of future benefits. ECF No. 31-1 at 54–55. Again,
that rationale is self-evidently connected to inarguably legitimate government interests. Cf. Pinho
v. INS, 249 F.3d 183, 190 (3d Cir. 2001) (describing “foreign relations, national security policy,
and compliance with on-going government programs” as “legitimate government interests”).
At bottom, Plaintiffs do not seriously engage with the rational-basis standard. Their argu-
ment rests mainly on their contention the Court has rejected—that heightened scrutiny applies,
shifting the burden to the government. See ECF No. 32 at 52–56 (contending that Defendants
cannot carry their burden “even under intermediate scrutiny”). Under rational-basis review, their
position amounts to a challenge based on the “effectiveness and wisdom” of the disclosure require-
ment. See Trump v. Hawaii, 138 S. Ct. at 2421. Even if they are right when they call the require-
ment unwise and ineffective, that is no basis for the Court to “substitute [its] assessment” for that
of the executive branch. Id. The disclosure requirement is rationally connected to legitimate gov-
ernment interests. Thus, Plaintiffs have not stated a First Amendment claim.
* * *
Finally, Plaintiffs ask for leave to amend their complaint given the Court’s conclusion that
they have not stated a claim. See ECF No. 32 at 57. Yet ultimately, the main deficiency in their
complaint stems not from inadequate detail or correctable mistakes, but from the nature of the
39
government action they challenge. 13 For that reason, the Court finds that further allegations con-
sistent with those already pled could not cure the deficiency and so will dismiss the complaint with
prejudice. See Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (per curiam).
IV. Conclusion
For all the above reasons, the Court will grant Defendants’ motion to dismiss insofar as it
seeks dismissal for failure to state a claim. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: August 11, 2023
13
As explained above, the sole area in which the Court found Plaintiff’s complaint lacking
in specificity was in its failure to allege any particular U.S. citizen who wanted to hear the partic-
ular speech of any particular noncitizen whom the disclosure requirement dissuaded from speak-
ing. But the Court cannot fathom—and Plaintiffs have not proposed—how under these circum-
stances the complaint could be amended to address these deficiencies in a way that would make a
difference under rational-basis review.
40