UNITED STATES DISTRICT COURT FOR THE [__________] DISTRICT OF [__________]
[RESEARCH ORGANIZATION]; [INDIVIDUAL PLAINTIFF]; and [PUBLISHER], Plaintiffs,
v.
[AGENCY HEAD], in [his/her] official capacity; [ATTORNEY GENERAL], in [his/her] official capacity, Defendants.
Civil Action No. [__________]
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
On [date], [Defendant agency] [issued / Congress enacted] [cite the measure] (the “Restriction”), which makes it unlawful for any person, without a license from [agency], to “[quote operative language, e.g., ‘transmit any communication to, or knowingly receive and disseminate any communication from, any non-human intelligence’].” Violations are punishable by [penalties].
Plaintiffs do not challenge the government’s authority to control the export of specified weapons-related technical data, to license radio transmitters under content-neutral rules, or to conduct official relations with any non-human polity. Plaintiffs challenge the Restriction because it bars speaking to, and listening to and repeating, a class of speakers on the basis of who they are and what they might say, and because it requires a license before anyone may speak.
JURISDICTION AND VENUE
The Court has jurisdiction under 28 U.S.C. §1331. The Court may grant declaratory relief under 28 U.S.C. §§2201-2202 and injunctive relief under its equitable powers and 5 U.S.C. §§702, 706.
Venue is proper under 28 U.S.C. §1391(e) because [Plaintiff ____ resides here / Defendants reside here / a substantial part of the events occurred here].
PARTIES
[Research Organization] is a [nonprofit] that [describe scientific mission]. It has designed, and had scheduled for [date], a transmission program from [facility] under [FCC experimental license no. __ / application no. __]. The program’s content is [describe: mathematical and scientific messages; no controlled technical data]. The Restriction forbids the program without a license that [agency] may deny on the basis of message content.
[Individual Plaintiff] is a [describe] who reports [describe ongoing communication in plain terms]. [He/She/They] intend to continue those communications and to publish accounts of them.
[Publisher] publishes [books / a periodical / a website] that includes first-hand accounts of communication with non-human intelligence, including the accounts of [Individual Plaintiff], and intends to continue doing so.
Defendants are responsible for administering and enforcing the Restriction.
FACTS
[Describe the Restriction: text, definitions, licensing criteria, penalties, and any public statements by officials about its purpose and enforcement.]
[Describe each Plaintiff’s concrete plans, preparations, and expenditures; any license application and its status; and any warning or inquiry received from Defendants.]
The Restriction is not limited to technical data controlled under the International Traffic in Arms Regulations or the Export Administration Regulations, to coordinated services provided to any designated entity, or to transmitter characteristics. It applies to any communication, whatever its content.
STANDING AND RIPENESS
- A plaintiff may challenge a law before it is enforced against him where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979)). Each Plaintiff intends to engage in conduct the Restriction forbids, and Defendants have not disavowed enforcement. [Allege any statement of intent to enforce.]
CLAIMS FOR RELIEF
Count I: First Amendment (content-based and speaker-based restriction on speech)
Plaintiffs incorporate the preceding paragraphs.
The Restriction applies because of the identity of the listener or speaker and the topic of the communication. A law that is content based on its face is subject to strict scrutiny regardless of the government’s motive. Reed v. Town of Gilbert, 576 U.S. 155, 163-65 (2015).
The Restriction is not narrowly tailored to any compelling interest. The government’s interest in keeping weapons-relevant technical data from hostile actors is served by existing export controls on specified data, which Plaintiffs do not challenge. The Restriction reaches mathematics, greetings, descriptions of human culture, and personal accounts, none of which threatens that interest.
Count II: First Amendment (right to receive information)
- The First Amendment protects the right to receive information and ideas, including from foreign sources. Lamont v. Postmaster General, 381 U.S. 301, 305-07 (1965); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). The Restriction bars Plaintiffs from receiving and repeating communications from a willing speaker.
Count III: First Amendment (prior restraint and unbridled licensing discretion)
- The Restriction requires a license before speech and [does not limit the licensing official’s discretion by narrow, objective, and definite standards / does not require a decision within a specified brief period or provide prompt judicial review]. A licensing scheme of that kind is an unconstitutional prior restraint. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969); Freedman v. Maryland, 380 U.S. 51, 58-59 (1965).
Count IV: Fifth Amendment (vagueness)
- The Restriction does not define “non-human intelligence” or “communication” with enough definiteness that ordinary people can understand what conduct is prohibited, and it invites arbitrary enforcement. [Quote the definitions, or note their absence.] Vagueness is judged more strictly where a law reaches speech. FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).
Count V: Administrative Procedure Act [if the Restriction is a regulation or agency order]
- The Restriction is “contrary to constitutional right,” 5 U.S.C. §706(2)(B), and [exceeds the agency’s statutory authority, §706(2)(C) / was issued without notice and comment, §706(2)(D)].
[Alternative Count VI: Foreign Agents Registration Act as applied] [Use if the government treats contact activity as acting for a “foreign principal” under 22 U.S.C. §611(b) and demands registration.]
[Agency] has [demanded / threatened to demand] that Plaintiffs register under 22 U.S.C. §612 as agents of [describe the asserted principal]. Plaintiffs do not act “at the order, request, or under the direction or control” of any foreign principal (§611(c)(1)). Their communications are their own and are directed to [describe audience or recipient].
A non-human intelligence is not “a government of a foreign country,” “a foreign political party,” or “a person outside of the United States” within §611(b), and FARA’s registration and labeling requirements cannot be extended to Plaintiffs’ own speech without a clear statement by Congress. Applied to Plaintiffs, the registration demand is a content-based burden on speech and petition that fails strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155, 163-65 (2015).
PRAYER FOR RELIEF
Plaintiffs ask the Court to:
A. Declare that the Restriction violates the First and Fifth Amendments [and the APA] on its face and as applied to Plaintiffs;
B. Preliminarily and permanently enjoin Defendants from enforcing the Restriction against Plaintiffs [and others];
C. Award costs and reasonable attorney’s fees under 28 U.S.C. §2412; and
D. Grant such other relief as is just.
Dated: [__________] Respectfully submitted, [signature block]
