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Mental Hygiene Legal Serv., 785 F. Supp. 2d at 220 (finding standing because although law enforcement officials said they would not enforce the statute against the plaintiffs, nothing prevented future law enforcement officials from taking a contrary position). 4.AnalysisThis Court has found that the facts support each plaintiff’s standing to bring a preenforcement, facial challenge with respect to § 1021(b)(2). This Court has analyzed separately each plaintiff’s standing regarding his or her First and Fifth Amendment challenge and finds each plaintiff has standing with respect to each claim. 30In an analogous situation, courts have held that even voluntary cessation of illegal conduct has not eliminated standing. SeeLinton v. Comm’r of Health & Env’t, 30 F.3d 55, 57 (6th Cir. 1994) (“It is well-established that voluntary termination of unlawful conduct will not automatically remove the opposing party’s standing.”). Case 1:12-cv-00331-KBF Document 61 Filed 09/12/12 Page 62 of 112Case: 12-3644 Document: 12-2 Page: 62 09/17/2012 721184 112
63a.InjuryWith regard to their First Amendment challenge, at the March hearing each plaintiff testified credibly that, specifically due to concerns about § 1021(b)(2), he or she has already experienced a chilling of his or her written or oral speech or associational activities. The Court’s findings as set forth above, and more briefly summarized here, demonstrate actual chilling has occurred. Hedges testified that he changed speeches he planned to make, avoided certain associations, and was concerned about articles or writing he expected to undertake. O’Brien testified that she was withholding articles from publication; Wargalla testified that her organization had to contemplate changing participants in an online conference; Jonsdottir stated she has declined speaking engagements. SeePart II, supra. In addition, each plaintiff testified credibly to ongoing concerns regarding expected future First Amendment activities. SeePart II, supra. Such chilling of speech constitutes actual injury. Indeed, it is precisely the type of chilling that the Supreme Court has found as a basis for standing--including to bring a facial challenge. SeeBroadrick, 413 U.S. at 630. With respect to their Fifth Amendment challenge, each plaintiff testified credibly that he or she had read the statute and did not understand its scope and, in particular, whether Case 1:12-cv-00331-KBF Document 61 Filed 09/12/12 Page 63 of 112Case: 12-3644 Document: 12-2 Page: 63 09/17/2012 721184 112
64his/her activities would fall within that scope. SeePart II, supra. Without such definitional scope, and in the face of the Government’s inability to provide definitions for the key terms at issue or define the scope of § 1021(b)(2) and unwillingness to state in March that plaintiffs’ activities could not subject them to detention, there are adequate grounds to find plaintiffs’ vagueness concerns valid.