William Carleton has an interesting and important post up at Counselor @ Law regarding a recent New York State Court decision involving Twitter, Occupy Wall Street, and something the court calls “standing.” Bill sets out the facts of the case in his post, but the gist as is follows: New York is investigating Malcolm Harris in connection with alleged disorderly conduct during the OWS (or #OWS, in the hashtag-laden parlance of the Court’s opinion) protests. Pursuant to that investigation, the New York DA’s office issued a subpoena to Twitter to produce Harris’s tweets related to #OWS. Harris was notified of the subpoena and moved to quash it. The Court denied Harris’s motion, holding that Harris “has no standing to move to quash the subpoena.”
Bill takes issue with the Court’s holding on standing — calling it “downright crazy” — and I tend to agree. He points out that Harris had “obvious interests at stake” in the subpoena, since the subpoena goes after his tweets in connection with a criminal investigation of him. How could he not have standing!?
Well, like I said, I agree with Bill — and I’d like to spend a few words expanding on that agreement and discussing how courts often use the term “standing” in all sorts of different circumstances with different meanings all of which leads to a good deal of sloppiness.
First, there’s the basic concept of standing that we all know and love: Article III standing, which is a constitutional limit on the exercise of the judicial power by courts. (Yes, I know the case is a New York State case, under the New York State Constitution, but I’m just talking in generalities at this point.) Accordingly, a plaintiff must have Article III standing for the court to even entertain her case (that is, to exercise the judicial power).
Article III standing requires the plaintiff to establish (1) an “injury in fact” (that is, some legally cognizable harm), (2) that the injury is “fairly traceable” to the defendant’s conduct, and (3) that the requested judicial action might actually redress the plaintiff’s injury. If the plaintiff can establish those three things, then she has Article III standing.
I think it is clear that Harris has Article III standing in connection with the Twitter subpoena: (1) He claims a harm to his privacy interest would result from the disclosure of his Tweets. Alternatively, if the disclosure of the Tweets lead to his criminal prosecution and conviction, that would be an injury in fact. (2) That harm is fairly traceable to the DA’s subpoena. (3) An order quashing the subpoena would redress his asserted harm. So there you go. Standing!
Well, that’s Article III standing. But that is not really what the New York Court is talking about in this case. The New York Court seems to be applying some form of “statutory standing,” which is a concept that I dislike and a word/terminology that I dislike even more. Why? Because it’s not standing. Basically, a statutory standing inquiry asks whether a particular plaintiff is within the group of people whose interests are meant to be protected by a given statute (or, here, protected by the Fourth Amendment).
You know what “statutory standing” sounds like to me? It sounds like the merits! After all, how do you decide whether a given plaintiff is within the group of people whose interests are meant to be protected by a given statute: You look to see if the plaintiff can satisfy the elements of the statute. If she can, and if she has Article III standing, then that’s all you need to know.
The New York Court’s decision, despite using the language of “standing” — which, in fairness, is the language of prior higher court opinions that the Court was applying — is actually talking about the merits of Harris’s argument: Does Harris have a protectable Fourth Amendment and/or privacy interest in his tweets given (a) that he published them to the public and (b) the provisions of the Twitter Terms of Service? But the question of whether Harris has a cognizable Fourth Amendment interest is not a “standing” question; it’s the only question. That’s the entire case!
Here is a ridiculous (hypothetical!) example of what I’m talking about and what the New York Court is doing in this case. Say I sue Timmy for battery because he hit me in the face with a rock. Clearly, I have standing: (1) My injury in fact is that he hit me with a rock. (2) That injury is fairly traceable to Timmy hitting me with the rock. (3) That injury is redressable under the common law with money damages. That was easy. I have standing. But then, during the trial, it comes to light that I made the whole thing up! Video evidence shows that Timmy never hit me with the rock. It was all a lie! So I lose the case.
But wait a second, if I was never really hit with the rock, I never really had an “injury in fact.” Does that mean I didn’t have “standing” to sue Timmy? Of course not. It just means that I lost on the merits.
So too with Harris and his motion to quash. The fact that he does not (according to the Court) have a protectable interest in his tweets does not mean he lacks standing; it just means that his motion to quash should be denied. There’s no need to couch that decision in the language of “standing.”
Why does this matter? Well, because actual Article III standing is rooted in the Constitution as a limit on the Judicial Power, a lack of standing is (I think) a jurisdictional (or at least jurisdictional-ish) defect. A court has an independent obligation to ensure that the parties before it have standing. The parties cannot agree to appoint “standing” on a given plaintiff. And defects in standing are not waivable. On the other hand, all this merits stuff is waivable, can be agreed to by the parties, is non-jurisdictional, etc. So that’s why it matters.
Aside from all this statutory standing stuff, there are also prudential doctrines of standing that are, I suppose, rooted in the courts’ inherent powers. Those doctrines (like third-party standing) are also called “standing” doctrines. But since they are not rooted in Article III (that is, they are not constitutionally required) they can be overruled or modified by statute. In any event, I’d be much happier if the only thing we called “standing” was Article III standing and the other doctrines were just called “the merits” or prudential “abstention” doctrines or something, so we could save standing for actual standing. It would make all this stuff much less confusing.
Ziff Blog 
(I’m Josh from the prawfs blog.)
The funny thing is that “standing” is not a new term. It’s been used since well into the nineteenth century — but usually to refer to what you call “prudential” or “statutory” standing (but what I would call “common law” standing, because it would usually be used to refer to whether a plaintiff would have a particular cause of action under this or that writ at the common law). Seriously, read the Sunstein article in the Columbia Law Review and the Winters article in the Stanford Law Review. They’re both long and dense, but also really interesting.
The odd concept is what you call “Article III” standing. That’s the newcomer to the party. I really think the problem of standing jurisprudence is quite understandable. It’s a common law doctrine that was formulated to do one thing, then it was coopted and warped by New Deal liberals to do something else, then that second generation principle was mutated yet again by Reagan conservatives to serve yet a third purpose. Is it any wonder that standing terminology and jurisprudence is so incoherent?
Thanks Josh. I will check out the articles you mention, provided that I don’t get scared off by the denseness! And I suppose it doesn’t really matter to me what the different doctrines are called; I wouldn’t care if we just called Article III standing something else. But whatever the terminology, I just think it should be separate and consistent so we all know what we’re talking about.
I guess this is my point. They’re not consistently separate. Article III standing has always echoed common law standing — which shouldn’t be surprising, given the former’s origins. In other words, if you look at what the Supreme Court is doing in its latest standing decisions, it’s muddling its way to the same exact common law standing conclusions that (especially) state courts have been reaching for decades. To be more specific: If you look at Breyer’s opinions in Akins or Massachusetts, they’re really quite similar to what you’d expect to see when state courts apply the common law “special interest” standing doctrine. (In the former, only actual — and not potential – beneficiaries will have a cause of action; in the latter, some state entity will have standing to proceed on their citizens’ behalf.)
In any event, I’m still trying to figure out how this will look on paper. Love to hear your thoughts.
I admit I am asking this without having read the articles you cited (though I did go back this morning and read over the “standing” section in my old Hart & Wechsler): When you say the doctrines are not “consistently separate,” what does that mean for the different effects of jurisdictional and non-jurisdictional concepts of standing? Don’t you have to make a distinction between (a) the doctrine (whatever you want to call it) that is rooted in Article III and (b) the common law, prudential, statutory, &c. doctrines by whatever name?
I mean that Article III and prudential and common law standing are all pretty much from the same doctrinal base. It just so happens that 90 years ago, we decided that certain of the existing common law rules governing causes of action also applied to keep certain plaintiffs out of federal court. Then 20 years ago, we decided to declare that certain of these “federal court” standing rules were in fact required by Article III and thus could not be changed by Congress. But all of that is just semantics (though semantics with profound practical implications, of course).