In 2011, the National Gang Intelligence Center—part of the FBI—included fans of the band “Insane Clown Posse,” also known as “Juggalos,” in its report on gang activity, describing Juggalos as a “hybrid gang” and claiming that “Juggalo subsets exhibit gang-like behavior and engage in criminal activity and violence.” Six plaintiffs (four Juggalos and the two members of ICP) filed suit against the DOJ and FBI, alleging, among other things, that the 2011 report violated their First Amendment rights to free speech and association and Fifth Amendment right to due process. The district court dismissed their suit for lack of Article III standing. However, in a unanimous decision issued earlier today, Parsons v. USDOJ, the Sixth Circuit held that the Juggalos had standing to proceed on their claims.
The Sixth Circuit found that a Juggalo serving in the Army with visible ICP tattoos alleged sufficient injury for standing because allegations of stigmatization and reputational injuies accompanied his belief that “because of the Juggalo gang designation, his identity as a Juggalo ‘places him in imminent danger of suffering discipline or an involuntary discharge.’” And the court rejected the government’s argument that the injuries of the other five plaintiffs—the cancellation of a music event, denial of an Army recruitment application, and brief police detentions and questioning—was not “fairly traceable” to the report because those decisions were made by independent third parties exercising their own judgment and were not explicitly dictated by the FBI or DOJ. The court explained:
[I]t is still possible to motivate harmful conduct without giving a direct order to engage in said conduct. The Juggalos allege that the injurious third-party actions were motivated by the DOJ gang designation. In the nebulous land of “fairly traceable,” where causation means more than speculative but less than but-for, the allegation that a defendant’s conduct was a motivating factor in the third party’s injurious actions satisfies the requisite standard.
The court took pains to emphasize that its “conclusion is based upon the allegations made in the Complaint” and that it should not be construed as an opinion “as to the 12(b)(6) motion to dismiss or the merits of the case.” However, regardless of how this particular case plays out, the Sixth Circuit has demonstrated that it is willing, in principle, to recognize that informational reports issued by government agencies can cause concrete harm and injury to the groups and/or individuals discussed therein.