Robert SPARKS, on behalf of himself and all others similarly situated, Mental Disability Law Clinic, Touro Law Center, on behalf of its constituents, Plaintiffs-Appellants, v. Charlotte SELTZER, in her official capacity of Executive Director of Creedmoor Psychiatric Center, Paulette Floyd, in her official capacity of Treatment Team Leader at Creedmoor Psychiatric Center, Defendants-Appellees, 380 F. App'x 26

SUMMARY ORDER Plaintiffs are institutionalized psychiatric patients who challenge the Creedmoor Psychiatric Center’s policy of permitting patient visits to be supervised on the order of an attending psychiatrist. Plaintiffs appeal a decision granting

summary judgment for defendants, and finding that the supervision of patient visits does not chill plaintiffs’ speech or violate their privacy rights. We assume the parties’ familiarity with the case. Plaintiffs argue that defendants’ policy of permitting supervision of patient visits on order of a psychiatrist violates their First Amendment rights. Specifically, they argue that the supervision of visits burdens their rights of familial association, and that this burden constitutes an objective harm that chills their speech.

The issue of the level of scrutiny to which burdens on the associational rights of institutionalized psychiatric patients should be subject appears to be a novel one in this Circuit. However, we do not reach this issue here because plaintiffs have not preserved their freedom of association claim on appeal. Plaintiffs explicitly stated below that they did not assert “a distinct cause of action for an association violation.” Relying on this concession, the district court refrained from analyzing whether Creedmoor’s supervision policy violated plaintiffs’ associational rights.

In spite of this, plaintiffs have substantially recast their theory of the case on appeal. Plaintiffs argue that they did not waive their association claim because this claim is merely “different in emphasis” from the claim they raised below.

They concede, however, that they stated below that they did not intend to assert a “distinct cause of action for an association violation.” Thus, even assuming plaintiffs did preserve a hybrid speech/association claim — a claim we have not so far recognized in this court — in view of their disavowal of any independent association claim, whatever association issues remain must be considered in the context of plaintiffs’ speech claim. The district court properly granted

summary judgment for the defendants on plaintiffs’ speech claim. While the district court did not explicitly characterize this claim as a hybrid speech/association claim, it nonetheless considered the associational aspects of the claim pressed by the plaintiffs, as it addressed the impact of defendants’ policy on plaintiffs’ ability to converse with visiting family members and friends.

Although, as the district court recognized, even “casual conversation among family members and friends” is entitled to some measure of First Amendment protection, to establish a First Amendment violation, a plaintiff must as a threshold matter show that her rights have been burdened or restricted. E.g., Tabbaa v. Chertoff, 509 F.3d 89, 102 (2d Cir.2007). It is well-settled that “[ajllegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).

Plaintiffs’ allegation that they are harmed by the presence of supervisors in or just outside the visiting room fails to satisfy the Laird “objective harm” requirement. We have held that even an actual investigation of a speaker, without more, does not constitute objective harm. See Fifth Ave. Peace Parade Comm. v. Gray, 480 F.2d 326, 330-32 (2d Cir.1973) (where protesters alleged that FBI investigation into their activities would have a chilling effect, “[t]he shivering here was self-induced”).

Afortioñ, the mere possibility of being overheard by a state actor who is not conducting an investigation, but instead is merely on hand to respond in the event of an emergency does not constitute objective harm. Indeed, as defendants note, there was not even much evidence of subjective chill here: of those patients whose visits have been supervised, only one testified that the presence of staff in the visiting room discouraged him from talking about certain subjects. Nor are we persuaded by plaintiffs’ argument that the supervision policy runs afoul of Wolfish v.

Levi, 573 F.2d 118 (2d Cir.1978), which held that the interception of prisoner mail impermissibly burdens the prisoners’ First Amendment rights. Id. at 130. In Wolfish, prisoners challenged a policy permitting prison guards to “randomly and routinely read out-going, non-privileged mail.” 573 F.2d at 130. Here by contrast, plaintiffs do not allege that defendants intend to listen in on their conversations, or even that they necessarily overhear what they say. Indeed, it appears to be undisputed that plaintiffs can avoid being overheard by talking softly.

Plaintiffs allege only that defendants’ employees sit in a location where they may overhear conversations. Plaintiffs’ claim that the possibility of being overheard may deter them from speaking freely. Again, this is the sort of “subjective chill” that is insufficient as a matter of law under Laird. The judgment of the district court is AFFIRMED. . Wolfish was overturned by Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

However, the Supreme Court explicitly noted that the prison officials did not challenge that portion of the decision enjoining the reading and inspection of inmate outgoing and incoming mail. Id. at 528 n. 9, 99 S.Ct. 1861.