The associative position is not defeated by the pseudonym in the members’ declarations

From today’s decision of the Tenth Circuit Speech First, Inc. v. Shrumwritten by Judge Harris Hartz and joined by Judges Nancy Moritz and Veronica Rossman:

Speech First, Inc. is a national organization that describes its mission to include protecting free speech on college and university campuses. When Oklahoma State University (OSU) implemented three school-wide policies that allegedly chilled protected free speech, Speech First filed a lawsuit in federal court on behalf of its OSU student members against the OSU president Kayse Shrum. Three members each submitted a pseudonymous statement (using the names Student A, Student B, and Student C) describing how the policies would inhibit his constitutionally protected expression.

The only issue before us on appeal is whether the registrants’ use of pseudonyms prevented Speech First from establishing Article III standing to bring this action. Upon President Shrum’s motion, the United States District Court for the Western District of Oklahoma dismissed the lawsuit for lack of standing, ruling that the United States Supreme Court in Summers vs. Earth Island Institute (2009), stated that for an organization to be legitimized it must identify by name at least one member who would have the legitimacy to personally make the complaint.

We disagree with the district court. Long-standing and well-established doctrine in federal courts establishes that anonymous persons may have standing to file complaints. Anonymity wasn’t even an issue before the Supreme Court Summers. Although this opinion might read that only persons identified by their legal name may have standing, this was clearly not the Court’s intent. The opinion provided no indication, much less an emphatic statement, that it was repealing decades of precedent….

An organization like Speech First has standing to sue on behalf of its members if (1) at least one of its members would have standing to bring suit in their own right; (2) the interest it seeks to protect is relevant to its purpose; and (3) neither the claim asserted nor the relief sought requires the member to participate in the litigation. Shrum does not dispute that the second and third elements are satisfied here. The only issue raised on appeal is whether the first element can be satisfied when members of the organization on which Speech First relies for its reputation are not identified by name. For the reasons we will discuss, the answer to this question is yes.

For starters, there is a long tradition in federal courts of plaintiffs filing suits under pseudonyms. While Roe v. Wade (1973), has been annulled in other respects, still has the value of a precedent on the issue at hand. Discussing the issue of standing, the Court wrote:

Despite the use of the pseudonym, there is no suggestion that Roe is a fictitious person. For the purposes of his case, we accept his existence as true and established; her state of pregnancy from the beginning of her case in March 1970 until May 21 of that year when he filed an alias affidavit in the district court; and her inability to obtain a legal abortion in Texas.

So here too. Shrum suggested no reason to disbelieve any assertion in the statements regarding the legitimacy requirements. We are not precluding the possibility of such a challenge. But at this stage of the case, the courts should rely on the pleadings.

Because “the dismissal for lack of standing occurred at the defense stage, not on a motion for summary judgment or later in the litigation,” “the burden of establishing standing for Speech First is significantly lightened.” …”[E]each element [of standing] must be argued in the same way as any other argument for which the plaintiff has the burden of proof, Meaning whatwith the methods and level of proof required in the subsequent phases of the litigation.” … At this stage it is sufficient to assert the facts that establish the legitimacy to act. The OSU insists that it “cannot dispute the statements [in the declarations] because it cannot determine whether students are enrolled at OSU without knowing their names.” But the district court could later verify the existence and status of the pseudonymous members through an in-camera review, a process that protects anonymity.

This is not to say that there may not be concerns about lawsuits filed under the cloak of anonymity. There may be doubts about the person’s existence or good faith, which can be examined in court. And there may be concerns about whether anonymity is being misused, in which case the court may require the plaintiff to proceed under his legal name. See, for example, Luo vs. Wang (10th Circle 2023). But these questions have not arisen, and may never arise, in this case.

Shrum suggested no reason why the use of a pseudonym by the aggrieved member of the suing organization should defeat standing when only the aggrieved member would have standing to sue as an individual plaintiff under a pseudonym. Indeed, there has long been a Supreme Court authority upholding the legitimacy of organizations whose injured members are not named. See, for example, NAACP v. Alabama ex rel. Patterson (1958) (the anonymous status of the association’s members did not represent any permanent obstacle); Rumsfeld v. FAIR (2006) (“The District Court concluded that each plaintiff had standing to bring this lawsuit. … [W]We also agree that FAIR has standing.”). This court has aligned itself with the Supreme Court on this issue. We have previously argued that organizational standing is proper even when the qualifying member of the appellant organization is anonymous… .

With this context in mind, we turn to the Supreme Court decision on which Shrum primarily relies: Summers. In Summers several environmental organizations sought to force the U.S. Forest Service to implement regulations that would exempt certain categories of forestry projects from approval processes. In support of their challenge, the organizations submitted affidavits from two named members who said their recreational interests would be harmed by the regulations. But the Court concluded that the interests declared by members were inadequate. One member’s affidavit had been adequate to support his challenge to the application of the rules to a particular project, but the parties had since resolved their differences regarding the project and the affidavit did not cover upcoming projects for which it had been requested an injunction. Another appellant stated that he “had suffered damage in the past resulting from the development of Forestry Corps land” – but the damage complained of was not sufficient “because it was not linked to the application of the contested legislation, because it does not identify any particular site, and because it refers to a past harm rather than the imminent future harm sought to be enjoined.”

The Court then considered “a hitherto unheard of test of organizational standing” proposed by the dissent: “[W]However, by accepting the organization’s self-description of its members’ activities, there is a statistical probability that some of these members are threatened with concrete harm.” This “new approach to organizational standing law would make a mockery of our previous cases, which required the appellant organizations to make specific allegations demonstrating that at least one identified member has suffered or may suffer harm” (emphasis mine). “This requirement of We of affected members has never been eliminated in light of statistical probabilities, but only where All organizational members are affected by the contested activity” (first emphasis added).

Shrum argues that the use of the terms identified AND We establishes a ban on using pseudonymous affidavits to assert one’s legitimacy. We recognize that these two terms may be used to distinguish between pseudonyms and legal names. But to identify or name a person, the use of the legal name is not necessary. An attacker can be identified as “Number 6” in the lineup; someone can be named “Country Music Stars of 2023.” The main legal dictionary says so first name it is simply “identify”.[ ] or designate[e] a person or thing” and “distinguish”.[ ] that person or thing by others.”

The context tells us if Summers he was using words first name AND identify to indicate that standing cannot be based on harm suffered by a person using a pseudonym. And that context undermines Shrum’s interpretation. The Court was explaining that there must be a specific person injured, not just a statistical probability that some member will suffer an injury. This need can be met by identifying the injured member as “Member 1” as well as the name “Samuel Clemens” (which we usually call and identify as Mark Twain). Summers in itself did not in any way imply the use of pseudonyms, so there was no reason for the Court to distinguish between legal names and pseudonyms.

And there is even stronger reason to believe that the Court was not promulgating Shrum’s proposed rule. As noted above, for decades the Court has allowed standing on the basis of pseudonyms or total anonymity. And he forcefully rejected the dissent’s approach, pejoratively calling it “new” and “so far unheard of.” What are the chances that this same opinion will simultaneously reject generations of precedent and adopt the “novel” and “heretofore unheard of” thesis that pseudonymous affidavits cannot be considered to support standing? Not just adopt such a proposal, but do so without any announcement of rejection of its precedent? We believe the odds are quite low and decline to adopt this proposal without further guidance from the Supreme Court.

Michael Connolly, Cameron Norris, James Hasson and Thomas Vaseliou of Consovoy McCarthy PLLC represent Speech First.

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