ABA, U.S. Chamber of Commerce file amicus brief urging Tenth Circuit to reverse associational standing decision

Associational Standing
Speech First Inc. v. Shrum
Date: May 30, 2023

Issue: Whether an organization must specifically name its members, rather than using anonymous identification, to establish associational standing.

Case Summary: The American Bankers Association and the U.S. Chamber of Commerce (Amici) filed an amicus brief urging the Tenth Circuit to reverse a district court decision ruling which declared organizations must specifically name their members rather than using pseudonyms to establish associational standing.

Speech First sued the president of Oklahoma State University (OSU) for harassment and infringing OSU Students’ speech rights. Speech First relied on associational standing, which requires an organization to identify members who themselves possess Article III standing. In its complaint, OSU identified three member students as “Student A, B, and C,” and argued their First Amendment rights were violated. The students hold controversial positions on hot-button political issues and wish to discuss those issue without fear of punishment. The students seek to remain pseudonymous due to fear from retaliation from the university, their professors, peers and others for their participation in this lawsuit.

OSU moved to dismiss, arguing Speech First must identify its members by name under the Supreme Court’s decision in Summers v. Earth Island Institute. In Summers, environmentalist organizations claimed associational standing on behalf of their unidentified members. The Court rejected the organizations’ failure to identify members with standing. The Court explained “the requirement of naming the affected members has never been dispensed … but only where all the members of the organization are affected by the challenged activity.” In response, Speech First argued the case law requiring identification of members with standing should not apply with the same force at the motion-to-dismiss stage. Speech First also argued the case law interpreting Summers only requires organizations to identify members in some fashion to show specific individual members have standing.

The district court dismissed the case for lack of standing because Speech First did not name its members. Noting the Tenth Circuit’s silence on Summers, the court explained it is “inclined to take Summers at its word.” Speech First appealed the decision.

Amici filed a brief supporting Speech First. Amici argued the names of an association’s members are irrelevant to Article III standing because they do not pertain to injury, traceability, or redressability. Additionally, Amici asserted the legal names of an association’s members are similarly irrelevant in establishing associational standing. Associational standing exists if the organization has a member with standing, the lawsuit is germane to an organization’s mission, and the relief sought makes the members’ participation unnecessary. Amici pointed out several courts have recognized merely identifying one or more affected members is sufficient and an association need not specifically name the affected members.

Amici also argued the district court’s erroneous application of associational standing creates significant First Amendment problems. According to Amici, “the district court’s interpretation of Summers is not just incorrect on its own terms, it also runs headlong into the First Amendment and would threaten to chill protected speech”. Further, Amici explains the Supreme Court has long recognized associations have a First Amendment right to keep their membership anonymous from the government.

Bottom Line: Associational standing is critical for organizations to protect members who might face reprisal for participating in a lawsuit.

Documents: Opinion