Associational Standing
Speech First Inc. v. Shrum
Date: Feb. 9, 2024
Issue: Whether an organization must specifically name its members, rather than using anonymous identification, to establish associational standing.
Case Summary: In a 3-0 decision, a Tenth Circuit panel ruled organizations are not required to specifically name their members 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 issues without fear of punishment. The students seek to remain pseudonymous due to fear of 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 way 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.
On appeal, the American Bankers Association and the U.S. Chamber of Commerce (Amici) filed an amicus brief urging the Tenth Circuit to reverse. First, Amici argued the names of an association’s members are irrelevant to Article III standing because they do not affect injury, traceability, or redressability. Amici also argued the district court’s erroneous application of associational standing creates significant First Amendment problems. Amici emphasized that “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.
A unanimous Tenth Circuit panel reversed, concluding Speech First has standing to sue on behalf of its members. The panel explained that organizations have standing to sue if: at least one of its members would have standing to sue in the member’s own right; the interest it seeks to protect is germane to its purpose; and neither the claim asserted, nor the relief requested, requires the member to participate in the lawsuit. OSU did not dispute the second and third elements were satisfied, and merely contended the first element could not be satisfied when an organization’s members were not identified by name. According to the panel, OSU “suggested no reason why the use of a pseudonym by the injured member of the organization filing suit should defeat standing when the injured member alone would have standing to bring the claim as an individual plaintiff under a pseudonym.”
The panel also emphasized that longstanding and well-established doctrine in the federal courts establishes that anonymous persons may have standing to sue. The panel explained that Roe v. Wade has precedential value. In Roe, the Court determined that “despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person.” The panel also relied on NAACP v. Alabama ex. Rel. Patterson where the U.S. Supreme Court held that the anonymous status of an associations’ members “posed no standing hurdle.”
Bottom Line: The has been no indication of whether OSU will appeal the Tenth Circuit’s decision.
Documents: Opinion
