Law & Principles
Ray Carter | June 19, 2023
Groups across the political spectrum support students in free-speech lawsuit against OSU
Earlier this year, Speech First, a national civil-rights organization, sued Oklahoma State University (OSU), saying the university’s harassment, computer, and bias-incidents policies violate students’ First and Fourteenth Amendment rights.
Speech First represented three OSU students in the lawsuit who were associated with Speech First but did not identify those students by name.
A judge ruled the lawsuit could not proceed without the students’ identities being made public.
That decision is now being appealed, and several national organizations representing a wide political spectrum have weighed in by filing amicus briefs in support of preserving the anonymity of the OSU students and allowing the case to proceed.
The Chamber of Commerce of the United States of America and the American Bankers Association filed a joint brief that noted the two groups “regularly file challenges to overreaching government laws, regulations, and policies on behalf of their members” and that the organizations “engage in this type of litigation in part because their members are concerned about the potential for retaliation if they identify themselves to the government [emphasis in original].
“To invoke the court’s judicial power, a plaintiff must demonstrate an injury traceable to the defendant that a court can remedy,” the Chamber of Commerce and American Bankers Association brief stated. “A plaintiff can satisfy each of those elements without providing his legal name, and courts routinely allow plaintiffs to litigate pseudonymously where the plaintiff’s interest in privacy or the risk of retaliation outweighs the public’s interest in the details of the case. If an individual plaintiff can proceed anonymously without depriving the Court of subject matter jurisdiction, an association can surely demonstrate standing without providing the names of its members.”
If the courts require Speech First to identify the individual students it represents in order to challenge OSU’s allegedly unconstitutional policies in court, the Chamber of Commerce and American Bankers Association said that requirement “threatens to chill core First Amendment speech by exposing associations’ members—such as the businesses the Chamber represents—to government harassment or retaliation. Associations often sue on behalf of their members because those individuals or entities fear being targeted by the government if they raise their heads above the barricade. This fear may be especially pronounced when an association sues an agency with regulatory authority over its members.”
A joint brief from the Young America’s Foundation (YAF) and the Manhattan Institute noted that YAF has also “been subject to government demands that it turn over its membership lists” as a condition to file suit in federal court, but noted that it “successfully resisted those unconstitutional efforts.” However, YAF’s brief noted that “the similar arguments in this case show that state actors persist in seeking to identify those who reasonably prefer to remain anonymous.”
“The First Amendment protects the freedom to speak and associate anonymously,” the Young America’s Foundation and Manhattan Institute’s brief stated. “Forced disclosure of identity information must—at the very least—meet exacting scrutiny.”
The two organizations noted that anonymity has been a part of political debate since the founding of the United States. And they noted efforts to force the public disclosure of an organization’s members has a dark history.
“In the 1950s, the NAACP was successfully fighting institutionalized racial discrimination,” the Young America’s Foundation and Manhattan Institute’s brief stated. “State governments responded with a new weapon: compelled member disclosure. Hostile states began demanding that, as a condition for operating within their states, the NAACP had to turn over its supporters’ names. Government officials understood that many would stop supporting the NAACP if it meant risking reprisal from segregationists. They were right; because of compelled disclosure, the NAACP saw a 50% decline in southern-state memberships between 1955 and 1957.”
Ultimately, the U.S. Supreme Court sided with the NAACP in that dispute, ruling in 1958 in NAACP v. Alabama that the organization could keep its members’ identities secret.
“The Supreme Court has consistently held that the First Amendment protects the freedom to speak and associate anonymously,” the Young America’s Foundation and Manhattan Institute’s brief stated. “First Amendment rights need breathing space to survive. But the harassment, threats, and reprisals that accompany forced identity disclosure deter speakers from contributing to the marketplace of ideas.”
In another brief, the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of Oklahoma similarly wrote, “The Supreme Court has often considered claims brought by associations on behalf of anonymous or pseudonymous members, notwithstanding the government’s attempts to argue at earlier stages that the unnamed members could not suffice to establish the organization’s associational standing.”
The ACLU also noted that Tenth Circuit precedent “does not require an organization to name names to sufficiently allege associational standing,” citing two cases—Roe No. 2 v. Ogden, and American Humanist Association, Inc. v. Douglas County School District RE-1.
Another brief filed by the Independent Women’s Law Center noted that individuals who are “willing to speak out on controversial topics are regularly subject to harassment, vandalism, threats of violence, and actual physical assault.”
The group argued that if Speech First is required to disclose the names of its affected members at the outset of litigation it could “put those individual members at risk.”
OSU objected to any of the amicus curiae briefs being accepted, saying, “Eight (8) non-parties have moved to file amicus briefs totaling 101 pages of additional content. This is burdensome to OSU, but even more burdensome on the Court.”
OSU declared that the amicus curiae briefs “do not provide the court useful information,” and declared the briefs to be “redundant and repetitive” and “superfluous.”
OSU also objected, implicitly, to the widespread agreement among the varied groups, saying “their respective briefs merely repeat arguments SF (Speech First) raised in its Opening Brief …”
However, on June 15 the U.S. Court of Appeals for the Tenth Circuit provisionally granted the groups the right to submit briefs in the case.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.