In the recent Tenth Circuit decision in Speech First, Inc. v. Shrum, authored by Judge Harris Hartz and joined by Judges Nancy Moritz and Veronica Rossman, the court addressed the issue of standing in a lawsuit brought by Speech First, Inc., a nationwide organization dedicated to protecting free speech on college and university campuses. The organization filed suit against Oklahoma State University (OSU) and its president, Kayse Shrum, for implementing three policies that allegedly restricted protected speech. The suit was brought on behalf of Speech First’s student members at OSU, who submitted pseudonymous declarations (using the names Student A, Student B, and Student C) detailing how the policies hindered their constitutionally protected expression. The sole issue on appeal was whether the use of pseudonyms by the declarants prevented Speech First from establishing standing to bring the suit.
The district court, at the request of President Shrum, dismissed the suit for lack of standing, citing the Supreme Court’s decision in Summers v. Earth Island Institute (2009), which held that for an organization to have standing, it must identify at least one member by name who would have standing to personally bring the claim. However, the Tenth Circuit disagreed with the district court’s ruling, citing longstanding and well-established doctrine in the federal courts that allows anonymous individuals to have standing to bring claims. The court noted that anonymity was not even an issue in the Summers case and that the Court’s opinion did not indicate any intention to overturn decades of precedent.
The court went on to explain that an organization like Speech First can have standing to bring suit on behalf of its members if three elements are satisfied: (1) at least one member would have standing to sue in their own right, (2) the organization’s interest is relevant to its purpose, and (3) the claim and relief sought do not require the member to participate in the lawsuit. The court noted that President Shrum did not dispute the second and third elements and that the only issue on appeal was whether the first element could be satisfied when the organization’s members were not identified by name.
The court answered this question in the affirmative, citing a long tradition in the federal courts of plaintiffs bringing suit under an alias. The court also noted that although the Supreme Court’s decision in Roe v. Wade (1973) has been overruled in other respects, it still holds precedential value on the issue of standing. In that case, the Court accepted the existence of the plaintiff, despite the use of a pseudonym, and the court in Speech First v. Shrum followed this precedent.
In conclusion, the Tenth Circuit held that Speech First had standing to bring the suit on behalf of its members, as the three elements for standing were satisfied. The court emphasized the long-standing tradition of allowing plaintiffs to bring suit under an alias and noted that the use of pseudonyms did not preclude the organization from establishing standing.
