•  
  •  
 

Mitchell Brost

First Page

195

Last Page

238

Document Type

Comment

Abstract

Associational standing serves several benefits for plaintiff members: associations often have expertise in a certain field that guides the representation of their members, they have greater resources that allow them to bring lawsuits in the first place, and they can serve as the public face of the lawsuit to shield the plaintiff member from serious retaliation that may result from bringing the claim. But due to some imprecise language in Justice Scalia’s majority opinion in Summers v. Earth Island Institute, circuit courts are divided over whether associational members can remain anonymous at all. Thus, individuals who have legitimate legal claims, lack the resources necessary to sue without the association, and are in danger of retaliation or even harm if they cannot sue anonymously may refrain from having their day in court if their jurisdiction imposes a naming requirement on associational plaintiffs. This Comment argues that the associational standing test should clarify that only an identification requirement is necessary, thereby closing the circuit split and offering vulnerable associational members the protection they need to confidently seek recompense in the courts. An analysis of Justice Scalia’s Summers majority under typical interpretive tools reveals that he likely did not mean distinct things by switching between the verbs “name” and “identify” because the facts before him did not require such a distinction. Courts should further disfavor the interpretation that Summers imposes a naming requirement because such a reading treats Justice Scalia’s majority as if it contains the same linguistic precision as statutes—an unrealistic and impermissible expectation for a judicial opinion. Finally, fact that the Supreme Court has recognized that the First Amendment protects one’s right to keep one’s associations private undercuts the argument in favor of a naming requirement. This Comment’s proposed identification requirement will not leave defendants unprotected. The standard for an associational member to remain anonymous should echo the strict standards that lower courts have developed for allowing individual plaintiffs to sue anonymously. Accordingly, associational members will have to demonstrate the likelihood of some serious harm—beyond mere economic harm or embarrassment—that would result in the absence of anonymity. This requires sufficient facts to demonstrate that the anonymous member truly does exist and did suffer harm. At bottom, associations must provide everything except their members’ names and detailed identities. A multitude of public policy benefits flow from a clear identification requirement. Not only would it facilitate circuit-wide uniformity, but it would also incentivize vulnerable plaintiffs who need the protection of anonymity to bring their claims to court. This benefit is easily recognizable in cases involving victims of sexual violence, but courts should consider how it can similarly protect plaintiffs bringing First Amendment claims, given this nation’s history of permitting anonymous speech, the pervasiveness of online speech, and the rising political tensions in this country. Finally, setting forth a clear identification requirement will concretize an important rule in the body of standing doctrine, thereby reducing the danger that a judge may use indeterminate standing rules to keep disfavored plaintiffs out of the courtroom. Thus, the Constitution, Supreme Court precedent, and policy considerations all favor a clarification that associational standing requires only that associations identify the existence of their injured members.

Download

Share

COinS