UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
23-15
Docket Number(s): ________________________________________ _______________ Caption [use short title]
Motion for: ______________________________________________
Set forth below precise,complete statement of relief sought:
leavetofileabriefasamicicuriaeinsupport ofrehearingenbanc AmiciCuriaeYoungAmerica'sFoundation,Manhattan Institute,andSoutheasternLegalFoundationrequest thatthiscourtgranttheirmotionforleavetofilethe accompanyingamicicuriaebriefinsupportofrehearing enbanc.
MOVING PARTY:_______________________________________ OPPOSING PARTY:____________________________________________
Plaintiff ___Defendant ___Appellant/Petitioner ___Appellee/Respondent
MOVING ATTORNEY:___________________________________OPPOSING ATTORNEY:________________________________________
[name of attorney, with firm, address, phone number and e-mail]
AllianceDefendingFreedom 44180RiversideParkwayLansdowne,VA20176 571-707-4655;mhoffmann@ADFlegal.org
Paul,Weiss,Rifkind,Wharton&GarrisonLLP 2001KSt.NWWashington,DC20006
202-226-7341;mgoodmann@paulweiss.com
Court-Judge/ Agency appealed from: _________________________________________________________________________________________
Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYSAND INJUCTIONS PENDING APPEAL:
Has movant notified opposing counsel (required by Local Rule 27.1): ___Yes ___No (explain):__________________________
Opposing counsel’s position on motion: ___Unopposed ___Opposed ___Don’t Know Does opposing counsel intend to file a response: ___Yes ___No ___Don’t Know
Has this request for relief been made below? ___Yes ___No Has this relief been previously sought in this court? ___Yes ___No Requested return date and explanation of emergency: ________________
Is oral argument on motion requested? ___Yes ___No (requests for oral argument will not necessarily be granted)
Has argument date of appeal been set? ___Yes ___NoIf yes, enter date:______________________________________________
Signature of Moving Attorney:
/s/MathewW.Hoffmann
S.D.N.Y.-JudgeJenniferL.Rochon March27,2024
Date:__________________ Service by: ___CM/ECF ___Other [Attach proof of service]
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
DO NO HARM, Plaintiff-Appellant v. PFIZER INC., Defendant-Appellee. ____________________
Appeal from the United States District Court for the Southern District of New York Case No. 1:22-cv-7908 ____________________
MOTION OF YOUNG AMERICA’S FOUNDATION, MANHATTAN INSTITUTE, AND SOUTHEASTERN LEGAL FOUNDATION FOR LEAVE TO FILE A BRIEF AS AMICI CURIAE IN SUPPORT OF REHEARING EN BANC
Ilya Shapiro MANHATTAN INSTITUTE 52 Vanderbilt Ave.
New York, NY 10017 (212) 599-7000 ishapiro@manhattan.institute
John J. Bursch Tyson C. Langhofer Mathew W. Hoffmann
ALLIANCE DEFENDING FREEDOM 44180 Riverside Parkway Lansdowne, VA 20176
Telephone: (571) 707-4655 mhoffmann@adflegal.org
Counsel for Amici Curiae
CORPORATE DISCLOSURE STATEMENT
Under Federal Rule of Appellate Procedure 26.1, Amici Curiae Young America’s Foundation, Manhattan Institute, and Southeastern Legal Foundation state that they have no parent corporation and that they do not issue stock.
Pursuant to Federal Rule of Appellate Procedure 29(b), Young America’s Foundation (YAF), Manhattan Institute (MI), and Southeastern Legal Foundation (SLF) respectfully move this Court for leave to file the accompanying amici curiae brief in the above-captioned matter in support of rehearing en banc. All parties consented to the filing of the attached brief.
Identification of Amici Curiae
Young America’s Foundation is a national nonprofit organization that ensures young Americans understand and are inspired by the ideas of individual freedom, a strong national defense, free enterprise, and traditional values. YAF is a strictly nonpartisan organization dedicated to the ideas and principles of the American founding, providing an abiding, faithful guide for young Americans here in the 21st century and beyond. Young Americans for Freedom is YAF’s chapter affiliate on high school and college campuses across the country. YAF engages with students, parents, and teachers and is a robust advocate for protecting First Amendment freedoms.
The Manhattan Institute is a nonprofit public policy research foundation whose mission is to develop and disseminate new ideas that foster economic choice and individual responsibility. To that end, MI has historically sponsored scholarship supporting the rule of law and opposing government overreach, including in the marketplace of ideas.
Its scholars regularly speak on college and graduate-school campuses. MI also runs the Adam Smith Society, which brings together businessschool students and alumni for discussion and debate on how the free market has contributed to human flourishing and opportunity for all.
Southeastern Legal Foundation is a national, nonprofit legal organization dedicated to defending liberty and Rebuilding the American Republic. For nearly 50 years, SLF has advocated, both in and out of the courtroom, to protect our First Amendment rights. This aspect of its advocacy is reflected in its regular support of those challenging overreaching governmental actions in violation of their freedom of speech. Through its 1A Project, SLF educates college students and administrators about the First Amendment and defends the right to engage in open inquiry on our nation’s college campuses. SLF has an abiding interest in the preservation of the college campus as the traditional marketplace of ideas.
Interest of Amici Curiae
Amici do not in the proposed accompanying brief take any position on the underlying merits of Do No Harm’s claims in this case. But amici are deeply concerned about the panel’s ruling regarding Do No Harm’s lack of associational standing. That ruling has the potential to stop nu-
merous lawsuits seeking to vindicate constitutional rights where an organization’s members require anonymity due to hostility and fear of retaliation by public officials and other students.
To fulfill its mission, YAF engages in dialogue on a variety of issues and hosts prominent conservative speakers on campuses nationwide. Often, these speakers meet resistance from students, faculty, and administrators. Rather than engage with and debate YAF’s views and speakers, those who disagree commonly turn to name-calling, falsely claiming that YAF promotes “hate speech,” “offensive” speech, and “controversial” ideas. Incited by these falsities, students and professors have vandalized YAF’s posters, administrators have imposed viewpointbased security fees, and universities have sought to cancel its events. MI’s scholars likewise speak regularly on college and graduate-school campuses, facing protest, shutdown, and cancelation. And SLF represents college students across the country who have suffered official sanction for protected speech that some find “offensive” or unpopular.
Amici believe that robust debate on all sides of issues advances our representative democracy. But it is impossible to have such debate when one side labels everything the other side says as “offensive,” then uses that pejorative to shut down dialogue altogether, deterring those who disagree from expressing their true views.
Free speech—not censorship—promotes true understanding and allows us to remain faithful to the individual liberties that make our country great. Amici understand the importance of the First Amendment’s anonymity protections. YAF, like Plaintiff Do No Harm in this case, has been subject to government demands that it turn over its membership lists as a condition to filing suit in federal court. E.g., Young Am.’s Found. v. Gates, 560 F. Supp. 2d 39, 49 (D.D.C. 2008), aff’d 573 F.3d 797 (D.C. Cir. 2009). YAF successfully resisted those unconstitutional efforts, see id., but the parallel arguments here show that state actors persist in seeking to identify those who reasonably prefer to remain anonymous in litigation. MI too has been pressured to reveal its donors. Given the hostility amici and SLF’s clients have faced, the desire of their members and affiliates—and those with similar views—for anonymity is understandable.
Regrettably, in today’s cancel culture, state actors and others are all too quick to clamp down on speech with which they disagree. Amici seek to defend our Constitution’s protection for people to speak their deeply held beliefs into the marketplace of ideas—no matter if some view certain ideas as controversial. To that end, YAF has litigated—often with the help of its current counsel, Alliance Defending Freedom (ADF)—numerous cases to vindicate those rights. E.g., Young Am.’s Found. v. Kaler, 482 F. Supp. 3d 829, 856–66 (D. Minn. 2020), vacated,
14 F.4th 879 (8th Cir. 2021); Young Am.’s Found. v. Gates, 573 F.3d 797 (D.C. Cir. 2009); Young Am.’s Found. v. Stenger, No. 3:20-cv-0822, 2021 WL 3738005 (N.D.N.Y. Aug. 24, 2021); Univ. at Buffalo Young Ams. for Freedom v. Univ. at Buffalo Student Ass’n, No. 1:23-cv-00480 (W.D.N.Y. filed June 1, 2023).
Amici’s participation in other, related cases shows the depth of their substantial interest. For example, YAF and MI recently filed a similar amici brief on the issue of anonymity and associational standing, and the Tenth Circuit upheld the plaintiff-association’s privacy. Speech First, Inc. v. Shrum, 92 F.4th 947 (10th Cir. 2024). YAF, MI, and SLF have filed amicus briefs on First Amendment issues in many other cases, including cases addressing speech protections on college campuses and associational privacy.1 Their interest in the important First
1 E.g., Br. of Young America’s Foundation as Amicus Curiae, Keister v. Bell, No. 22-388 (U.S. Nov. 23, 2022), 2022 WL 17340276; Br. of Young America’s Foundation et al. as Amici Curiae, Uzuegbunam v. Preczewski, No. 19-968 (U.S. Sept. 29, 2020), 2020 WL 5946372; Br. of Young America’s Foundation et al. as Amici Curiae, Ams. for Prosperity Found. v. Bonta, Nos. 19-251, 19-255 (U.S. Mar. 1, 2021), 2021 WL 826688; Br. of Manhattan Institute et al. as Amici Curiae, Moms for Liberty – Brevard Cnty., FL v. Brevard Pub. Schs., No. 23-10656 (11th Cir. Apr. 17, 2023); Br. of Manhattan Institute et al. as Amici Curiae, Henderson v. Sch. Dist. of Springfield R12, Nos. 23-1374 & 23-1880 (8th Cir. May 17, 2023); Br. of Southeastern Legal Found. et al. as Amici Curiae, Ams. for Prosperity Found. v. Bonta, Nos. 19-251, 19-255 (U.S. Feb. 24, 2021).
Amendment questions presented here is real and substantial, deserving of the Court’s leave to file an amici curiae brief.
Desirability and Relevance of Amici Curiae’s Brief
“Since an amicus does not represent the parties but participates only for the benefit of the court, it is solely within the discretion of the court to determine the fact, extent, and manner of [its] participation.”
Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 808 (3d Cir. 1991) (cleaned up). But “Rule 29’s criteria [are] broadly interpreted.” Neonatology Assocs., P.A. v. Comm’r, 293 F.3d 128, 133 (3d Cir. 2002) (Alito, J.). “[M]ost courts of appeals freely grant leave to file.” Id. That is because courts are “usually delighted to hear additional arguments from able amici that will help the court toward right answers.” Mass. Food Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197 F.3d 560, 567 (1st Cir. 1999). This is particularly true when amici provide “information on matters of law about which there [is] doubt, especially in matters of public interest.” United States v. Michigan, 940 F.2d 143, 164 (6th Cir. 1991).
YAF, MI, and SLF are able and experienced amici, well-suited to help this Court toward right answers in a case touching on sensitive First Amendment freedoms. Amici have on-the-ground experience with censorship. YAF’s national footprint means it routinely encounters
roadblocks to speech some label controversial. And MI and SLF advocate for free speech on campuses coast-to-coast. They will provide the Court with information about the climate of self-censorship on campus today, and how anonymity can help restore the marketplace of ideas on and off campus.
What’s more, amici’s counsel, ADF, regularly litigates cases that involve the proper interpretation of the First Amendment. In fact, ADF represented petitioner Thomas More Law Center in the Supreme Court’s most recent case protecting anonymous association. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2378 (2021). Many of ADF’s other cases involve the First Amendment’s application to college campuses. E.g., Uzuegbunam v. Preczewski, 781 F. App’x 824 (11th Cir. 2019) (per curiam), rev’d 592 U.S. 279 (2021); Perlot v. Green, 609 F. Supp. 3d 1106 (D. Idaho 2022). Thus, ADF possesses legal expertise that would be of particular benefit to this Court in a case involving First Amendment freedoms that touch upon the public interest.
YAF, MI, SLF, and ADF will use their respective expertise to demonstrate to this Court that the panel’s opinion contravenes the First Amendment’s original meaning. In so ruling, the panel made two key errors. First, it ignored how the First Amendment’s original meaning reveals that its core protection extends to anonymous speech and associ-
ation. Second, without any First Amendment scrutiny, the panel imposed a categorical bar on the doors to federal court unless organizations disclose their members.
Under the proper First Amendment framework, the panel’s decision cannot stand. Neither the panel nor Defendant Pfizer identified any reason—let alone a sufficiently important interest—to force disclosure of an association’s nonparty members to show standing. And the panel’s categorical rule requiring disclosure to prevent dismissal cannot satisfy any form of narrow tailoring. Any needed identity information could be revealed—subject to common confidentiality protections—in discovery if necessary.
Conclusion
Amici’s strong interest in this case, their expertise in living out the First Amendment in the educational context, and their concise explanation of the flaws in the panel’s analysis justify their filing of a brief regarding mandatory disclosure of an organization’s members. YAF, MI, and SLF respectfully request that this Court grant their motion under Federal Rule of Appellate Procedure 29(b).
Respectfully submitted this 27th day of March, 2024.
/s/Mathew W. Hoffmann
Ilya Shapiro
MANHATTAN INSTITUTE
52 Vanderbilt Ave. New York, NY 10017 (212) 599-7000 ishapiro@manhattan.institute
John J. Bursch
Tyson C. Langhofer
Mathew W. Hoffmann
ALLIANCE DEFENDING FREEDOM 44180 Riverside Parkway Lansdowne, VA 20176 Telephone: (571) 707-4655 mhoffmann@adflegal.org
Counsel for Amici Curiae
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(g), the undersigned certifies that this motion complies with the type-volume limitations of Federal Rule of Appellate Procedure 27(d)(2)(A). Exclusive of the sections exempted by Federal Rule of Appellate Procedure 32(f), the motion contains 1,712 words, according to the word count feature of the software (Microsoft Word 365) used to prepare the motion. The motion has been prepared in proportionately spaced typeface using Century Schoolbook 14 point.
/s/ Mathew W. Hoffmann Mathew W. Hoffmann Counsel for Amici CuriaeCERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was filed electronically with the Court’s CM-ECF system on this 27th day of March, 2024. Service will be effectuated by the Court’s electronic notification system upon all parties and counsel of record.
/s/ Mathew W. Hoffmann Mathew W. Hoffmann Counsel for Amici Curiae