Group Fights 2nd Circuit's Name Names Ruling

WASHINGTON - March 31, 2024 - PRLog -- Group Fights 2nd Circuit's Name Names Ruling
But They Exaggerate Harm and Overlook Obvious Remedies

WASHINGTON, D.C. (March 31, 2024) -  Do No Harm has filed an en banc petition with the U.S. Court of Appeals for the 2nd Circuit asking the entire court to overrule the circuit court's earlier determination which it said requires students and others seeking to challenge various allegedly illegal corporate diversity initiatives to list their names rather than to proceed anonymously as they had hoped.

The organization claims that the new rule will deter organizations from bringing lawsuits on behalf of individuals who may wish to remain anonymous for fear of retaliation.

But, as standing expert and public interest law professor John Banzhaf pointed out in
NATIONAL LAW JOURNAL - What's in a Name?
Group Urges Full 2nd Circuit to Scrap Rule Against Pseudonymity (https://www.law.com/nationallawjournal/2024/03/29/whats-i...):

those concerns are overblown because several procedures are available for courts to protect members' identities from being disclosed publicly, such as 'in camera" review or filing names under seal.

But notes Banzhaf, the court was clear that the names of plaintiffs challenging such policies would not have to be publicly disclosed in all such situations, saying clearly in the official summary that:

"SUMMARY: an association that relies on injuries to individual members to establish its standing must name at least one injured member. This does not prevent the association from seeking to protect the identities of its named members from public disclosure using existing legal frameworks." [emphasis added]

Thus, concludes Banzhaf, the 2nd Circuit ruling clearly does not shut the door on keeping the names of plaintiffs from being disclosed publicly.

Rather, in accordance with many cases (Roe v. Wade (https://www.oyez.org/cases/1971/70-18) is perhaps the best known) permitting plaintiffs to proceed completely anonymously (some of which are summarized here (https://reason.com/volokh/)), or to disclose their names only to the judge (in camera review), plaintiffs can be protected from reprisals.

The following quotations from the National Review help explain Prof Banzhaf's position and background in this area:

"I think it is a great overreaction," said George Washington University law professor John Banzhaf.  In some cases, it may be a little bit difficult to find somebody and then to find somebody ready, willing and able to stand up and have their name on it," he added. "But courts can simply allow the names to be filed in camera, they can have [the names] sealed. There are lots of ways in which [names] can be protected, where you make some reasonable showing."

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