Amicus Brief: Do No Harm v. Pfizer, Inc.

Do No Harm, an organization of medical professionals and students that aims to protect healthcare from identity politics, sued the pharmaceutical company Pfizer for civil rights violations relating to Pfizer’s use of racial preferences in its fellowship program. Fearing “reprisal from other students,” “professors,” and “future employers,” the plaintiff members of Do No Harm attempted to remain anonymous in their filing. The Second Circuit held that the students had to disclose their legal names to establish standing. The Manhattan Institute, in partnership with Young America’s Foundation and Southeastern Legal Foundation, filed an amicus brief in support of Do No Harm’s petition for a rehearing en banc (of the whole court).

Our brief presents empirical data showing that college students of many different backgrounds feel unable to express their views and that a majority of students believe the campus climate chills speech because some might think such speech “offensive.” The brief emphasizes that students were disproportionately likely to refrain from discussing “controversial topics,” such as “race, religion, and sexual orientation.” Given this background, it’s unsurprising that members of Do No Harm wish to conceal their identities. And, as our brief argues, the right to anonymity is a cornerstone of our free speech culture and legal framework. Many of the Founding Fathers and other Revolutionary pamphleteers, including Thomas Paine, Alexander Hamilton, James Madison, and John Jay, published under pseudonyms to avoid reprisals. Furthermore, anonymity as members of groups also has deep historical roots: anonymous assembly and secret societies, including the “nocturnal meetings of individuals,” were understood by the Founding-era Congress to be protected by the First Amendment.

The Supreme Court has, time and again, upheld these protections. In McIntyre v. Ohio Elections Commission (1995), it held that “an author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment,” especially those fearing reprisal or retaliation for unpopular views. Disclosure of the names of associational members “may constitute as effective a restraint on freedom of association” as more explicit government action. Such disclosure, lifting the veil of anonymity in the context of determining standing, provides no additional information to the court. The Second Circuit panel did not give a reason, nor articulate an interest that would be served, by forcing the disclosure. Its blanket rule against anonymous standing undermines the purpose of the First Amendment.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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