Do No Harm v. Pfizer

SLF Supports Right to Speak Anonymously

About the Case

Southeastern Legal Foundation (SLF) filed an amicus curiae brief with the Second Circuit Court of Appeals supporting a challenge brought by Do No Harm against Pfizer over a race-based fellowship program. In the brief, SLF joined a coalition of amici represented by  Alliance Defending Freedom (ADF), including Manhattan Institute (MI) and Young America’s Foundation (YAF), and urged the Second Circuit to hold that membership organizations like Do No Harm cannot be required to name their members before proceeding with a lawsuit. A holding to the contrary would run afoul of long-standing First Amendment precedent.

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Do No Harm—whose members include physicians, healthcare professionals, medical students, patients, and policymakers—is challenging as unconstitutional Pfizer’s fellowship program, which offers college students and young professionals internship and employment opportunities if they are “Black/African American, Latino/Hispanic [or] Native American.” The fellowship is designed “to increase minority representation at Pfizer” and diversify its pipeline of leaders.

Do No Harm submitted anonymous declarations on behalf of two undergraduate members who applied for the fellowship and were denied. They met all of the criteria except race; one was white and one was Asian-American. The members did not wish to be identified because they feared retaliation and backlash for bringing the lawsuit. The executive director of Do No Harm also submitted a declaration in her own name affirming that the members were ready and able to participate in the fellowship program.

The district court dismissed the lawsuit, holding that Do No Harm needed to identify its members by name before it could proceed further. A panel of judges on the Second Circuit Court of Appeals upheld that decision. Do No Harm is now petitioning the entire Second Circuit to rehear the case en banc.

In support of Do No Harm, SLF and amici are urging the Second Circuit to reverse the panel’s decision. Self-censorship is at an all-time high on campus, and college students like Do No Harm’s members are forced to live in constant fear of speaking out on controversial issues. The Supreme Court has historically upheld the right to speak and associate anonymously under the First Amendment. If the Second Circuit rejects Do No Harm’s petition and allows the current holding to stand, it will have a devastating impact on anonymous speech, membership standing, and free speech on campus.

Case Status

Amicus Brief

Court

Second Circuit Court of Appeals

Why This Matters

Prohibiting Do No Harm’s members from filing a lawsuit anonymously will not only chill their speech, but also chill future lawsuits challenging illegal and unconstitutional discrimination.

Do No Harm’s members were already injured when Pfizer denied them access to its fellowship program solely because of their skin color. The plaintiffs fear further harm if they proceed under their own names.

Rather than protect these individuals from the government’s abuse of power, the students here face an impossible choice: proceed as named individuals and risk reputational harm and consequences or have their case dismissed altogether.

Such a holding would undo decades of precedent and have lasting consequences.

Membership associations, like the NAACP and Students for Fair Admissions, have filed lawsuits on behalf of anonymous members in major Supreme Court cases for decades. The Supreme Court has never so much as questioned proceeding anonymously as part of an association.

SLF Executive Director Kimberly Hermann states,

If the court’s decision here stands, college students will especially be impacted given the current climate on campus. With self-censorship already at an all-time high, students now will have less recourse to hold their colleges accountable. If they want to challenge First Amendment violations, they will have to proceed by name and risk damage to their reputation and even future careers.

Why This Matters

Prohibiting Do No Harm’s members from filing a lawsuit anonymously will not only chill their speech, but also chill future lawsuits challenging illegal and unconstitutional discrimination.

Do No Harm’s members were already injured when Pfizer denied them access to its fellowship program solely because of their skin color. The plaintiffs fear further harm if they proceed under their own names.

Rather than protect these individuals from the government’s abuse of power, the students here face an impossible choice: proceed as named individuals and risk reputational harm and consequences or have their case dismissed altogether.

Such a holding would undo decades of precedent and have lasting consequences.

Membership associations, like the NAACP and Students for Fair Admissions, have filed lawsuits on behalf of anonymous members in major Supreme Court cases for decades. The Supreme Court has never so much as questioned proceeding anonymously as part of an association.

SLF Executive Director Kimberly Hermann states,

If the court’s decision here stands, college students will especially be impacted given the current climate on campus. With self-censorship already at an all-time high, students now will have less recourse to hold their colleges accountable. If they want to challenge First Amendment violations, they will have to proceed by name and risk damage to their reputation and even future careers.

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