Notice And Comment: Law Student Anonymity

And is uncertainty over Yale Law School's free-speech policy chilling legitimate protest?

(via Getty Images)

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

After last week’s Yale Federalist Society event with Kristen Waggoner of the Alliance Defending Freedom (“ADF”) went surprisingly smoothly, without a repeat of last year’s disruptive protest, I wondered why. One of my sources, a current Yale Law School student who was involved in last year’s protest, shed light on this topic, in a detailed and thoughtful email (reprinted with their permission, with links added by me for clarity):

The current narrative, including in your piece, is that the free exchange of ideas has returned to campus after the tragedy of last year's event. But I think it's surprising that no commentator is questioning why students chose to not even engage in a peaceful protest. There are a number of reasons this was the case (a desire not to have the media backlash of last year being a prominent one), but I posit that there are two significant reasons, both of which have serious repercussions for free speech.

The first was the change to the Rights and Duties of the Members of Yale Law School, specifically the establishment of “Substantially interfering with the conduct of classes” and “Substantially interfering with student-sponsored or student group-sponsored events or functions” as major offenses. There are those who would cheer this one as a response to last year, but I think there are serious concerns about what these actually mean.

Does a peaceful protest holding up signs constitute “substantial interference?” How about a silent walkout during the event? Yale Law School students, as you know, are very averse to anything that would impact their careers (a very valid criticism of last year’s protests, for instance, was that the students involved were confident they had nothing to lose). And so I believe that part of what led to not even a peaceful protest occurring was concern over what these rules mean.

This concern is valid. Not knowing whether a given form of protest will trigger discipline can have a chilling effect on permissible speech. Although I was critical of last March’s rowdy protest, I have no problem with non-disruptive forms of protest.

In my personal opinion, quietly holding up signs (as long as they don’t block anyone’s view) or silently walking out of an event (at the beginning) would be acceptable. But students deserve to know in advance whether YLS administrators agree with me. Perhaps there should be a process by which students can get advisory opinions on acceptable forms of protest.

Here is the student’s second point:

But by far the biggest concern, at least from my perspective, is the doxing of students. As you are probably aware, allegedly a member of the Federalist Society sent screenshots of three students’ Instagram feeds (two of which were private) to the Washington Free Beacon, which published those images. The Free Beacon reached out to at least one of the student’s employers, and the students faced significant online threats.

Similarly, an email sent to the Outlaws listserv was forwarded to the Free Beacon in relation to this most recent event, where the student’s email signature was published (except for their pronouns, which were cropped out, and which the Free Beacon continued to misgender—just seemed like an unnecessarily s*****y thing to do). Passing screenshots around has always been an issue, what with the Amy Chua-related messages being passed around.

As someone concerned about privacy, I find this abhorrent, but even more recently I have experienced firsthand the impact on free speech these shared screenshots have. I am a member of Outlaws but not publicly out to my family, and so much of how I interact in our Outlaws chat is framed in what conservative members of the group could potentially share and have a terrifying impact on my life. When members of FedSoc took a picture of the protests last year and the Free Beacon published those images, I was honestly concerned about what would happen if my family saw those images. And I know at least a couple of students who did not attend the event out of concern they could be potentially outed to their families.

Also a fair point. And I suspect that these two points, taken together, explain a lot of the difference between last year’s protest and this year’s lack of protest.

Should law students be able to protest anonymously? I view school as a period of experimentation and exploration, and one reason I have argued against holding college writings against judicial nominees is because of the chilling effect it would have. Students would be much less willing to experiment, explore, and write and say controversial things—all valuable parts of the educational process—if they felt that their words and deeds would come back to haunt them, years later.

When I was in charge at Above the Law, we had a policy of generally not naming law students involved in controversies; instead, we would come up with (often cute) pseudonyms for them (e.g., Johnny Applethief). We did this because we didn’t think it fair for a law-school controversy—often a pretty silly law-school controversy—to dominate a student’s so-called “Google footprint,” i.e., what comes up when the student is the subject of a Google search.

One of the reforms that Yale Law instituted in the wake of last year’s protest debacle was a ban on surreptitious recording. In announcing the ban, Dean Heather Gerken pointed out that it “mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.” And although the ban received criticism (from both the left and the right), one can see the logic of it. Students would be much less willing to participate in discussion, especially to voice a controversial opinion or to play “devil’s advocate,” if an out-of-context snippet of their remarks could make its way to Twitter or TikTok.

So that’s the pro-anonymity case. There’s a case to be made against anonymity, which Professor Nancy Rapoport makes in this blog post (discussing a situation in which anonymous law students filed complaints against a professor—complaints a university investigation concluded were unfounded):

[T]hese are law students who are making these allegations about this law professor. In a few years, they will be lawyers. As lawyers, they will have to sign their names to their pleadings, their drafts of contracts, and any other work product that they do. They will appear in public on behalf of others, and they will have to announce their names as they represent their clients. They will be bound by ethics rules that include the obligations to be truthful to the court and to others, and to avoid making unmeritorious claims….

How do we get people who are afraid to associate their names with their allegations to develop into lawyers who may be asked to argue in favor of controversial topics or to represent controversial people?

….

So should we train law students that they should go on the record with their names when they have complaints about the law school in order to train them for the professional jobs that they will have? I think that we should.

The three anonymous students in today’s article may sincerely fear retaliation. Law students in general now are more fearful, more anxious, and more depressed that I’ve seen in prior generations of law students, and I worry about them and their ability to thrive in a world that is nowhere near gentle. If they can’t speak up as themselves now, while they are students at a school that is trying hard to protect them from discrimination, will they be able to do their jobs as lawyers later?

Professor Rapoport is discussing a situation involving law students filing complaints with the administration about a professor. What about when students file a lawsuit?

This issue arose in the case originally known as Doe v. Gerken, filed by two then-anonymous Yale Law students against YLS, Dean Heather Gerken, associate dean Ellen Cosgrove, and diversity director Yaseen Eldik. The lawsuit is now known as Stubbs v. Gerken, since the plaintiffs’ motion to proceed under pseudonyms was denied. Judge Sarah Merriam—then of the District of Connecticut, now of the Second Circuit—wrote as follows in her ruling:

Pursuant to Rule 10 of the Federal Rules of Civil Procedure "[t]he title of the complaint must name all the parties[.]" "This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." … "Identifying parties in a proceeding is an important dimension of publicness, as people have a right to know who is using their courts." …

This result was predicted by most observers (including Professor Eugene Volokh, an expert on pseudonymous litigation). The strong default rule is that legal proceedings are public—which is why some judges are starting to push back on parties’ requests to seal records that don’t meet the (high) standard for sealing.

I’m not sure what I think about law student anonymity; I see good arguments on both sides. So I’ve made it the subject of this Notice and Comment (“N&C”) post, in which I encourage readers to opine in the comments section. I see at least three separate issues to discuss:

1. Should law students be able to protest anonymously—or at least without having their names showing up in news articles?

2. Should law students be able to file internal complaints with the administration, whether against professors or fellow students, anonymously?

3. Should law students be able to file lawsuits, whether against their schools or professors or fellow students, anonymously?

Please share your views in the comments to this post. If you prefer, you can also email me; if you do, I will treat your comments as okay to post in the comments on your behalf, keeping you anonymous, unless you explicitly designate them as completely off the record and for my eyes only.

As usual for N&C posts, comments are open to all readers, not just paid subscribers. Thanks!

---

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.