Witness identities in First Amendment case over pro-Palestine demonstrations must be revealed, judge rules

PHOENIX (CN) — A federal judge ordered Arizona State University to reveal the names of students who complained of anti-semitism relating to pro-Palestine demonstrations on campus so that they can be called as witnesses in a pending First Amendment lawsuit.

Despite objections that disclosure may subject those students to retaliation or discourage others from reporting their own concerns over campus safety, U.S. District Judge John J Tuchi agreed with a coalition of students suing the university for First Amendment retaliation that any student who complained via email to the university of anti-semitism following an April 26, 2024, protest at which at least 70 student-protesters were arrested may be a material fact witness to the protest itself.

Those students’ identities revealed to the plaintiffs will be made public only if they are listed as trial witnesses.

Tuchi denied the plaintiffs’ request for the identities of any students who made complaints before the April 2024 protest.

“Those complaints might still be relevant though to the state of mind of the defendant because of the effect they might have had,” Tuchi ruled from the bench Wednesday afternoon. “But the identity of the complainants in that circumstance are not relevant. Only the substance of the complaint, and what effect it would have had on the defendant and what he did with it.”

Sixteen ASU students say university president Michael Crow retaliated against their First Amendment exercise of free speech when he unilaterally suspended them following their on-campus arrests.

Crow rejects the notion that their speech, which opposed the United States’ military aid to Israel, had anything to do with why they were suspended. Instead, Crow said the university simply enforced its anti-camping policy against the students, some of whom had pitched tents and who the university claims intended to stay the night.

One plaintiff was arrested at 8:30 a.m., 15 hours before the anti-camping policy would have taken effect.

In a Phoenix courtroom, university attorney Austin Yost said any student emails to faculty and staff expressing concerns over anti-semitism and campus safety are entirely irrelevant to the case.

“His motivations were not based on complaints he was receiving from students,” Yost said of Crow’s decision to suspend the students. “They were based on his observations and the observations of other faculty on campus.”

Those complaints were immaterial to Crow’s decision to enforce the anti-camping policy, Yost said. For that reason, Yost added the veracity of the complaints contained in the disclosed emails is equally immaterial to Crow’s motivations.

Tuchi, a Barack Obama appointee, also denied the plaintiffs’ motion to reveal a personal, non-public facing email address of Michael Crow used in some email chains produced during discovery.

Because Crow personally oversees the non-public email while communications staff largely oversee his public accounts, the plaintiffs argued that knowing which address a message was sent to or from is probative of whether Crow actually read or wrote a given message.

Because the only redactions made in the disclosed documents are to block out one specific email address and not the contents of the emails, Tuchi denied the plaintiffs’ request.

“With the representation, and the fact that all the other information has been disclosed, and can be used to formulate plaintiffs’ case in chief, the exact name of the email account is in fact irrelevant for purposes of this case in discovery,” Tuchi said. “It could be ‘steelersarenumberone’ or ‘ihatecarrottop’ and it would not matter in any way.”

The Arizona Board of Regents, the governing board of the state’s public universities and a defendant in the lawsuit, requested Tuchi order the plaintiffs to comply with a discovery request for all social media activity in the last three years relating to pro-Palestine protests, their arrests, disciplinary action and their lawsuit. Yost argued their internet activity might reveal their intentions and measure their credibility.

Plaintiffs’ attorney Michael Yancy argued that would violate their First Amendment associational privilege.

“This is a retaliation case about why the defendant acted the way he did,” Yancy said. “That does not open plaintiffs up to an excavation of their politics.”

Yost added that if their online activity shows they’ve participated in protests before, it would demonstrate their prior knowledge of ASU’s policies. Again, Yancy said prior knowledge is irrelevant to whether Crow engaged in viewpoint discrimination.

Finally, the Board of Regents requested the plaintiffs produce records from mental health professionals, because they claim they have suffered and continue to suffer severe emotional distress and anxiety.

“By alleging emotional damages, these plaintiffs have placed their mental health at issue,” Yost said. “Severe emotional distress is not regular emotional distress, and anxiety is a diagnosis.”

Yancy argued that the plaintiffs’ claims still fall under the legal definition of “garden variety” emotional distress, and requiring them to produce two years of medical records would be overly invasive.

Tuchi said he will need more time to rule on the final two issues.

Follow @JournalistJoeAZ