Ingber et al v. New York University

Filing 66

ORDER granting 65 Letter Motion to Seal. Accordingly, the Court grants Plaintiffs' unopposed motion to file under seal the unredacted versions of the SAA Member #2 Declaration. The Court grants Plaintiffs' request to redact the portion s of the Ingber Declaration that contain information about the race, religion, ethnicity, nationality, or gender of the members of SAA. The Court denies Plaintiffs' request to redact the portions of the Ingber Declaration that contain informat ion about the numerosity of the membership of SAA. Plaintiffs shall submit to the Court and to counsel for Defendant a version of the Ingber Declaration with proposed redactions that comport with the parameters described in this order. Such proposed redactions shall be submitted no later than May 14, 2024. The Clerk of the Court shall close docket entry number 65. (Signed by Judge Loretta A. Preska on 5/7/2024) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BELLA INGBER, et al.,
Plaintiffs,

No. 23-CV-10023 (LAP)

-against-

ORDER

NEW YORK UNIVERSITY,
Defendant.

LORETTA A. PRESKA, Senior United States District Judge:
The Court is in receipt of Plaintiffs’ unopposed letter
motion,

(see

dkt.

no. 65),

seeking

to

file

under

seal

the

unredacted version of the Declaration of Bella Ingber (the “Inger
Declaration”), (see dkt. no. 62), and the anonymous declaration of
a

member

identified

of

Students

by

Plaintiffs

Declaration”

and,

Against
as

together

Antisemitism,

“Member
with

“Declarations”), (see dkt. no. 63).

the

#2”

(the

Ingber

Inc.
“SAA

(“SAA”),
Member

Declaration,

#2
the

Plaintiffs filed each of the

Declarations in support of their Memorandum of Law in Opposition
to Defendant’s motion to dismiss Plaintiff’s Amended Complaint.
(See dkt. no. 61 [“Pl. Opp. Br.”].)
Although the judicial documents for which Plaintiffs request
sealing carry a “strong presumption of [public] access,” sealing
is justified when a district court renders “specific, on-therecord findings that sealing is necessary to preserve higher
values” and the district court issues a sealing order “narrowly
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tailored to achieve that aim.” Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110, 121, 124 (2d Cir. 2006).
In fashioning such a sealing order, the court must balance
competing considerations against the presumption of public access
that applies to judicial documents.

See id. at 120.

One such

competing interest, or higher value, the court must consider is
the privacy interest of those who would be affected by disclosure.
See id.
Plaintiffs

seek

to

redact

identifying

Member #2 from the SAA Member #2 Declaration.

information

about

Although the Court

may rely upon it as a judicial document, “the public will be able
to read and fully understand” the SAA Member #2 Declaration “even
with [the] identifying information redacted.”
2023

WL

2609315,

plaintiff’s

at *1-2

request

information
“involve[d]

and

to

redact

proceed

highly

(S.D.N.Y.

Mar.

sensitive

pseudonymously

sensitive

and

Doe v. N.Y. Univ.,

22,

2023)

personal
because
personal

(granting

identifying
the

case

matters”).

Specifically, the SAA Member #2 Declaration provides sufficient
unredacted information about Member #2’s personal involvement in
SAA to support Plaintiffs’ assertion that SAA has associational
standing to sue.

(See SAA Member #2 Declaration ¶¶ 2, 7-11; Pl.

Opp. Br. at 35.)
The

SAA

Member

#2

Declaration

also

contains

unredacted

information about specific incidents of antisemitic harassment
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Member #2 asserts she experienced as a student in October and
November 2023, which incidents are undoubtedly “sensitive and
personal” in light of Member #2’s apparent fear of retaliation as
an “easily identifiable” “ethnic and religious Jew.”

See Doe,

2023 WL 2609315, at *2; (see also SAA Member #2 Declaration ¶¶ 35).

The

protection

of

such

sensitive

personal

identifying

information, including Member #2’s name, “legitimately counsel[s]
against disclosure of” the information Plaintiffs seek to redact.
See Doe, 2023 WL 2609315, at *2 (internal quotations and citations
omitted).
Plaintiffs have requested to redact only narrow portions of
the SAA Member #2 Declaration that contain personal identifying
information about Member #2.

Given the highly sensitive nature of

the personal identifying information as well as the content of the
remainder of the SAA Member #2 Declaration—which will provide the
public with sufficient information regarding Plaintiffs’ standing
arguments—the

Court

concludes

that

the

privacy

interests

of

Member #2 outweigh the public interest in the disclosure of the
redacted information.

Accordingly, the proposed redactions are

tailored narrowly enough to preserve Member #2’s privacy interests
without

jeopardizing

the

right

of

access

that

presumptively

applies to judicial documents.

The Court therefore grants the

motion

version

to

seal

Declaration.

the

unredacted

of

the

See Lugosch, 435 F.3d at 120, 124.
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SAA

Member

#2

The

request

to

redact

certain

portions

Declaration presents a different analysis.

of

the

Ingber

The portions of the

Ingber Declaration that the public could use to identify members
of SAA by their race, religion, ethnicity, nationality, or gender
is of the same sensitive and personal nature that the Court has
described above with respect to the information to be redacted in
the SAA Member #2 Declaration.
personal
Plaintiffs

information
have

and

proposed

The protection of such sensitive

the

narrowly

warrants

such

tailored
limited

redaction

redaction

of

racial, religious, ethnic, nationality, or gender information in
the Ingber Declaration.

See id.

However, the Court denies Plaintiffs’ request to redact the
portions of the Ingber Declaration that pertain to the numerosity
and

the

extent

of

membership

of

SAA.

There

exists

an

“[i]nviolability of privacy in group association” that may “in
many circumstances be indispensable to preservation of freedom of
association” that is protected by the First Amendment.

Nat’l

Assoc. for the Advancement of Colored People v. Ala. ex rel.
Patterson, 357 U.S. 449, 462 (1958).
Amendment

interest,

courts

have

“long

Because of this First
recognized

that

an

organization can assert associational privacy rights on behalf of
its members.”

Am. Civ. Liberties Union v. Clapper, 785 F.3d 787,

802 (2d Cir. 2015). The risk that compelled disclosure would chill
the expression of an organization’s members, who “would reasonably
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[be] prevent[ed] . . . from engaging in further speech and/or
association,” creates the constitutional basis for this privacy
right of organizations.

Citizens United v. Schneiderman, 882 F.3d

374, 381 (2d Cir. 2018).
On this basis, courts have held that the there is a qualified
privilege

against

“compelled

disclosure

of

an

association’s

members or sympathizers” and the “sources or uses of [its] funds,”
see Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 1985 WL
315, at *8 (S.D.N.Y. Feb. 28, 1985) (collecting cases), as well as
“the names of an organization’s members, the names of campaign
contributors, the names of producers of political leaflets, or the
names of persons who circulate petitions,” Church of Am. Knights
of the Ku Klux Klan v. Kerik, 356 F.3d 197, 209 (2d Cir. 2004).
However, Plaintiffs have not provided, nor has the Court
found, any legal support for the proposition that confidential
information

“protected

by

th[is]

associational

privilege”

of

anonymity includes information about the numerosity or extent of
the organization’s membership.

(See dkt. no. 65 at 3.)

It is not

apparent to the Court why public access to the number of members,
rather than to the identities or identifying information of the
members

themselves,

creates

association

the

with

that

of

expression

or

prohibits.

See Schneiderman, 882 F.3d at 381.

5

SAA

risk

the

chilling
First

further
Amendment

The associational

privilege of anonymity does not extend to protect against the
disclosure of the size of an organization’s membership.
Accordingly, the Court grants Plaintiffs’ unopposed motion to
file under seal the unredacted versions of the SAA Member #2
Declaration.

The Court grants Plaintiffs’ request to redact the

portions of the Ingber Declaration that contain information about
the race, religion, ethnicity, nationality, or gender of the
members of SAA.

The Court denies Plaintiffs’ request to redact

the portions of the Ingber Declaration that contain information
about the numerosity of the membership of SAA.
Plaintiffs shall submit to the Court and to counsel for
Defendant

a

version

of

the

Ingber

Declaration

with

proposed

redactions that comport with the parameters described in this
order.

Such proposed redactions shall be submitted no later than

May 14, 2024.
The Clerk of the Court shall close docket entry number 65.
SO ORDERED.
Dated:

May 7, 2024
New York, New York
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

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