1 Michael Newdow, pro hac vice 

2 PO Box 233345 

3 Sacramento, CA 95823 

4 (916) 427-6669 

5 

6 Rosanna Fox, NH SBN: 17693 

7 O’Brien Law Firm P.C. 

8 One Sundial Avenue, Fifth Floor 

9 Manchester, NH 03103 

10 (603) 627-3800 

11 

12 

13 IN THE UNITED STATES DISTRICT COURT 

14 FOR THE DISTRICT OF NEW HAMPSHIRE 

15 

16 Civil Action No. 1:07-cv-356-JM 

17 

18 

19 THE FREEDOM FROM RELIGION FOUNDATION; 

20 JAN DOE AND PAT DOE, PARENTS; DOECHILD-1, DOECHILD-2 and 

21 DOECHILD-3, MINOR CHILDREN; 

22 

23 Plaintiffs, 

24 v. 

25 

26 THE CONGRESS OF THE UNITED STATES OF AMERICA; 

27 THE UNITED STATES OF AMERICA; 

28 THE HANOVER SCHOOL DISTRICT (“HSD”); 

29 THE DRESDEN SCHOOL DISTRICT (“DSD”); 

30 SCHOOL ADMINISTRATIVE UNIT 70 (“SAU #70”); 

31 

32 Defendants. 

33 

34 

35 

36 MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR 

37 PROTECTIVE ORDER 

38 

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1 Plaintiffs, through counsel, submit this Memorandum in Support of Plaintiffs’ 

2 Motion for Protective Order. 

3 

4 BACKGROUND

5 This lawsuit has been filed with pseudonyms, rather than true names, for all 

6 Plaintiffs except Freedom From Religion Foundation (“FFRF”). As alleged in the 

7 Complaint, these pseudonymous Plaintiffs are all residents and citizens of 

8 Hanover, New Hampshire. This case involves objections to the use of the words, 

9 “under God,” in the Pledge of Allegiance as recited in the public schools. Each of 

10 the pseudonymous Plaintiffs is a minor child enrolled in a public school where the 

11 Pledge is recited, or the parent of such a child. It is believed that disclosure of the 

12 actual and true names of either the children or their parents will subject the minor 

13 children (and their parents) to potential harm. 

14 

15 LAW AND ARGUMENT

16 “Judicial proceedings are supposed to be open ... in order to enable the 

17 proceedings to be monitored by the public. The concealment of a party’s name 

18 impedes public access to the facts of the case, which include the parties’ identity.” 

Doe v. City of Chicago, 360 F.3d 667, 669 (7th 19 Cir. 2004). Nonetheless, “[t]he 

20 presumption that parties’ identities are public information, and the possible 

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1 prejudice to the opposing party from concealment, can be rebutted by showing that 

2 the harm to the plaintiff ... exceeds the likely harm from concealment. Id. In other 

3 words: 

4 In cases where the plaintiffs have demonstrated a need for anonymity, the 

5 district court should use its powers to manage pretrial proceedings, see Fed. 

6 R. Civ. P. 16(b), and to issue protective orders limiting disclosure of the 

7 party’s name, see Fed. R. Civ. P. 26(c), to preserve the party’s anonymity to 

8 the greatest extent possible without prejudicing the opposing party’s ability 

9 to litigate the case. 

10 

11 Doe v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000). 

12 It should initially be noted that the United States Supreme Court has permitted 

13 pseudonymous filings in precisely this type of litigation. Santa Fe Independent 

14 School District v. Doe, 530 U.S. 290 (2000) (parents individually and as “next 

friends” to their children challenged prayers at public high school football games).1 15 

16 This Court has the authority in its discretion to enter a protective order to control 

17 discovery and protect the rights of the parties. Doe v. Porter, 370 F.3d 558, 560-

18 561 (6th Cir. 2004) (upholding lower court’s grant of protective order allowing the 

19 use of pseudonyms in challenge to religious instruction in schools); Doe v. Stegall, 

20 653 F.2d 180 (5th Cir. 1981) (reversing lower court’s denial of protective order 

21 allowing for pseudonyms. The Stegall court noted that “religion is perhaps the 

 

1

 Subsequently, the high Court decided a case involving a pseudonymous filing 

where the justification appears to be nowhere near as compelling as in the instant 

action. In City of San Diego v. Roe, 543 U.S. 77 (2004), a police officer who was 

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1 quintessentially private matter,” and that the plaintiffs’ disclosures about their 

2 religion “have invited an opprobrium analogous to the infamy associated with 

3 criminal behavior.” Id., at 186). 

4 This Circuit has indicated that pseudonymous filings can be appropriate even 

5 when the plaintiffs are adults. Brown v. Secretary of Health & Human Servs., 46 

F.3d 102, 105 (n.5) (1st 6 Cir. 1995) (where “[t]he district court granted named 

7 plaintiffs leave to use pseudomyms in order to protect their privacy,” apparently 

8 due solely to the plaintiffs having low income, necessitating AFDC benefits.) 

9 When children are involved, the need for protection is obviously greater. In fact, 

10 this was discussed relative to a statutory prohibition in United States v. Three 

Juveniles, 61 F.3d 86 (1st 11 Cir. 1995). 

12 A sister circuit has looked at this matter in some detail. Holding “that a party 

13 may preserve his or her anonymity in judicial proceedings in special circumstances 

14 when the party’s need for anonymity outweighs prejudice to the opposing party 

15 and the public’s interest in knowing the party’s identity,” Advanced Textile, 214 

16 F.3d at 1068, the Ninth Circuit found three factors to be of consequence: 

17 [I]n cases where, as here, pseudonyms are used to shield the anonymous party 

18 from retaliation, the district court should determine the need for anonymity by 

19 evaluating the following factors: (1) the severity of the threatened harm, (2) the 

20 reasonableness of the anonymous party’s fears, and (3) the anonymous party’s 

21 vulnerability to such retaliation. 

 

terminated from his job because of sexually explicit videotapes he had made was 

permitted to file pseudonymously. 

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1 

2 Id. In the instant case, the evaluation of those factors demonstrates that need. Even 

3 the mildest threatened harm – harassment of children in the public schools – 

4 warrants the requested relief. Additionally – as the attached Exhibits show – the 

5 fears are reasonable, and each of the children (and each adult) is vulnerable to the 

6 harms. 

7 Exhibit A pertains to Joann Bell, a parent who had three children enrolled in a 

8 public school district. Ms. Bell filed a federal lawsuit to stop school-sponsored 

9 prayer meetings. She has written: 

10 After I filed the lawsuit, my family and I received numerous threatening 

11 telephone calls and letters. These threats promised physical harm and even 

12 death to my family members and me as a result of my involvement as a 

13 plaintiff in the lawsuit. Many of the telephone calls told me that our home 

14 would be burned. I could not even perform such simple tasks as shopping 

15 for groceries in the community without being confronted by other persons 

16 about the lawsuit. 

17 

18 Additionally, when she responded to a bomb threat at her children’s school, 

19 “several school employees circled the car. One of the employees grabbed me by 

20 the hair of the head and battered my head against the frame of the car’s door.” 

21 After the family’s home “was burned in a fire of suspicious origin,” the family 

22 moved from the school district “motivated by a grave concern for the safety of our 

23 family.” Exhibit A. 

24 Megan Black – a third grader – was grabbed and yanked by her public school 

25 teacher for not reciting the now-religious Pledge of Allegiance. This was followed 

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1 by more than two years of taunts and harassment by her fellow students, which did 

2 not end until she changed schools. Exhibit B. 

3 Bailey Wood was pushed up against a building by a classmate who made the 

4 sign of the cross, was called a “monkey” because she believed in evolution, and 

5 was called “stupid” because she didn’t believe in God. This apparently all stemmed 

6 from the fact that her atheism was exposed when she didn’t say the words, “under 

7 God,” in the Pledge. Exhibit C. 

8 “I dreaded the first day of school each and every year,” writes Abigail 

9 Schweter, because her not saying the Pledge as a child resulted in her being 

10 “ostracized” and risked a “confrontation with the teacher.” Exhibit D. 

11 Ellen Janowitz was “frequently ridiculed in front of the class” by her teacher, 

12 because she could not, in good conscience, recite the entire Pledge. At age 15, she 

13 suffered “stares and silence of my fellow students [that] were excruciating [and] 

14 are still painful to recall” twenty years later. Exhibit E. 

15 A book written by Professor Frank Ravitch of the Michigan State University 

College of Law details numerous other cases involving religious outsiders.2 16 For 

17 instance, the Herdahls were a Lutheran family in a Southern Baptist Mississippi 

18 town. When the Herdahl children did not participate in “decidedly Southern 

19 Baptist” public school prayers, they were harassed by “[b]oth teachers and 

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1 students.” When the family filed suit to stop this clearly unlawful practice, “the 

2 harassment got even worse. Her family received bomb threats. She received a 

death threat, and the name calling and ridicule worsened.”3 3 

4 A second story recounted by Professor Ravitch concerned individuals in 

5 Alabama. The Herrings were “a Jewish family whose children had been subjected 

6 to severe religious discrimination and harassment in school.” The children “were 

7 physically assaulted by classmates because of their religion; swastikas were drawn 

8 on their lockers, bookbags, and jackets; and they were regularly taunted by the 

9 other children.” The mother, in a sworn statement to the Court, stated: 

10 Every day that I send my children to Pike County schools, I wonder if I am 

11 sending them into a war zone. ... The consequences of the school environment 

12 on my children’s psyches are devastating. My children are growing up 

13 believing that America is a caste society and they are untouchables – except for 

the purpose of getting beaten up. One child suffered “serious nightmares.”4 14 

15 

16 “Rachel Bauchman, a Jewish high school student, objected to overtly religious 

17 songs, which were sung at high school graduations by the high school choir of 

18 which she was a member. ... Rachel obtained a court order prohibiting the 

19 graduation songs. However, at the urging of parents and some students, the choir 

20 performed one of the religious songs anyway. ... When Rachel and her mother got 

 2

 Ravitch FS. School Prayer and Discrimination: The Civil Rights of Religious 

Minorities and Dissenters. (Northeastern University Press: Boston, 2001).

3

 Id., at 8-9. 

4

 Id., at 9-11. 

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1 up to leave – Rachel in tears – parents and students in the audience jeered and spat 

on them.”5 2 

3 The proposed ORDER provides Defendants with adequate means of 

4 ascertaining the residency status, taxpayer status, or school enrollment status of the 

5 Plaintiffs. Discovery, if needed, can also be accomplished under the proposed 

6 ORDER while preserving Defendants’ rights. 

7 

8 CONCLUSION

9 Good cause having been shown, Plaintiffs respectfully request that the Court 

10 preserve the anonymity of the Plaintiffs by entering a protective order. 

11 

12 Respectfully submitted, 

13 

14 /s/ - Michael Newdow /s/ - Rosanna Fox

15 

16 Michael Newdow, pro hac vice Rosanna Fox, NH SBN: 17693 

17 Counsel for Plaintiffs O’Brien Law Firm, P.C. 

18 PO Box 233345 One Sundial Avenue, #510 

19 Sacramento CA 95823 Manchester, NH 03103 

20 

21 Phone: (916) 427-6669 Phone: (603) 627-3800 

22 

23 E-mail: NewdowLaw@gmail.com E-mail: rosief13@comcast.net

24 

25 

26 January 22, 2008

 

5

 Id., at 11-12. 

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