Free Speech

Doe v. Doe Libel Lawsuit Over Allegations of Sexual Misconduct by a Business Executive

Unsurprisingly, the exact allegations that are said to be libelous don't appear in the complaint.

|The Volokh Conspiracy |

This Doe v. Doe case was filed Monday in San Francisco Superior Court; plaintiff (described only as a "business executive") is suing defendants for libel, false light, and harassment, but it's basically a libel claim:

On or about May 21, 2019, Defendants caused to be published false and unprivileged statements directly injuring Plaintiff in his business and professional reputation by expressly stating in a written flyer … that Plaintiff is "an abuser." The Flyer identified both Plaintiff and his employer's names and their incomplete email addresses, as well as the hashtags: "#BelieveVictims" and "#SupportSurvivors." … Defendants retained and paid individuals … to distribute copies of it outside of a nearby event space where Plaintiff was speaking at a private conference sponsored by his employer.

Now I understand why the plaintiff wants to be anonymous—if he is identified, then more people will hear of the accusations against him, even if he's ultimately vindicated (or, as is more likely, the case eventually settles). But nearly all criminal defendants (except the very few whose identities have already become widely known), most civil defendants, and nearly all libel plaintiffs would prefer anonymity for the same reason; yet that's not the way that our system works.

As Seventh Circuit Judge Richard Posner put it (in an opinion joined by Judges Frank Easterbrook and Ilana Rovner), "Judicial proceedings are supposed to be open, … in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity." Indeed, even the great bulk of sexual harassment cases are litigated under both the plaintiffs' and defendants' real names.

There are, to be sure, exceptions; victims of outright sexual assault are generally allowed to use pseudonyms, for instance. Minors usually litigate under pseudonyms (whether John Doe or initials such as M.V.). Facial challenges to government actions—such as claims that a speech restriction is unconstitutionally overbroad on its face—are sometimes brought pseudonymously, with little controversy because the identity of the particular plaintiff is largely irrelevant in such cases (I was involved as a consultant in one such case). There are some other categories as well.

But, again, they are exceptions. That one has been accused—perhaps falsely—of bad behavior (e.g., sexual harassment as an employer) is generally not seen as sufficient to justify concealment of one's name, whether one is a libel plaintiff, a sexual harassment civil defendant, or a criminal defendant.

What's more, if the legal system really commits itself to concealing a libel plaintiff's identity, it will have to suppress a great deal of information at the heart of the case, including the specific statement that's alleged to be libelous. After all, even if the plaintiff's name is redacted from the statement, there will often be enough to identify the plaintiff—for instance, in online libel cases, if the material hasn't yet been removed, including any part of it in court filings may make it easy for people to just Google that part and see the whole statement. (The wrongful search optimization lawsuit I blogged about two weeks ago is an example of that; I found the underlying facts using Lexis, a pay service, but I think they could have been found via Google as well.)

That may push the court towards not just allowing pseudonymity but also sealing the allegedly libelous statements that are at the very heart of the litigation (as I've seen happen in at least two pseudonymous libel lawsuits). And that would make it much harder for the public to monitor how courts are resolving the libel lawsuits—and in the process monitor (and perhaps critique) when and why courts are restricting defendants' speech, whether through damages awards or injunctions.

Of course, a court could adopt pseudonymity without sealing, perhaps on the theory that pseudonymity will at least expose the plaintiff's identity less to casual searchers, even if determined reporters (and others) who really want to cover the case can figure out what's going on. But my sense is that allowing a libel plaintiff to proceed as a Doe is often just the first step towards broader public access restrictions as well.

In any event, I thought I'd flag this case as an interesting example of this broader question—and an interesting consequence of the recent increase in public attention to alleged sexual harassment. I hope to write about a few other such cases in coming months as well.

UPDATE: A commenter asked why there's a Doe defendant here as well as a Doe plaintiff. The answer is that plaintiff states he doesn't know who was responsible for the flyers, and plans to use discovery to try to figure that out; here's an excerpt from a motion the plaintiff filed after this post went up (but that was doubtless planned from the outset):

Plaintiff seeks ex parte relief to conduct early discovery on a third party to identify Jane Doe ("Defendant") in his defamation lawsuit. The lawsuit's causes of action stem from an anonymous online advertisement posted on Craigslist, Inc.'s ("Craigslist") website [seeking to hire people to do the leafleting], resulting in defamatory accusations that Plaintiff is "an abuser." Plaintiff seeks to issue a subpoena duces tecum against Craigslist, the only entity that can provide the Defendant's identity to Plaintiff for service of the Summons and Complaint.

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  1. There is another option. Allow anonymity until the case is concluded at which point all information not otherwise protected (trade secrets, identification of minors, etc) is unsealed, including details of settlements?

    1. Or make anonymity something like the way preliminary injunctions and provisional remedies work– require some very strong showing that the plaintiff is likely to win the case.

      Because it seems to me that if the case is a slam dunk, the interests are very different– not only does the plaintiff deserve some protection, but the interests of the public in knowing the details of an open and shut case are weaker.

      1. When an “open and shut case” gets decided unexpectedly, the interests of the public in finding out why are pretty strong.

  2. “That may push the court towards not just allowing pseudonymity but also sealing the allegedly libelous statements that are at the very heart of the litigation (as I’ve seen happen in at least two pseudonymous libel lawsuits). And that would make it much harder for the public to monitor how courts are resolving the libel lawsuits—and in the process monitor (and perhaps critique) when and why courts are restricting defendants’ speech, whether through damages awards or injunctions.”

    True. But making it ruinous to use the legal system to obtain redress for wrongs means that people will turn to other avenues, which are unlikely to be public at all.

  3. IANAL so asking…

    Is it normal to sue an unknown defendant?

    The guy literally doesn’t even know who the defendants are.

    1. It’s not normal in the sense that it’s not what usually happens, but it’s not abnormal in the sense of outlandish or improper. As the complaint notes, California law expressly allows for this procedure:

      When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly….

      Cal. Civil Code § 474. Indeed, filing a lawsuit is usually the only way to access the compulsory process that allows a plaintiff to discover the defendant’s identity.

      1. Tanks lodge.

    2. Not having any identified defendants, with JANE DOE being the lead defendant, is uncommon. But including unknown defendants as DOES (1-10) or the equivalent is standard practice, either because there are known unknown defendants (I know Officers 2 & 3 punched me too, but I don’t know their identities yet) at the time of the filing or in case discovery leads to the identification of additional defendants (I didn’t realize Officer 4 was there too).

      As Noscitur a sociis notes, filing a lawsuit gives the plaintiff access to tools he ordinarily wouldn’t have access to. In this case, the plaintiff is probably going to subpoena Craigslist for the identity of the person who placed the add for people to distribute the fliers, who will probably be the person who made the flier (or at least connected to them).

  4. “victims of outright sexual assault are generally allowed to use pseudonyms, for instance.”

    The law should be transparent, but if alleged victims are allowed to use pseudonym’s, then alleged perpetrators should be too.

    1. Indeed, at this point, the anonymity protections seem entirely backward. There is now no reputation damage arising from being publicly identified as a person claiming to be a sexual assault victim, whereas the reputation damage from standing publicly accused of sexual assault may well be irreparable (regardless of whether or not any charges are ever filed or are dismissed or a trial results in acquittal).

      1. ” There is now no reputation damage arising from being publicly identified as a person claiming to be a sexual assault victim”

        Right. People line up to date rape victims, because they’re known to never have long-standing effects from the experience.

        1. I’m pretty certain people are more willing to date, marry, and hire rape victims than anybody for whom a Google search shows a past arrest for rape.

          And note that many people have come forward and publicly claimed to have been raped in the past despite never having filed any charges. Such claims would not come to light otherwise, and yet rather a lot of people seem quite eager to reveal this information (possibly because, in certain circles it seems to confer a sort of intersectional status).

          1. “I’m pretty certain people are more willing to date, marry, and hire rape victims than anybody for whom a Google search shows a past arrest for rape.”

            Me, too. But if you look at the passage I quoted earlier, you’ll note that this is NOT the claim I responded to.

            “(possibly because, in certain circles it seems to confer a sort of intersectional status”

            Could you throw that shade a little harder, please?

            1. “But if you look at the passage I quoted earlier, you’ll note that this is NOT the claim I responded to.”

              Yes, and you’ll notice that that wasn’t my only response. The other half was that the reputation risk of being known as a sexual assault victim is apparently low enough that many people willingly reveal their assaults publicly.

              But at least you concede that the reputation hit from a publicly reported rape arrest is greater than from a publicly reported sexual assault claim. So then are we agreed it should be more important to protect the ID of the accused before conviction than of the victim?

              1. Again with the goalpost-shifting?

                Begone!

        2. “Right. People line up to date rape victims, because they’re known to never have long-standing effects from the experience.”

          OK, maybe rape victims have trouble getting dates. But there is a quite outspoken and public campaign to socially and financially ostracize people who have been merely accused, without process, of sexual misconduct. And I understand no one is lining up to date them either. So as I said, if one is entitled to anonymity, the other should be.

          1. ” But there is a quite outspoken and public campaign to socially and financially ostracize people who have been merely accused, without process, of sexual misconduct.”

            Is there a part of this argument I’m supposed to object to?

      2. @Slocum, you are a sexual assaulter.

        Do you feel that your reputation is now irreparably harmed because of that assertion?

        1. Well, no, since that’s not my actual my name, but mostly because we’re talking about a random blog comment rather than a story of my arrest for rape published in a local newspaper. If such a story actually existed, yes, I believe my or anybody’s reputation would be irreparably harmed and they would likely lose life opportunities due to it (and without ever being sure of the reason why).

          1. So, shifting the goalposts is OK when you do it, but ONLY when you do it?

            1. No goalpost shifting. A newspaper report of a rape arrest would be highly and irreparably harmful. So would multiple people distributing flyers (with my real name, employer, and contact information) accusing me of sexual assault outside an industry conference I was attending. And so would newspaper stories about a lawsuit I was involved in regarding those flyers.

              1. To be clear then, you consider “standing publicly accused” to be synonymous with “a newspaper report,” and an accusation of being “an abuser” synonymous with an accusation of having committed “sexual assault.”

                You must own a different thesaurus than the one I have.

                1. First, the question here is about naming the plaintiff in the suit — which would inevitably result in press reports (such as this one on the Volokh Conspiracy). Second, I’ll conceded the rather obvious point that not all public accusations are of the same degree. But one that involved A) hiring a firm to print and distribute flyers, B) with the person name, contact, and employer details C) outside a conference where the person was a speaker is a much higher impact public accusation than a random blog comment. Does that help?

  5. This one is the reverse of the usual case where a person is suing an alleged abuser however that situation also allows for using the courts to obtain a settlement or to damage the reputation of a person based on unproven, un-provable or even provably false allegation. It is a form of “legal” blackmail.

  6. After reading the complaint I can see why the plaintiff needs to remain anonymous. His suit pertains to flyers that were posted stating he is “an abuser.” Seems a bit vague, but okay, let’s see how this has affected “business executive.”

    “As a proximate result of Defendant’s false and defamatory accusations contained in the Flyer, Plaintiff suffered and continues to suffer injury to his reputation, shame, mortification, anguish, and injury to his feelings. … The public accusation exposes Plaintiff to hatred, contempt, ridicule, or obloquy.”

    Yeesh! This guy is an absolute mess as a result of being called “an abuser” on flyers that were handed out on street corners. He’s had a completely physical and emotional breakdown. It seems reasonable to believe that if his name were to be made public in this suit his reputation would be further harmed as others see how this “business executive” reacts in tense and often antagonistic situations. I certainly wouldn’t feel confident hiring an executive who experiences such a degree of physical and emotional turmoil over a flyer. I mean, the corporate world is a rough place and you gotta have some thick skin. This guy is liable to breakdown in tears during the interview and then sue the interviewer for his hurt feelings.

    I do also like the claim by his attorney that “No one in California would want to be known as doing business or associating with a person that abuses others.” Dude went out and surveyed all 39.6 million Californians! That is some serious billable hours and dedication to the facts.

  7. Judicial proceedings are supposed to be open, … in order to enable the proceedings to be monitored by the public. The concealment of a party’s name impedes public access to the facts of the case, which include the parties’ identity

    I think it’s time we ask whether open lawsuits are still in the public’s interest.

    Are lawsuits merely public spectacle? Is there significant risk of judicial malfeasance? Is the judiciary actually accountable to the body politic?

  8. “There are, to be sure, exceptions; victims of outright sexual assault are generally allowed to use pseudonyms, for instance …”

    Which assumes the assault that the defendant may be denying every happened. As we know has occurred many times.

  9. I’m not sure how publicizing court cases works, so I may be off base (IANAL, etc.), but….

    It seems to me that at the trial level, they’re not as easily discoverable than they are at the appellate level. Is it possible that the plaintiff could be named at the trial level with minimal damage to reputation, but once things go up to the appellate level the names could be pseudonymized? If my assumptions about how discoverable things are are correct, then maybe that’s a workable solution that balances the purported need to make trials public with the need to reduce visibility.

    Just a thought.

  10. […] an interesting post from Professor Eugene Volokh discussing a libel case recently filed in San Francisco by a plaintiff […]

  11. It’s an old thread, but a new case has come up that I believe gives it relevance once more:

    https://www.thecollegefix.com/breaking-lawsuit-by-vcu-prof-accused-of-racism-dismissed/

    Now: Given that this blog gives a high weight to the public’s right to know all about any court proceeding including the names of parties — why do the parties now get to keep their settlement secret? The public wants to know how it all came out and why!

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