Free Speech

#MeToo, #TheyLied, and Pseudonymous Litigation (II)

When can libel plaintiffs, suing over allegedly false claims of sexual misconduct, sue pseudonymously? When can defendants defend pseudonymously?

|The Volokh Conspiracy |

I blogged about this a month ago, but here's a newly filed case that raises precisely the same issue; it's Roe v. Does (E.D.N.Y.), and here's the key passage from the motion to seal:

Plaintiff is an executive coach, consultant, entrepreneur and non-profit director who has been the subject of a persistent, anonymous campaign to damage him professionally and to cause him emotional distress. This campaign has resulted in significantly reducing his income and has had a profoundly negative impact on his professional, civic and personal life…. These false accusations have provided salacious details designed to evoke an emotional response in recipients, without identifying or supporting information as to the alleged victim. Furthermore, the accusations have provided no specific dates, times or other information that would make it possible to refute them. These accusations are described in detail in Plaintiff's complaint….

[T]he Defendants have undertaken an anonymous harassment campaign against the Plaintiff, which falsely accuses the Plaintiff of nonconsensual harassment, sexual advances, and rape. Such allegations are undoubtedly matters of a "highly sensitive and personal nature." The sensitive subject matter of this lawsuit could bring further embarrassment and unwanted publicity to the Plaintiff, precisely because the subject matter of the causes of action and the nature of the claims themselves contemplate intent by the Defendants to harm his reputation through public disclosure.

Without necessary protective devices, Plaintiff faces a catch-22 because the defendants have defamed Plaintiff with third parties but not yet with the public at large. Either he must altogether avoid redress of legitimate grievances through judicial action against unrelenting defendants hoping they will stop short of full public humiliation; or by the very act of filing a lawsuit in his own name, he risks the same greater damage to his reputation that defendants already seek to impose upon him through the very same judicial process by which he could redress those grievances….

The pseudonymous Complaint and the motion to proceed pseudonymously aren't available on PACER yet, but apparently that stems from a glitch, and the materials should be publicly posted shortly.

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  1. I once had something like this done to me because I spoke out against Sorority hazing, which was both my job and a legal mandate.

    While I understand and respect Prof Volokh’s points, what then is the remedy? Not having one is not a solution because some (not all) will then resort to extra-legal means to redress their injuries.

    In my case, the sororities got to continue hazing their pledges, laws prohibiting hazing notwithstanding, by getting rid of me. Why have laws against hazing in the first place?

  2. Such anonymous harassment campaigns are straight out of the communist agitation playbook. Worked back in the 50’s, still works today.

    1. Modern day Commie struggle sessions. We have to defeat these vile people before there is a fullblown commie Cultural Revolution.

      1. The “guillotine” has become a popular meme with the Left, but the media never seems to cover the occasional trending hashtag ever. Any mention though “dealing with communists” though will get you a round of accusations that you are inciting violence. Odd I haven’t seen the usual suspects chime in here yet.

  3. 🙂 Could we discuss this via Zoom? [Just a small joke. https://www.marketwatch.com/story/zoom-stock-falls-amid-service-outage-2020-08-24 ]

  4. In the old days, when one’s honor was maligned, one could defend said honor by challenging the other party to a duel. Could we have Doe vs. Roe, between two masked swordsmen, identities unrevealed?

    1. Wasn’t dueling illegal — which is why it was done in NJ?

      1. Dueling was outlawed by Congress in DC in 1839. The states started to outlaw dueling under state law in the 1850s.

        There was a time when it was legal.

        1. As I understand it, dueling has generally been viewed as murder (or attempted murder, as the case may be) throughout American history; that’s why Aaron Burr, for instance, was indicted for murder. (See pp. 1813-21 of this article for more.) But the law was systematically unenforced, which led to attempts to supplement it in various ways.

  5. Again, one sees the result of having an all-male blog site and obviously all-male commenters.

    I don’t see how this can even be an issue. Of course plaintiff has to be anonymized. One can see this most clearly with a female who is being accused of promiscuity and doing all number of sexual acts with anybody. I can already hear adolescent giggles from the commenters here but we are talking about a real injury for which redress has to be anonymized, particularly when it’s online and the defamers themselves are anonymous, hiding behind childish screen names. See Doe v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008).

    1. On the internet, women don’t exist.

      1. Sometimes, I think it would be better if only sexbots existed….

    2. “he must altogether avoid redress”

      So not a woman.

    3. captcrisis: Can you elaborate a bit? Despite what you view as the limitations of my gender (and the gender of most of our cobloggers), I think I present a pretty balanced view on this particular subject — see, for instance, this post, which I link to above, and this post, which was linked to from the earlier post. I note, among other things, that “[t]here are quite a few sexual assault cases in which the plaintiff has been allowed to litigate as a Doe”; those are overwhelmingly brought by women. I note that some courts have accepted this logic as to libel plaintiffs in cases involving accusations of sexual assault. And I note that some courts have rejected it.

      You, on the other hand, despite what you see as your greater attention to the benefits of gender diversity, “don’t see how this can even be an issue” — what courts see as a difficult question, and one that is the subject of some disagreement, is open-and-shut obvious to you. And your attention to what you see as the women’s perspective is so great that you think “of course” this man who has been accused of sexual assault ought to be able to litigate against his accusers (and potentially impose massive liability on them for their accusations) with his name sealed.

      I certainly agree that we should all try to go beyond our identities, and try to think how the rules we discuss would play out for people who are different from us. That can enrich the analysis, and suggest that things that seem obvious from our own perspective may be more complicated than they at first appeared.

      But here your embrace of the need for diversity seems to rather narrow your perspective instead of broadening it, to the point how it keeps you from “see[ing] how this can even be an issue.” How is that good? Or am I missing something here?

      1. OK, sorry, I overreacted. I was responding more to some of our commenters than to the post.

        1. Got it, and thanks for the gracious response!

  6. “executive coach”

    Train or horse drawn?

  7. Defendant(s) should be offered choice of disclosing *all* their identities, or being enjoined to silence. But, if the defendant(s) choose to go public, then the plaintiff’s identity should also be disclosed.

  8. My general view remains that the First Amendment does create a strict-scrutiny-level right to see court documents. While there is a common-law presumption bolstered by policy arguments, legislatures and courts are free to craft exceptions bolstered by countervailing policy arguments, and different jurisdictions are free to weigh the balance and draw the lines differently based on assigning different weights to each policy value.

    Professor Volokh has a strong investment in as robust a First Amendment as possible, but that doesn’t make the First Amendment as far reaching as he wants it to be.

    The First Amendment may create limits on government’s ability to inhibit reporters from collecting information. But it doesn’t obligate government to affirmatively supply information.

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