Court Lets Plaintiff Suing Over "Pro-Hamas Demonstrations at Northwestern" Proceed Pseudonymously

Plaintiff had alleged that being publicly identified would put him at risk of physical harm.

From the plaintiff's argument in Doe v. Northwestern Univ. (N.D. Ill.); Judge John Robert Blakey has granted the motion, without a detailed explanation, but likely because he agreed with its general argument:

Plaintiff [John Doe 3] is a Jewish student at Northwestern University … who has been subjected to threats of physical violence while on campus and is the victim of retaliation and false accusations by individuals that attended pro-Hamas demonstrations at Northwestern. Other Jewish students on campus have been physically assaulted and have similarly faced severe and pervasive hostility on campus as a result of their Jewish identity. The perpetrators of these acts of intimidation and violence have acted with impunity and are waiting for Plaintiff on campus when he returns this Fall quarter. Plaintiff thus brings this motion to proceed pseudonymously in order to protect his identity and avoid further victimization.

Northwestern has adopted various policies designed to ensure the privacy of victims of discrimination and other wrongs. Not only does Northwestern claim to protect victims, but the university has also stated that it will protect the very individuals that are responsible for the harassment and threats of violence Plaintiff endured on campus. Northwestern recognizes the potential harm Plaintiff would face if his identity was exposed and does not oppose Plaintiff's request for anonymity. Nevertheless, because the Seventh Circuit disfavors the use of pseudonyms by litigants, the Court must engage in an exacting independent analysis of Plaintiff's request.

The Seventh Circuit has long rejected the use of a rigid test for determining whether the harm to the plaintiff from public identification exceeds the likely harm from concealment of their identity. Rather, the Seventh Circuit requires district courts to engage "in the careful and demanding balancing of interests required in making this determination," which includes consideration of, inter alia, whether a victim or wrongdoer seeks anonymity, whether disclosure risks retaliation to the victim, whether the public interest is served by anonymity, and whether a defendant will suffer any prejudice. The Seventh Circuit's recent decisions in Doe v. Trs. of Ind. Univ. (plaintiff John Doe sued Indiana University after he was expelled for physically abusing female student), and Doe v. Loyola Univ. Chi. (plaintiff John Doe sued Loyola after he was expelled for nonconsensual sexual activity with female student), do not change this analysis, because (as discussed below) neither sets forth a rigid test to be applied to victims of discrimination who are at risk of further violence and retaliation for their religious identity.

As a victim of severe hostility and discrimination based on his Jewish identity, Plaintiff reasonably fears further harm and retaliation from disclosure of his identity. As explained below, this harm is not speculative but grounded in the calls for violence against Jews on campus, and indeed, actual acts of violence. Moreover, Plaintiff reasonably fears retaliation because his perpetrators remain on campus and, over the course of the summer, have continued their efforts to harass and threaten Jews out of hatred….

This action concerns information of the most private and personal nature for Plaintiff, the disclosure of which would put him at risk of suffering further injury, including physical assault. "Lawsuits involving religion can implicate deeply held beliefs and provoke intense emotional responses[,]" which may raise the "'danger of retaliation'" and provide "compelling ground for allowing a party to litigate anonymously.'" The Seventh Circuit reiterated this point in Loyola, stating that retaliation based on an "animus toward people with unpopular religious belief" may warrant a plaintiff proceeding anonymously. Loyola Univ. Chi. (citing Doe v. Elmbrook School Dist.).

Here, Jewish students like Plaintiff have become persona non grata on Northwestern's Evanston campus. E.g., Compl. ¶ 89 (sign with black Star of David with a red slash through it); ¶ 100 ("we don't want no Zionists here"). Among other allegations, Plaintiff alleges that Northwestern permitted an openly hostile, discriminatory, and at times violent group of demonstrators to squat for days on the main campus lawn of Deering Meadow in an encampment called the "Liberated Zone." The encampment contained individuals who are openly pro-Hamas, a designated terrorist organization that calls for, inter alia, "attack[ing] every Jew on planet earth" and to "fight Jews and kill them." These calls for violence have been heeded by individuals on Northwestern's campus. For example, Jewish students on Northwestern's campus were physically assaulted, spat on, called "dirty Jews," and told to "burn in hell." During one particular incident on campus, Plaintiff encountered protesters promoting the slogan: "resistance is justified when people are occupied. #AlAqsaFlood," which only refers to Hamas' October 7th murder, raping, and torture of Jews. Plaintiff is also concerned that individuals that have threatened him with physical violence may attempt to "doxx" him and otherwise continue to assert harmful false accusations against him as a form of retaliation.

As a result, Plaintiff reasonably fears that he will face similar physical and verbal antisemitic incidents on Northwestern's campus when Northwestern's Fall Quarter begins in September 2024, and beyond…. Finally, Plaintiff also fears threats from the public given the general rise of antisemitic incidents in the United States and, more specifically, the public attention the issue of antisemitism on college campuses has received.

At this stage, Plaintiff is not required to submit "evidence of actual violence arising out of this particular suit." Elmbrook Sch. Dist. Rather, Plaintiff's uncontradicted account of past retaliation suffices and the Court should not give "an innocent construction [to Plaintiff's experiences] in order to reject [his] motion."

Elmbrook Sch. Dist. is instructive. In that case, plaintiffs testified that "they and their children had suffered reprisals in the past—including from teachers, school officials and workplace supervisors—for airing their views on religion and that they feared future reprisals should their involvement in the litigation become public knowledge" and submitted comments from an online forum supporting their concern for future harm. Despite the Seventh Circuit finding that "[m]ost of the comments [concerning plaintiffs] merely reflect[ed] the overheated rhetoric common to passionate debate about significant social issues," the court affirmed the district court's finding that pseudonyms were warranted. With respect to the online comments, the Seventh Circuit found that comments such as " Does' views '[s]ound[] like the Muslim attitude of hating all Christians and wanting to do away with them,' that the appropriate response is to 'do them in before they do you in' and suggesting that the conflict between supporters and detractors of the District's use of the Church is 'a war of survival'" raised "legitimate concerns" for retaliation. Similar comments against Jews—if not more violent—were routinely shouted at Plaintiff and found on campus….

Plaintiff has "disclosed his identity to Northwestern on an Attorney's Eye's Only basis," and "seeks only to shield his identity from the public."

Plaintiff also argued,

Plaintiff's request for anonymity is not only justified, but also supported by the public interest in ensuring the enforcement of Title VI. As an initial matter, Plaintiff's actual identity has minimal value to the public in cases such as this, where the legal and procedural rulings will remain a matter of public record…. Furthermore, the public's general interest in open proceedings is outweighed by its interest in enforcing Title VI and protecting the identities of victims "'so that other victims will not be deterred from reporting such crimes.'"

Here, Plaintiff was subjected to a hostile and discriminatory environment, including threats of physical violence, by untold numbers of Northwestern students, faculty, and employees, as well as unaffiliated third parties Northwestern allowed on its campus. Such conduct is part of a much larger history of Northwestern tolerating antisemitism on campus. What's more, while the public interest in ensuring a non-hostile educational environment for Jewish students at Northwestern alone is enough, the public has a strong interest in sending a message to all universities that antisemitism on campus cannot be institutionally acceptable. Breaking the systemic acceptance of antisemitism on college campuses will only be dismantled through Plaintiff's and others' courage in seeking justice and reform. Allowing Plaintiff to proceed anonymously will encourage other victims of discrimination to come forward without the risk of harassment, retaliation, and unwanted public attention. A contrary determination may result in deterring other victims of discrimination from coming forward to vindicate their rights, and in allowing bigot perpetrators to continue to harm others without fear of prosecution. Therefore, it is in the public interest to allow Plaintiff to proceed anonymously, ensuring open access to proceedings without denying him access to the justice system. Thus, this factor also favors anonymity….

Here's an excerpt from Doe v. Elmbrook School Dist. (7th Cir. 2011), on which the motion heavily relies; the case involved an Establishment Clause challenge to "the District's practice of holding high school graduation ceremonies and related events at a Christian church rented by the District for the occasion":

The Does' motion was supported by sworn declarations from eight of the plaintiffs. They testified that they and their children had suffered reprisals in the past — including from teachers, school officials and workplace supervisors — for airing their views on religion and that they feared future reprisals should their involvement in the litigation become public knowledge. In addition, the Does attached comments posted in an online community forum after this lawsuit was filed. Most of the comments merely reflect the overheated rhetoric common to passionate debate about significant social issues, but a few comments do raise legitimate concerns, including one comment that the Does' views "[s]ound[] like the Muslim attitude of hating all Christians and wanting to do away with them," that the appropriate response is to "do them in before they do you in" and suggesting that the conflict between supporters and detractors of the District's use of the Church is "a war of survival."

Lawsuits involving religion can implicate deeply held beliefs and provoke intense emotional responses. Although there is no evidence of actual violence arising out of this particular suit, the district court was not required to disbelieve the Does' uncontradicted accounts of past retaliations against them and their children or to give the online postings an innocent construction in order to reject the Does' motion. The district court's assessment of the seriousness of the potential danger faced by the plaintiffs is certainly entitled to significant deference by this court. District judges sitting in communities throughout the vast area included within our circuit are far more familiar with the customs and practices of individual communities and far better situated to assess accurately the "temperature" of public discourse in those communities. Those of us who review cold records in our appellate chambers must exercise great circumspection in evaluating the estimation of our colleagues in the district court in these matters.

It also is significant that children are involved in the suit. Although Doe 1 is no longer a minor, Doe 1's sibling Doe 3 is, and Does 2, 4 and 9 currently have minor children attending District schools. Identifying these adult plaintiffs also would expose the identities of their children. Because the subject matter of the suit frequently has a tendency to inflame unreasonably some individuals and is intimately tied to District schools, such a risk to children is particularly compelling.

The district court was entitled to conclude that the Does' interest in privacy, supported in the record, outweighs the public's interest in totally transparent judicial proceedings to the extent that the Does need not divulge their real names.

Note that one concern raised by the plaintiff—that requiring plaintiff to identify himself would deter him and similar plaintiffs from suing to enforce Title VI—rarely carries the day by itself, since it would be present in a vast range of cases. Many ex-employees, for instance, may in some measure be deterred from filing employment claims for fear of being viewed as litigious by future employers; and of course many such plaintiffs might worry that the defendant will argue that the plaintiff was really fired because of some alleged misconduct, and plaintiffs might be deterred from suing by the prospect of such claims being publicly aired. Likewise, many defendants might settle proposed lawsuits for fear of being publicly accused (of, say, rape or malpractice or fraud or what have you), and may therefore be deterred from raising sound defenses (such as "I didn't do it").

But courts are indeed open to pseudonymity when there is some serious risk of physical harm to the plaintiff from third parties who might learn of plaintiff's identity (see pp. 1397-98 of The Law of Pseudonymous Litigation); perhaps in this case the judge concluded that enough such risk was indeed shown; see also this Exhibit to plaintiff's complaint that plaintiff argued supported his concerns about physical harm.

Plaintiff is represented by Elizabeth A. Fegan & Jonathan D. Lindenfeld (Fegan Scott LLC) and David Freydin.