Free Speech

#MeToo, #TheyLied, and Pseudonymous Litigation

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

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Recent years have seen a surge of high-profile sexual harassment and sexual assault lawsuits (though there were plenty before as well). They have also seen a surge of

  • libel lawsuits by people (mostly men) who say they were falsely accused of sexual abuse, and who sued their accusers (mostly women);
  • libel lawsuits by the accusers who say they were falsely accused of lying (e.g., the libel lawsuits against Bill Cosby); and
  • due process and Title IX lawsuits by students who say they were wrongly disciplined by colleges in sexual misconduct investigations.

Many plaintiffs and defendants in these lawsuits want to proceed pseudonymously, to shield their identities from the public (though of course not from each other). But whether they can do so turns out to be complicated and unsettled.

There are quite a few sexual assault cases in which the plaintiff has been allowed to litigate as a Doe, and quite a few such cases involving lawsuits against colleges by people who claim to have been falsely accused. But I can't say this is firmly established even within those categories; and things are even less clear in libel cases. I wrote about two such cases last year, and yesterday a federal court handed down another.

Jane Doe and John Doe are Oberlin College students. It is undisputed that they had sexual activity, but Jane Doe claims it was rape. She complained to Oberlin College, which found in John Doe's favor. And she had also allegedly made similar claims to friends. John Doe then sued for slander and related torts, but wanted to proceed pseudonymously, as did Jane Doe. Judge James S. Gwin, however, said no:

On March 12, 2020, Plaintiff John Doe sued Defendant Jane Doe in the Lorain County Court of Common Pleas. On March 13, 2020, the Lorain County Court granted Plaintiff's motion for both parties to proceed using pseudonyms. On May 8, 2020, Defendant removed the case to this Court.

On June 3, 2020, the Court ordered both parties to file briefing on whether they can
proceed anonymously. Both parties complied and moved to proceed anonymously [as to their own anonymity, though] {Plaintiff opposed Defendant's motion to proceed anonymously}.

Federal Rule of Civil Procedure 10 requires complaints to state the parties' names. {See Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) ("As a general matter, a complaint must state the names of all parties.").} But courts may excuse parties from identifying themselves when their privacy interests outweigh the presumption of open judicial proceedings.

When weighing these privacy interests, certain factors could support contravening the typical rule of open court proceedings: "(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children."

Both parties seek anonymity to avoid the disclosure of intimate information. They
suggest that this suit will necessarily involve discussion of sexual contact that will leave each stigmatized.

The only controlling caselaw the parties cite in support is Doe v. Porter. There, the Sixth Circuit affirmed the district court's anonymity allowance. But the Sixth Circuit affirmed because the suit involved three of the before-mentioned privacy considerations: it challenged government activity, involved religious beliefs which "invited an opprobrium analogous to the infamy associated with criminal behavior," and was brought on behalf of children.

In contrast, this case does not challenge government activity and concerns only the actions of adults. While the parties may want to keep discussions of their sexual activity private, this preference does not outweigh the presumption of open judicial proceedings.

The public has a right to access court records except in the limited matters Congress has deemed confidential. This suit does not fall within any such exception. The Court hereby DENIES the parties' motions to proceed anonymously. The Court VACATES the March 13, 2020, protective order permitting the parties to proceed anonymously. The Court ORDERS the Clerk of Court to (1) update the electronic docket to identify Plaintiff and Defendant by their full legal names and (2) unseal all documents in the court record.