The Volokh Conspiracy
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Court Orders #MeToo Plaintiff Not to Mention Defendant's Name in Public
The unusually named case is Doe v. Anonymous #1, now pending in Brooklyn state trial court.
Jane Doe sued Anonymous #1, claiming that he sexually touched her while providing "wellness treatments" as a "Nutrition-Coaching-Exercise-Mindfulness" expert at a "boutique quantum healing practice." She also sued Anonymous's companies (Anonymouses #2 to #4). The defendants counterclaimed for defamation, among other things.
The plaintiff sued as a Doe but named Anonymous; Anonymous then sought pseudonymity, on the grounds that "the false and unsubstantiated allegations made in this action threaten to destroy my good reputation in my community and have had a devastating effect on my family…. I have been unable to sleep and have suffered extreme emotional and physical distress." Anonymous also noted that he is "a well-known and respected member of the Jewish Orthodox community in Brooklyn and executive director of a not-for-profit Jewish organization that help people who are suffering from all types of crisis."
Justice Loren Baily-Schiffman agreed, granting the motion "to the extent of permitting defendants to proceed as Anonymous 1-4." (Neither the court nor the defendants seem to have been working hard to preserve the pseudonymity within the court files, though, since both parties' names are readily available in various publicly accessible documents.)
But after that, Doe sent e-mails and posted items online naming Anonymous (using his full name); according to Anonymous,
[V]iolating this Court's anonymity Order, Plaintiff sent an email to me and more than a dozen other people disclosing my name and Defendants' names and website addresses falsely accusing me, my family and my employees of committing crimes. In that email she wrote, "… At this point, these criminals [my name redacted], his family, and employees are guilty of attempted murder and possibly murder… " …
Plaintiff posted a video and a written statement on Instagram and other social media platforms disclosing my name and the Defendants' names and website addresses and disseminated that information all over the Internet. In that posting and video, she again accused me of being a criminal, directed people to Defendants' businesses websites, and posted my picture on the Internet. In her posted statement she wrote, "[my name redacted] … is the criminal, along with his family and employees who harmed my biofield, and tried to trap this Goddess for himself. I couldn't find my way out until Goddess came to help me heal myself. While healing my biofield, I died in the intensive care unit, and came back to life. What story do you want to tune into and tell?"
Anonymous then asked the judge to hold Doe in contempt, and order her to stop mentioning Anonymous's and the other defendants' names, and the judge agreed, granting the contempt motion. The judge therefore concluded that the original pseudonymity order also served as a gag order on the parties, rather than merely indicating what may be included in court filings.
And even before the contempt hearing, the court (apparently Justice Debra Silver, present for Justice Baily-Schiffman) issued a temporary order barring Doe from "disclosing and disseminating the names, addresses, emails, websites and contact information of any of the Defendants to any third party or the general public at-large," as well as (in a separate provision) "falsely accusing" defendants. The injunction after the hearing also granted the motion "for a preliminary injunction maintaining the status quo of the anonymity of the parties," so presumably that "stop naming defendants" order remains in effect.
(The judge also granted summary judgment for one of the business defendants on defamation, but that appears to have been limited to that one defendant. The motion seems to have been noticed on what struck me as a tight timeframe—it was filed Sept. 16, scheduled to be heard Sept. 23; I didn't see any indication of a response by Doe, who was unrepresented by counsel at the time.)
Now perhaps the judges were skeptical about Doe: After her lawyer withdrew based on "irreconcilable differences" with the client, Doe sent e-mails to Anonymous (bypassing Anonymous's counsel) demanding $5 million in a settlement and then later $10 million, "if you wish to remain anonymous." Perhaps the judge perceived this as a form of extortion—though it doesn't seem that different in substance from what lawyers routinely do.
Still, I think the broad "don't name the defendants" order is hard to justify; and I'm also skeptical about the judge's conclusion that the original pseudonymity order itself forbade naming the defendants outside court and not just in court filings. I've seen that in some other cases, but I don't think it's constitutional, absent evidence of real threat of physical harm (e.g., when a party is a confidential law enforcement informant) and not just reputational harm.
Courts have considerable power to control what can be put into the court's file, though even there the law generally disfavors pseudonymity for most parties (some courts allow pseudonymity for sexual assault plaintiffs, but rarely for defendants, though see this other case). Courts also might be able to threaten a plaintiff with dismissal of the case if she publicly identifies a pseudonymous defendant. And out-of-court allegations, generally unlike in-court filings, may themselves be subject to a libel lawsuit.
But I don't think that the First Amendment would allow a court to enjoin a party—plaintiff or defendant—from mentioning the other party in public, on pain of punishment for contempt of court. (A party might be barred from using information learned via legally compelled discovery, see Seattle Times Co. v. Rhinehart (1984), and that could include the name of a pseudonymous party; but here Doe knew Anonymous's name all along.)
In any event, this seems like an interesting case, so I thought I'd pass it along.
