Free Speech

Pseudonymity and "Purely Legal" Challenges

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A careful reader of the Dr. A. v. Hochul post—especially one who has been reading various other recent posts on how pseudonymous litigation is usually not allowed—might have asked: What's with Dr. A, as well as Nurse D., Therapist I., Technologist P., and Physician Liaison X? How do they get to litigate pseudonymously? Though the court noted that defendants didn't oppose the motion for pseudonymity, pseudonymity is generally frowned on even when the opposing party agrees; pseudonymity interferes with the public's right to access information about a case, and not just the opposing party's rights.

But "usually not allowed" isn't "never allowed." There are some fairly well-settled areas where pseudonymity is often allowed. The clearest example is likely the names of underage parties; the Federal Rules of Civil Procedure, for instance, expressly call for them to be pseudonymized. People suing alleging that they have been sexually assaulted are often—though not always—allowed to proceed anonymously, too. (I'm writing an article on the subject now, and hope to serialize it early next month, so you'll get to see much more about this then.)

And one particular category, is cases where "because of the purely legal nature of the issues presented …, there is an atypically weak public interest in knowing the litigants' identities." (That's from the Second Circuit's leading pseudonymity case, fittingly titled Sealed Plaintiff v. Sealed Defendant; the Dr. A decision was from a federal district court in the Second Circuit.) Or, to quote Publius v. Boyer-Vine (where I was one of the lawyers representing the pseudonymous Publius),

[U]nmasking Publius at this time would deprive him of his First Amendment right to anonymous political speech …. [And] the fact that Defendant is a government entity tips the balance in Plaintiffs' favor because of the nature of this case—a legal challenge to the constitutionality of a California statute as applied to the content of Publius' speech [citing Sealed Plaintiff]…. [A]t this stage of the proceedings, the Court finds that the public's interest in this case would be best served by permitting Publius to proceed anonymously.

Presumably the district judge thought something similar here (though likely with regard to medical privacy rights rather than the anonymous speech rights involved in Publius).

To be sure, even in some purely legal challenges, a plaintiff's identity might be relevant to some collateral issues, such as whether the plaintiff has standing to raise the challenge); and sometimes courts might deny pseudonymity on these grounds. And, as the quote from Publius shows, even when a plaintiff is mounting a legal challenge, pseudonymity isn't automatic. Nonetheless, this helps explain why pseudonymity is more likely to be available in such cases than in regular fact-heavy cases, where the party's identity is likely to be highly relevant to the factual dispute. (We've seen that, though without extended discussion, in Supreme Court cases such as Roe v. WadeDoe v. Reed, Santa Fe Indep. School Dist. v. Doe, Plyer v. Doe, and more.)

Here, by the way, is the plaintiffs' argument in favor of pseudonymity, which strikes me as somewhat overstated, but does include the key points:

Although F.R.C.P. Rule 10(a) generally requires the title of the Complaint to name all parties, the Second Circuit recognizes plaintiffs' rights to proceed pseudonymously when their interest in anonymity outweighs "the public's interest in disclosure and any prejudice to the defendant." Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008). The Second Circuit has adopted a non-exclusive multi-factor balancing test to resolve this question, and Plaintiffs easily meet at least the following factors:

  • The litigation involves matters that are "highly sensitive and of a personal nature" because Plaintiffs would otherwise be disclosing to the entire public their personal medical information, including vaccination status, breastfeeding, intended pregnancy, COVID-infection and recovery, in a climate especially hostile to those who are forgoing the COVID vaccines.
  • Identification poses a substantial "risk of retaliatory physical or mental harm" to Plaintiffs given the explicit death threats and "terrorist" labels being hurled at those who are forgoing the vaccines. (See, e.g., Cmplt., Ex. C (online commentator stating about those attending a vaccine-mandate protest: "The anti-vaxers are ignorant trash and don't deserve to live. Gun them down while they're all in one place and let God sort it out.")).
  • Plaintiffs are "particularly vulnerable" to these possible consequences because of the topdown cultural, societal, and legal assault currently underway against those who forgo the vaccines. Nowhere is this more apparent than in the speech by President Biden on September 9, 2021, wherein the nation's Chief Executive brings down opprobrium on the heads of Americans who decline vaccination: "We've been patient, but our patience is wearing thin, and the refusal has cost all of us…." (emphasis added) Absent anonymity, Plaintiffs would be identified as members of the public who, according to the sitting leader of the free world, are "cost[ing] all of us."
  • Plaintiffs are challenging the validity of government, not private, activity and would be admitting to designs to otherwise engage in prohibited conduct in a context where that conduct is being demonized by virtually every organ of mainstream public opinion, comedians, talks show hosts, and the President himself. See, Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe (5th Cir. 1979).
  • The defendants are not prejudiced by allowing Plaintiffs to sue anonymously, and "there is an atypically weak public interest in knowing the litigants' identities," because this case involves "purely legal" issues focusing almost exclusively on whether the Vaccine Mandate disrupts the fundamental project of our Founding Fathers by flipping the Supremacy Clause on its head and taking a sledge hammer to the Free Exercise Clause.

NEXT: Today in Supreme Court History: October 13, 1890

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  1. “And one particular category, is cases where “because of the purely legal nature of the issues presented …, there is an atypically weak public interest in knowing the litigants’ identities.’”

    Woah what? That seems completely backwards.

    In highly fact specific cases based on long settled law, let’s say a trip and fall or a employment discrimination case, there seems to be a very weak public interest in knowing the minutiae of the parties’ lives, like how often they’re in that produce aisle of the store or how they feel about their co-workers etc, or whatever else is going to be revealed in case documents.

    But if there are only “purely legal” issues, particularly in interests of great public importance, like whether we should have vaccine mandates, the public interest in knowing who brings the case strikes me as far greater. The parties are involved in something that might change the law for millions of people and greatly affect public policy. There is a high public interest in knowing who they are.

    1. A purely legal challenge rests approximately entirely on legal questions that are rather divorced from the person bringing the suit. A fact-based claim depends very much on the facts related to the specific parties.

      A court hardly needs to know who brings a facial challenge against a statute, but does need to know whether John Doe was present, and fell, at a business he claims is responsible for trip-and-fall damages.

      1. “A court hardly needs to know who brings a facial challenge against a statute.”

        Maybe not, but the public sure should. If you’re asking to change the law for millions of people for all time, you should put your name on it. Saying otherwise makes a complete mockery of the concept of public access to judicial proceedings and further shrouds the law in mystery.

        “But does need to know whether John Doe was present, and fell, at a business he claims is responsible for trip-and-fall damages.”

        Actually they don’t. The actual names of the people involved are not very relevant to the court, except for screening out conflicts, since they appear random to the court anyway. And even if the court does need to know, the names are are even less relevant to the public, which is what this is actually about. Again, the issue isn’t whether a court knows… it’s whether the public does.

        1. Why does the public have an interest in knowing who filed a purely legal argument? So they can blacklist that person, or smear them in public, or harass them at home, or make ad hominem arguments about the case? The argument should stand or fall on purely legal grounds, independent of the complainant.

          The situation is different for fact-based claims, where both the public and other litigants have an interest in knowing the identities of those involved. For example, different arguments would be considered for a serial slip-and-fall plaintiff than for someone who has no such history, and a shopkeeper might closely supervise such a patron.

          1. The same reason the public has an interest in knowing who lobbies their congressperson. They are trying to change the law. Keeping that secret is anathema to an open society.

            So they can blacklist that person, or smear them in public, or harass them at home, or make ad hominem arguments about the case? The argument should stand or fall on purely legal grounds, independent of the complainant.

            You jump right to a parade of horribles about blacklisting and harassments, but what about criticism? Why should they escape that. Why should they escape social consequences for bringing a case? Would you like to associate with a person trying to get rid of some of your cherished rights for instance?

            Again, it sounds like you want immense power with zero responsibility or accountability to the public.

            “For example, different arguments would be considered for a serial slip-and-fall plaintiff than for someone who has no such history, and a shopkeeper might closely supervise such a patron.”

            1) the lawyers can determine that in discovery.

            2) No shopkeeper is docket hunting to find serial plaintiffs, that is insane.

            1. In an ordinary lawsuit, the identity of the litigant matters because it determines whether his or her claims have merit. One cannot evaluate the facts of a case without access to all the facts. We can’t determine whether Eugene Volokh is entitled to recover money from WalMart for selling him a defective toaster without knowing whether Eugene Volokh bought a defective toaster from WalMart, which we can’t do without knowing who Eugene Volokh is.

              But in a facial challenge to a law, the case in no way turns on the identity of the litigant. Knowing that Jane Roe was Norma McCorvey provides no information relevant to considering or resolving the issue in the case of whether there is a constitutional right to terminate a pregnancy.

              1. None of that has anything to do with wider public knowledge though…which is the entire point I’m making. The defective toaster case caption can be E.V. v. W.M. so long as the lawyers know who is involved and present the case as to whether E.V. (who eventually will have to testify) was actually at W.M.

                Norma McCovey was trying to change Texas law and wanted to be hidden. She probably had some good reasons, but you can say that about anyone and everyone. And indeed, she didn’t remain hidden for very long anyway.

                Look I just think if you’re going to try and change the law for everyone you should put your name on it. A lot of people don’t get the choice as I’ve said in another thread on this subject. People who have experienced grievous and personally embarrassing wrongs done to them can’t always go by pseudonyms.

  2. Prof. Volokh’s repeatedly expressed, forceful objection to pseudonymity among litigants finally yields — predictably — when the litigant is a gun-obsessed movement conservative.

  3. As much as I don’t like these plaintiffs, and I really don’t like the legal culture that treats exemptions from one’s obligations to society as things to be handed out like candy to anyone who claims a religious belief, no matter how insincerely, I can understand why such claimants might face real harassment. So psuedonymity seems reasonable here.

    1. ” I really don’t like the legal culture that treats exemptions from one’s obligations to society as things to be handed out like candy to anyone who claims a religious belief ”

      There is some good news along that front.

      I make it 10 years or so.

      (Roxanne begins at roughly 40 minutes)

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