The Volokh Conspiracy

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Free Speech

Pseudonymity and "Purely Legal" Challenges


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.