The Volokh Conspiracy
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Two cases filed last week illustrate this controversy. In one, Doe v. Underwood, the plaintiff is a producer of a Web soap opera that had gotten a Daytime Emmy nomination for one member of its cast and an Indie Series Award nomination for another. But, then, according to the Complaint,
In February 2016, SAG revoked John Doe's SAG Signatory Status as a producer. As a result, John Doe could not produce additional episodes for the Series for a new season with SAG actors. John Doe, who is a SAG actor, and was the star of the Series, could not appear in the Series. Not until August of 2021, over 5 years later, was John Doe able to regain his SAG Signatory Status as a producer.
The reason for the SAG revocation was false statements from the Defendants. All the Defendants made false complaints to SAG that the Series set was unsafe, and that John Doe's behavior was unprofessional. In particular Defendants claimed that Plaintiff John Doe was a sexual predator, a sexual harasser, purveyor of pornographic material, a rapist, threatened cast member's families, and was verbally abusive in person and abusive in electronic communications, text messages and e-mails.
Plaintiff seeks damages and an order that "Defendants retract in writing their Defamatory Statements."
In the other, Doe v. Sebrow, the plaintiff is "a prominent financial advisor" who had been romantically involved with a widow who was "a well-known media personality in Jewish media, and … a professional matchmaker, with her emphasis in Orthodox Jewish dating and relationships." After the relationship ended, he claims, she orchestrated an Internet libel campaign that alleged that he "is a 'date rapist,' has date raped 100 women, has violated his own daughter, and in general is a very bad and evil man." Plaintiff seeks damages and an order
preliminarily and permanently restraining Ms. Sebrow from any postings or media dissemination to any form of social media, or print media, or electronic or air media, including but not limited to Facebook, Instagram, google apps, The Jewish Press, or Ms. Sebrow's blog(s).
(I don't know whether this latter request was intentionally this broad, or was meant just to bar Ms. Sebrow from writing about the plaintiff in the media; but even such a narrower request would be unconstitutional, because it would cover all posts about the plaintiff and not just libelous posts.)
I had also appeared this Fall on behalf of the First Amendment Coalition to oppose pseudonymity in Doe v. Billington, another such case in Los Angeles Superior Court, but the court there dismissed the claim on substantive grounds and didn't reach the pseudonymity question; and the defendant in any event identified the plaintiff in court filings—the plaintiff hadn't gotten leave to proceed pseudonymously, and there was certainly no court order limiting how the defendant could refer to the plaintiff—so the matter became largely academic.
Now of course it's clear why plaintiffs would want to sue pseudonymously in such situations: Suing under their own names would further connect them with the defamatory statements, even if in stories that say that they are denying those statements. (That's the famous "Streisand effect," which can operate as to meritorious legal claims as well as to bogus ones.) Moreover, requiring plaintiffs to litigate in their own names seems likely to deter meritorious claims (again, as well as the meritless ones). Defamation law exists for good reason, or so at least the legal system believes; publicly identifying defamation plaintiffs causes defamation law to be underenforced.
At the same time, our legal system generally calls for open court records, including the parties' names, because the right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and "promotes the institutional integrity of the Judicial Branch." "Public confidence [in the judiciary] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view." (The quotes here are all from court cases; for citations, see here.)
And that, courts have concluded, extends to party names as well: "[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among the facts is the identity of the parties. We think that as a matter of policy the identity of the parties to a lawsuit should not be concealed except in the unusual case." "[A]nonymous litigation runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." "The Court is a public institution and the public has a right to look over our shoulders and see who is seeking relief in public court."
Indeed, if members of the public—such as journalists—are to monitor what is happening in court, the names of the parties are often key to investigating the case further, for instance to answer:
- Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases, or a vexatious litigant?
- Is there evidence that the litigant is untrustworthy, perhaps in past cases, or in past news reports?
- Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers?
- Was the incident that led to the lawsuit covered or investigated in some other context?
- Is there online chatter from possibly knowledgeable people about the underlying incident?
- Is there some reason to think that the judge might be biased in favor of or against the litigant?
Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around—the parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified.
And litigation of course deploys the coercive power of the state, even as it also accomplishes private goals. A libel lawsuit, even between two private parties, is aimed at penalizing (and, as in these two cases, either enjoining or compelling) speech. In the words of Justice Holmes, writing about the fair report privilege,
It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
Pseudonymity also often leads to sealing or heavy redaction, as courts try to make the pseudonymity stick. If allegedly libelous material remains available online at the time, then a simple Google search will often uncover the full statement, which would include the party's name. Any attempt to prevent that would require much more massive redaction or sealing of the alleged libel—which may in turn make it much harder to understand the legal issues of the case. And for the same reason, pseudonymous litigation also often leads to gag orders against defendants, ordering them not to publicly identify the plaintiff even outside the litigation process.
And that's particularly a problem given that in most such cases—including these two—the defendants are publicly named, so that the lawsuit can potentially damage their reputations even as the plaintiffs' pseudonymity is aimed at protecting the plaintiffs' reputations. Courts often object to that, e.g.:
[F]undamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity. C.D. actively has pursued this lawsuit—including by recruiting his co-plaintiff. He seeks over $40 million in damages. He makes serious charges and, as a result, has put his credibility in issue. Fairness requires that he be prepared to stand behind his charges publicly.
Or, in a case where the plaintiff accused defendant of having distributed revenge porn of plaintiff:
[Plaintiff] has denied [defendant] Smith the shelter of anonymity—yet it is Smith, and not the plaintiff, who faces disgrace if the complaint's allegations can be substantiated. And if the complaint's allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.
That is especially so because a plaintiff's pseudonymity may also make it hard for the defendant to defend itself in public:
The defendants … have a powerful interest in being able to respond publicly to defend their reputations [against plaintiff's allegations] … in … situations where the claims in the lawsuit may be of interest to those with whom the defendants have business or other dealings.
Part of that defense will ordinarily include direct challenges to the plaintiff's credibility, which may well be affected by the facts plaintiff prefers to keep secret here: his history of mental health problems and his history of substance abuse. Those may be sensitive subjects, but they are at the heart of plaintiff's credibility in making the serious accusations he has made here. He cannot use his privacy interests as a shelter from which he can safely hurl these accusations without subjecting himself to public scrutiny, even if that public scrutiny includes scorn and criticism.
Moreover, allowing one side to be pseudonymous can change the settlement value of the case. Courts recognize this, and sometimes give it as a justification against pseudonymity: "[S]ome cases suggest that a court should consider whether allowing a party to proceed under a pseudonym will create an imbalance in settlement negotiating positions."
Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations: While a publicly accused defendant might be eager to settle in order to get its name out of the public eye, a pseudonymous plaintiff might hold out for a larger settlement because they face no such reputational risk… . Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage [and cause significant prejudice], particularly when it comes to settlement leverage.
Of course, one can also say that the non-pseudonymity default itself causes improper settlement leverage, which pseudonymity might solve. Say, for instance, that David Defendant is in a field where even the accusation (however unfounded) of some misconduct would mean massive financial cost. Paul Plaintiff's threatening to file a Paul v. David lawsuit might thus yield an unfairly inflated settlement compared to Paul v. Doe (where David could defend himself on the merits, and perhaps win without the allegations being disclosed) or even compared to a fully pseudonymous Poe v. Doe (since pseudonymity wouldn't help Paul much).
Conversely, say Polly Plaintiff wants to sue Donna Defendant for discrimination based on Polly's mental illness, but is reasonably fearful that disclosing the mental illness would ruin her future employment prospects. In pre-filing negotiations, Donna (who might not worry too much about publicity related to allegations that she discriminated) may know that Paula dreads the publicity, and may be able to settle the case for a pittance, even if Paula has a solid case on the law. Paula's being able to file a Poe v. Donna lawsuit or even a Poe v. Doe lawsuit would then yield a likely settlement value that's more in line with the expected value of the case at trial.
It's not clear in general, then, whether non-pseudonymous litigation yields fairer settlement values than pseudonymous litigation. But it seems clear that pseudonymity can change settlement values in many cases, whether for better or fore worse. And pseudonymity can cause other practical problems as well, especially when the case comes to trial or even when the defendants seek to investigate the matter and have to reveal the plaintiff's names to potential witnesses.
In any event, these are the matters that courts have been considering in deciding whether to allow such pseudonymity generally—and they are increasingly considering it in libel cases and in particular in #TheyLied cases brought over allegedly libelous accusations of sexual misconduct. So far, the few cases that have expressly considered requests for pseudonymity in libel cases have rejected them: See Doe v. Bogan (D.D.C. 2021); Doe v. Washington Post Co. (D.D.C. 2019).
On the other hand, in lawsuits by university students who claim that they were wrongly expelled for alleged sexual misconduct, many (though not all) courts have allowed pseudonymity—even though those claims also stem from allegedly false accusations and also aim to repair the reputational and economic damage cause by those accusations. There seems to be some interest among judges in protecting such plaintiffs from the second (and often much more massive) reputational hit that would happen if they publicly sued over something that had earlier been at least in some measure kept private.
And of course many (though again not all) courts have allowed #MeToo plaintiffs who affirmatively bring forward sexual assault claims to litigate pseudonymously. Perhaps the fairer solution would be to allow both the accusers and the accused to be pseudonymous, regardless of whether the accusation is of sexual assault or of false claims of sexual assault—though of course that would make the cases still more opaque, and still harder for the public and for the media to monitor.
In any case, I thought I'd flag these incidents, as illustrations of what seems to me a broader trend. And if you'd like to know more about the law of pseudonymous litigation, uncertain and conflicted as it may be, you can have a look at my draft article on the subject.
Note that in both these cases the decision to be pseudonymous came rather late—both plaintiffs had filed earlier nonpseudonymous cases apparently stemming from the incidents discussed in the Complaints, and some quick online research (albeit more complicated than just Googling) will uncover the plaintiffs' likely identities. But one can imagine future such cases in which the plaintiffs and their lawyers were more careful.