The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Media Allowed to Intervene to Oppose Pseudonymity in Maine Healthcare Facility Vaccination Mandate Challenge


Such intervention is routinely allowed when third parties (media or otherwise) intervene to oppose sealing, because the right of access to court records belongs to all members of the public, and can't be waived by the parties; intervention thus allows members of the public to secure their own rights. That logic applies equally to pseudonymity, but I've seen few cases on the subject, so this one is likely to be important. From today's decision by Chief Judge Jon Levy (D. Me.) in Does 1-6 v. Mills:

On September 2, 2021, I granted the Plaintiffs' motion to proceed pseudonymously in this case. In that order, I reserved the authority to revisit the issue in the event the case proceeded beyond the preliminary injunction stage. More recently, two media companies—MTM Acquisition, Inc., d/b/a Portland Press Herald/Maine Sunday Telegram, Kennebec Journal, and Morning Sentinel, and SJ Acquisition, Inc., d/b/a Sun Journal (the "Media Intervenors")—have moved to intervene … for the limited purpose of challenging the Plaintiffs' ongoing use of pseudonyms….

Intervention "is an effective mechanism for third-party claims of access to information generated through judicial proceedings." Courts have discretion to allow permissive intervention pursuant to Federal Rule of Civil Procedure 24(b) upon a timely showing that the "putative intervenor 'has a claim or defense that shares with the main action a common question of law or fact.'" When the party moving to intervene does so for a limited purpose and does not seek to become a party to the litigation, the nexus-of-fact-or- law requirement is loosened, and "[s]pecificity, e.g., that the intervenors' claim involve the same legal theory that was raised in the main action, is not required." Instead, if a party seeks "to intervene in a case for the limited purpose of unsealing judicial records, most circuits have found that "there is no reason to require such a strong nexus of fact or law." …

Pseudonymous proceedings in federal court are generally disfavored because "'[t]here is a strong common law presumption favoring public access to judicial proceedings and records.'" This Court has additionally recognized "a qualified First Amendment right of public access to civil complaints." …

The Media Intervenors' motion is timely. The preliminary injunction phase of this proceeding has concluded, and the Media Intervenors seek to intervene for the limited purpose of challenging the continued use of pseudonyms. If pseudonymity continues, measures to restrict the public's access to information would be necessary, including sealing and redacting records and closing testimonial proceedings. Accordingly, the circumstances of the litigation have changed such that the motion has been timely brought…. Further, the Media Intervenors promptly brought their motion upon the conclusion of the preliminary injunction proceedings….

The Plaintiffs also contend that allowing intervention will create undue delay and unfairly prejudice them because they are committed to filing an interlocutory appeal to challenge intervention if the Media Intervenors' motion is granted, which will result in further delay. Although an interlocutory appeal will no doubt extend the life of this litigation, that extension is neither undue nor unfairly prejudicial to the Plaintiffs' interests. It is the Plaintiffs, and not the Court, who will determine whether the added time and expense associated with an interlocutory appeal furthers their interests and is warranted.

The Plaintiffs also argue that the motion should be denied because the Media Intervenors seek to challenge an issue not currently contested by either party. This argument fails to account for the added factor that on a motion for permissive intervention, courts consider "whether the 'putative intervenor's interest is adequately represented by an existing party.'" Because the Media Intervenors seek to vindicate their and the public's common law and First Amendment rights of access to judicial proceedings, and that interest is not currently represented by any of the parties, this consideration weighs in favor of granting, not denying, intervention….