The Volokh Conspiracy

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

Free Speech

May College Students Sue Pseudonymously to Challenge Discipline for COVID Protocol Violations?

Another example of how badly split courts are on pseudonymity questions.

|

Yes, said Judge Sidney Stein last year in Doe v. NYU (S.D.N.Y.):

Most relevantly, the Court believes that in this action, "identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously."  Doe is 19 years old and in her first year of college, and though she of course made the decision to bring this lawsuit, the Court sees no reason to expose her to potential online retaliation for what some might characterize as reckless or selfish conduct. And, given her stated career goals, plaintiff represents that revealing her identity in a lawsuit pertaining to her violations of COVID-19 protocols could impede her progress.

The Court believes that NYU has sufficiently demonstrated the gravity of its COVID-19 disciplinary regime by forcefully litigating, and now prevailing on, Doe's challenge to its enforcement efforts. The equities here weigh in favor of maintaining Doe's anonymity.

No, said Magistrate Judge Mark Dinsmore yesterday in Doe v. Trustees of Indiana University (S.D. Ind.), expressly disagreeing with Doe v. NYU:

Plaintiff asks to proceed under a pseudonym "due to the nature of the allegations" in his Complaint and because he "is justifiably concerned about the potential irreparable harm that could further prevent him from proceeding with his future endeavors." Defendants object, arguing that this case does not present the kind of "exceptional circumstances" that justify anonymity….

Here, Plaintiff argues that pseudonymity is appropriate because "he would be required to disclose information that is highly sensitive and controversial in the present climate, depending on individual views," namely that he, "a fraternity member, is accused of violating COVID restrictions." He continues:

COVID is an extremely volatile issue in today's society with differing opinions as to the need for continued regulations. Every individual, institution, State and political party has differing views on the handling of COVID. Given the sensitive and novel nature of the subject matter, the need for anonymity and protection seems clear. Exposing Plaintiff to such societal differences and potential prejudices justifies the need to proceed anonymously, particularly given the constantly changing laws and CDC recommendations as discussed in more detail in the Complaint.

However, Plaintiff presents no concrete examples of the type of intimate information that revealing his identity would force him to disclose. This is especially clear given that Plaintiff does not dispute that he "and his four housemates, also members of his fraternity, hosted a social gathering in their private off-campus residence" on April 23, 2021, to which the Bloomington Police Department and Indiana University Police Department responded.

Indeed, it appears that Plaintiff would simply prefer not to attach his name to his admitted conduct. "No doubt lots of parties would prefer to keep their disputes private. For example, a plaintiff alleging he was discriminated against by his employer when his employment was terminated will have to disclose the employer's reason for terminating the plaintiff's employment—a reason that the plaintiff disputes is the real reason and which is often embarrassing or even damaging to his or her reputation. But there is no suggestion that such a plaintiff may proceed under a pseudonym to protect his or her reputation." …

Plaintiff argues that, "[i]f the Court requires Plaintiff to reveal his identity, even if he ultimately obtains a favorable verdict on his claims, his future academic and career prospects could be significantly affected, depending on the views of future employers and institutions." Specifically, Plaintiff asserts that he will suffer harm in the form of "emotional and reputational damages, economic injuries, the loss of educational and career opportunities and future earnings," and points to "the loss of employment by a big four accounting firm … and the loss of membership in a national fraternity."

Ultimately, "Plaintiff's concerns in this case are centered upon his economic well-being and possible embarrassment or humiliation, but courts have generally rejected attempts to proceed under fictitious names based solely on such concerns." A movant must show that his "specific circumstances demonstrate a risk of serious social stigmatization surpassing a general fear of embarrassment" for a court to consider such harms when deciding whether the movant should proceed anonymously. Plaintiff has not done so here.

Plaintiff additionally elaborates that his violation of COVID restrictions could "subject him to retaliation by students, student groups, and university administrators who are in favor of more restrictive regulations." It is true that "[t]he danger of retaliation is often a compelling ground for allowing a party to litigate anonymously." However, "[a] mere potential for retaliation, without more, is not enough to justify an extraordinary departure from public norms." "To demonstrate retaliatory harm, plaintiffs must generally provide 'evidence that psychological damage or violent threats are anticipated if a party's identify is disclosed.'" There is no such evidence here. Further, it is worth noting once more that Plaintiff does not dispute that he hosted the April 23, 2021, party; he is suing on the grounds that the University's subsequent proceedings deprived him of due process. As such, Plaintiff's arguments arising from COVID-based stigma are somewhat misplaced.

That said, another relevant factor is "whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." Here, if Plaintiff is successful in proving that Defendants' procedures violated his due process rights, there is a chance that "the revelation of the Plaintiff's identity [in the course of this lawsuit] 'would further exacerbate the emotional and reputational injuries he alleges.'" However, both the Purdue Univ. and Colgate Univ. cases dealt with sexual assault allegations, and the courts were concerned with the possibility of a college student being "marked for life as a sexual predator."

The same depth of concern is not necessarily present here; a student reprimanded for breaking COVID-19 protocols will not wear the same scarlet letter as a student reprimanded for sexual violence against another student. Ultimately, the potential harm identified by Plaintiff "pales in comparison to the types of harms that typically receive protection." While Plaintiff's desire to proceed under a pseudonym is understandable, his reasons "are not sufficient to overcome the strong presumption in favor of requiring parties to sue using their true names."

Accordingly, because Plaintiff has not provided sufficient evidence of concrete harms he will suffer if made to litigate under his real name, the third factor weighs AGAINST a grant of pseudonymity….

Plaintiff argues that, because "Defendants are already aware of Plaintiff's true identity," they will "not be prejudiced in any way by the use of a pseudonym." However, that is not necessarily true. Defendants argue that they "will be prejudiced at all phases of the litigation" if Plaintiff is allowed to proceed under a pseudonym. Defendants elaborate:

The Defendants may need to gain discovery from third-party witnesses, including depositions and document requests. It is complicated at best for Defendants to obtain third-party discovery pertaining to the Plaintiff if his name is anonymous. Defendants will also be prejudiced by being forced to refer to the Plaintiff by pseudonym at a jury trial. Courts have recognized, for example, that jurors could construe the court's permission for the plaintiff to conceal his true identity "as a subliminal comment on the harm the alleged encounter … has caused the plaintiff." Jurors could also interpret the fact that the Plaintiff, who remains anonymous, is more vulnerable and sympathetic than the Defendants who are individually named. The use of a pseudonym will have an unpredictable effect on a jury, which prejudices the Defendants.

These are valid concerns which, ultimately, are not outweighed by Plaintiff's asserted privacy rights….

[T]he Court will [also] consider "the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system." "Indeed, 'lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.'"

Plaintiff argues that "the public's interest in this matter would not be furthered by disclosing Plaintiff's identity." Critically, though, the disclosure of a plaintiff's identity is the standard which the public is entitled to; pseudonymity is only acceptable in "exceptional circumstances." As such, the public's interest in the longstanding notion of openness of federal proceedings would be hampered by allowing Plaintiff to use a fictitious name—especially here, where Plaintiff has failed to establish how his case constitutes an exceptional circumstance warranting anonymity….

In sum, Plaintiff has not established "a privacy right so substantial as to outweigh the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" Plaintiff, as the movant, has failed to meet his burden of "show[ing] that some combination of these factors outweighs the ordinary presumption of judicial openness, justifying the exercise of the Court's discretion." As a result, this case does not present the type of "exceptional circumstances" which warrant permitting Plaintiff to proceed under a pseudonym. Plaintiff "must step into the light and sue in the open, or not at all."

NEXT: Columbia University Professor Andreas Wimmer Questions "Race-Centrism"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Someone under 16 is a minor for essentially all purposes. Someone over 21 is unambiguously an acult. People between 16 and 21 are in a gray sone, where they are minors for some purposes, adults for others. What they are monors for and what adults varies considerably, and isn’t always perfectly rational. Does it make sense that 17 year olds can have sex and marry like adults can in many states but can’t vote, or 18 year olds can vote but not buy alcohol?

    So saying people under 21 should be treated as minors for purposes of pseudonymity is not inherently irrational. It is consistent with treating them as minors for various other purposes. And treating them as minors in some jurisdictions but adults in others isn’t inherently irrational either. There is widespread disagreement as to when people should be treated as adults for different purpises, and differnt laws in different jurisdictions in the face of disagreement is normal and appropriate in a federal system.

    1. I agree that the question of whether to treat 18 to 21 yrar olds as minors or adults for pseudonymity purposes should be decided consistently within each jurisdiction and should not be decided differently by each individual judge.

    2. It's a gray zone when it is convenient for some. Locally we have a 13 year old being charged as an adult for murder. The reason given is that there's no place in Juvenile Law that allows murder charges to be brought. Interesting.
      I'm not sure if it has changed, but, in 1982 when I went into the Navy, my Mother had to sign a form to permit the Navy to give me, my paycheck and not her. There was a law in Pennsylvania that gave her control over my income until I turned 21.
      A few months ago there were articles here on a Court stating that not being able to buy a handgun when the purchaser was between 18 and 21 violated the Second Amendment. I believe that ruling was rejected by a more Senior Court. I also believe that the USSC refused to hear the appeal because the people involved had turned 21 and were no longer affected by the law. It didn't matter that it took years to get the Case to it's current point or that others were effected by the Law.

      1. In the 19th century Massachusetts also had a law giving children's income to their parents (or father, at least). I don't know when it was repealed.

      2. You are very right that people under 16 can be treated as adults for some purposes, indeed very important one. But I think the idea that people from some point in their teens up to 21 are in a gray area ne where they are minors for some purposes, adults for others, is still relevant.

    3. If you're able to file a suit on your own behalf instead of having it filed on your behalf by a parent or guardian, then you shouldn't be able to rely on being a minor for pseudonymity.

  2. I'm with the magistrate. There's an enormous public interest in litigating any claims against COVID restrictions in full public view. And further, the stigma the plaintiff is claiming is basically that people think he did something grossly irresponsible. But since when is that a cognizable reason for litigating psuedonymously? Why can't a drunk driver say "I should get to bring my case challenging my license suspension psuedonymously, because you see, there's a huge stigma against drunk drivers"?

    You did something irresponsible, you are arguing that the courts should let you out of your irresponsibility, and you don't want to do it publicly? Sorry- this is the type of argument you should own publicly.

    Indeed, of all the cases that Prof. Volokh has posted on this topic, this may be the one that really convinces me that we need to crack down on psuedonyms in court.

    1. Dilan, this is a college campus. Given recent actions of political activists, I can see him being left bloody on the lawn one morning for "COVID Denial".

      Even your comparison, where you equate "COVID Protocol violations" with drunk driving, shows how terrible this has become. Many of these protocols are knowingly ineffective. Mask mandates are pointless for out of doors or indoors when there is prolonged contact. Curfews actively increase indoor exposure in a dormitory environment.

      1. That's ridiculous. If we lived in a society where plaintiffs were routinely facing violence for filing court cases, that would be one thing. But we don't. This is a completely phantom concern (and one that should be handled through police protection if necessary).

        And here's the point- this is an argument that he should have to own. If he wants to invoke government power to let him out of a COVID violation, he should have to stand up and let the world know what he did and why he thinks he should receive that bit of government grace. Stand up, have some courage, and do it in open court. Own the position.

        The fact that your fellow citizens may think you are a douche is not a sufficient justification to proceed anonymously.

        1. So here's a question for you Dilan,

          Let's say you had a relationship with someone. Professional at least, with an element of personal. You thought they were a decent person, good at their job, you'd go out to dinner on them or associate with them on occasion.

          Let's say you then learned that they had a lawsuit, and wanted to avoid taking the vaccine for religious reasons.

          Would that change your relationship with them? Would you perhaps think less of them? Not invite them to dinner? Think less of them professionally? Perhaps not recommend them for a job?

          1. Thing is, AL - social opprobrium doesn't seem like an exceptional circumstance.

          2. "Would that change your relationship with them? Would you perhaps think less of them? Not invite them to dinner? Think less of them professionally? Perhaps not recommend them for a job?"

            It might. That doesn't justify pseudonymous litigation. Not getting invited to dinner isn't the kind of exceptional circumstance you need to be able to circumvent the public requirements of the court. If you want to use the benefits of the court, you have to accept the drawbacks too, unless they're really extreme.

          3. Let's say you then learned that they had a lawsuit, and wanted to avoid taking the vaccine for religious reasons.

            Would that change your relationship with them? Would you perhaps think less of them? Not invite them to dinner? Think less of them professionally? Perhaps not recommend them for a job?

            It might well do so. (I mean, I definitely wouldn't invite them to dinner if they weren't vaccinated. As to the other questions, it depends on the facts.) So what? That's a consequence of this person's decision, not of the lawsuit.

        2. You're right -- we don't live in a society where plaintiffs face violence for court cases, we live in a society where saying "All Lives Matter" leaves people dead.

          Only a bad-faith idiot would set the threshold for concern at people "routinely" facing violence for filing court cases.

          1. Your invective is ridiculous, and yes, the threshold is very high, because the public nature of the court system and the importance of making people stand up and own their arguments is extremely important.

            We have a police department. Threats are terrible but we can handle them if we take them seriously. Our first reaction shouldn't be to do stuff behind closed doors.

        3. College students and administrators are violent dangerous vindictive people so it's best to keep quiet around them, fit in, and avoid filing lawsuits, or file a lawsuit anonymously.

      2. My current employer has stated that failure to comply with laws concerning COVID is a firing offense, even when the employee isn't at work.

        1. So what? That doesn't mean the courts should conspire with you to keep a secret from your work.

    2. I think the real argument here is that the plaintiffs should be treated as minors, not that everyone accused of COVID violations should get pseudonymity. The argument is being forced into a framework that doesn’t treat this as a relevant factor. But it seems to me this is the real reason.

      Because people under 21 are treated as minors for a variety of other purposes, it seems to me that it’s open to arguw they should be treated as minors for pseudonymity purposes. I don’t see that as really depending very much on the nature of the alleged offense.

      But perhaps it could be argued people between 18 and 21 should get intermediate treatment, pseudonymity for especially embarassing offenses, but not for others. If so then whether this is an especially embarassing offense is indeed relevant.

      I agree that judges should not be especially concerned for white college fraternity brother 19 year olds’ future, but not (let’s say) black high school dropout 19 year olds’ future.

      1. That's wrong though. If anything, outside of stuff like child abuse cases, we really shouldn't routinely grant psuedonymity to minors.

  3. Yeah, no. If you stand up, you're going to get noticed. Take the heat. It'll do you (and coincidentally, them) a lot of good. Doing something in name only is actually quite destructive to the soul.

Please to post comments