The Volokh Conspiracy

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

Right of Access

She Who Seeks Pseudonymity Must Provide Pseudonymity

Or, to be precise, her lawyers must do so.


From today's decision by Judge Elizabeth Dillon (W.D. Va.) in Doe v. Virginia Polytechnic Inst.:

Jane Doe was enrolled as an undergraduate student at Virginia Tech, where she met another student, Jill Roe. Doe and Roe began a dating relationship. Over the next few weeks, Doe and Roe went on multiple dates and spent a substantial amount of time together. In September 2020, after a night out, Roe asked Doe to spend the night at her apartment where the two engaged in sexual activity.

The next day, Roe accused Doe of taking advantage of her. Roe then filed a complaint with the Virginia Tech Office of Equity and Accessibility, alleging that Doe sexually assaulted her at an off-campus apartment after a night out drinking. An investigator with the university, Kristin Barnett, investigated Roe's complaint.

During the investigation, Barnett opened a second case against Doe involving a claim by Doe's freshman roommate, Joy Smith. Smith alleged that, during the prior year, she and Doe had a sexual relationship and Doe engaged in nonconsensual sexual activity with Smith. Smith became acquainted with Roe, and she filed her complaint against Doe shortly after Roe filed her own complaint against Doe….

On January 20, 2021, Doe received a letter from McCrery and Sloan stating that they found Doe responsible for violating Virginia Tech's policies on rape and sexual battery, and not responsible for assault or stalking. In addition, Doe was dismissed from the university…. Doe filed suit against Virginia Tech [and Virginia Tech officials] alleging that they violated: (1) the Due Process Clause of the Fourteenth Amendment; and (2) Title IX. Specifically, Doe argues that Virginia Tech should have adjudicated Roe and Smith's allegations separately and should have applied the Title IX procedures to the adjudication. In addition, Doe claims that "Virginia Tech's decision to render the harshest available sanction against Ms. Doe—expulsion—is significantly harsher than comparably similar student conduct cases involving male students accused of sexual assault involving heterosexual activity at Virginia Tech, who were on average suspended, but not expelled.["]

The question then turned to whether Doe could proceed pseudonymously, and the court said no:

Recently, in Doe v. Virginia Polytechnic Inst. & State Univ., the undersigned held that a student may proceed under a pseudonym where he sued Virginia Tech for violations of his due process rights related to the university's investigation of allegations of dating-related violence against him. Id. The court reasoned that the litigation was "'a matter of sensitive and highly personal nature' because [the plaintiff was] an accused perpetrator of domestic violence."

"Like sexual misconduct, allegations of domestic violence or abusive dating relationships involve sensitive and highly personal facts that can invite harassment and ridicule." [See] Doe v. The Rector & Visitors of George Mason Univ. (E.D. Va. 2016) ("There can be no doubt that the litigation here focuses on a matter of sensitive and highly personal nature. Plaintiff has been accused of sexual misconduct, the mere accusation of which, if disclosed, can invite harassment and ridicule.")…. In addition, the court noted that "Doe's identification may put him at risk for physical or mental harm by persons who know that he has been found responsible for domestic violence" and anonymity would not prejudice Virginia Tech because the university already knew Doe's identity.

Here, and unlike the case discussed above, … plaintiff … is not seeking to preserve her own privacy in any legitimate way. Instead, she seeks privacy while naming two non-parties—one is named approximately 91 times and the other approximately 36 times—who assert that they are plaintiff's victims. Moreover, plaintiff imbedded photographs of herself and one of the non-parties in the complaint.

As this court has stated previously, "… the trial court must 'carefully review all the circumstances of [the] case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns.'" Given the fact that plaintiff decided to name others repeatedly and include photographs of herself and another, the court cannot, and does not, find that her motion to proceed under a pseudonym is genuinely for the purpose of preserving her privacy or avoiding retaliatory harm….

The court went on to grant Virginia Tech's motion to (in effect) redact the accusers' names from the Complaint and other papers:

The third parties are named in a highly sensitive and personal matter; they did not voluntarily disclose their identities by including photographs of themselves in any pleading; there is a risk of harm to them as non-parties by being known as persons who asserted that they were victims of sexual violence; they have an interest in not having their sexual orientations publicized without their consent; they were college students at the time; and defendants are not prejudiced as they know the identities of the third parties. Accordingly, the court will grant the third-party motion to seal.

See also Doe v. Kidd, 19 Misc. 3d 782, 789 (N.Y. Sup. Ct. 2008) (denying pseudonymity to a plaintiff alleging sexual assault, partly on the grounds that "in response to news reporters' queries, plaintiff's representatives reasserted the allegations in the complaint, and openly identified and criticized the defendant, thereby sensationalizing this case even more").

Conversely, some (but far from all) courts that have considered such matters when alleged sexual assault victims sue the alleged assaulters, some courts have concluded that the fair solution is to allow both parties to be pseudonymous: "[I]f the plaintiff is allowed to proceed anonymously, … it would serve the interests of justice for the defendant to be able to do so as well, so that the parties are on equal footing as they litigate their respective claims and defenses." Doe v. Doe, No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020); see also Doe v. Am. Fed. of Gov't Employees, No. 1:20-cv-01558-JDB, at 6 n.2 (D.D.C. June 19, 2020); Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001); Doe v. Doe, No. CV146015861S, 2014 WL 4056717 (Conn. Super. Ct. Ansonia-Milford Dist.); Doe v. Anonymous #1, No. 520605/‌‌2020E (N.Y. Sup. Ct. Kings Cty. Feb. 24, 2021); Doe v. Moravian College, No. 5:20-cv-00377-JMG, at 2 n.2 (E.D. Pa. Jan. 11, 2021); Doe v. Smith, 105 F. Supp. 2d 40, 44 (E.D.N.Y. 1999); Doe v. Tenzin Masselli, No. MMXCV145008325, 2014 WL 6462077, *2 (Conn. Super. Ct. Oct. 15, 2014) (leaving open the door to Doe v. Roe lawsuits in some such cases); Bike v. Sollene, No. CV126027065S, 2012 WL 5476887, *2 (Conn. Super. Ct. Oct. 15, 2012) (discussing some Connecticut cases where pseudonymity was allowed to such defendants). I'm not saying this to endorse categorical mutual pseudonymity in such cases, but to note the tendency  in some cases to favor treating the parties equally with regard to pseudonymity—and, as we see in this case, to bristle at plaintiffs who seek pseudonymity for them but not for their adversaries.

Thanks to Prof. KC Johnson for the pointer.

NEXT: January 6 and the Problem of Political Ignorance

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 or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. In addition, Doe claims that "Virginia Tech's decision to render the harshest available sanction against Ms. Doe—expulsion—is significantly harsher than comparably similar student conduct cases involving male students accused of sexual assault involving heterosexual activity at Virginia Tech, who were on average suspended, but not expelled

    Interesting claim. I wonder if it's true ?

    1. It has to be true-ish, pretty much by virtue of her getting the worst outcome. With more heterosexual cases than her single case all you need is one that wasn't expelled to make the "average" nicer than her outcome.

  2. Eugene Volokh is a sadistic, unethical liar of the highest order. He gets paid by Google so that's why he's purposely ignores the pain to victims of these crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money.

    If you look through these forums, many others have called out Eugene's hypocritical analysis. The sadistic guy (EV) seems to take extreme pleasure in people getting their lives destroyed by harassers online and coming out and defending the harassers while leaving the victims to hang. He takes pleasure when people lose their jobs and livelihoods over doxing. He takes pleasure when plaintiffs cannot file suits using a pseudonym even when they are doing so to protect being re-victimized by the court system. He does not ever talk about how malicious the perpetrators are - they use VPN to hide their own privacy while purposefully, intentionally trying to destroy the lives of innocent victims. He never talks about whether it's fair or not for perpetrators to be able to hide behind "Free Speech" while all the friction to justice in the legal system fall on innocent victims. He never talks about how Section 230 has enabled intermediaries to contribute to the abuse by not removing harmful content in time. He never talks about the suicides that come with cyberharassment and bullying and how victims cannot ever get away from the tormentors. He doesn't give a shit, that's why he's a psychopathic asshole. Most people who take an absolutist view on the 1A have low empathy for people's sufferings, and are obsessed with defending the rights of a bunch of pervs, assholes, psychos, and low-life criminals of society who do not deserve defending and should be punished (fines or jail or both). Bad people deserve to be punished, but Eugene is advocating to punish the good people instead. Eugene Volokh is a grade A sadistic liar and a borderline psychopath based on his behaviour. He enjoys seeing people in pain and then coming out with his BS "Free Speech" arguments to make victims suffer more. You can see it in his eyes, he loves to destroy people using the "Free Speech" shield.

    Eugene Volokh's approach would give victims of malicious targeted online harassment no legal recourse, even if their lives have been turned upside down by the malicious stalking or harassment from these individuals, and the speech does not implicate public interests and are purely aimed to harm the victims. For Eugene, Free Speech trumps all - deaths, suicides, victims be damned.

    Volokh purposefully ignores talking about the huge impact to the lives of victims of cyberharassers who target these people for years because the harasser has a mental issue. The reality is that Free Speech should be balanced with safety and appropriate privacy for citizens online, otherwise it's been weaponized by sick and sadistic bastards and criminals, and Eugene is fighting hard for these sadistic bastards and criminals to keep harming people. Eugene has never given two shits about the victims of cyber-harassment, never in any of his papers does he even consider the unique nature of the internet and the ability for malicious actors to ruin private individuals who are not in the public eye. Eugene Volokh has opposed laws banning doxing, revenge porn, Section 230 reform, etc... anything that would put more legal responsibility on platforms, ISPs, and intermediaries to make their products safer for people and to balance Free Speech with privacy.

    That's what's wrong with the USA today, it's maniacal focus on Free Speech to the extent of allowing social harms is what will destroy this country. All the countries around the world like EU, UK, Hong Kong, Australia, NZ, Canada, Brazil, Argentina are all passing legislation to criminalize doxing, online stalking, online harassment as it should, as these are crimes against human dignity. Is the right to be "free from harassment" not a fundamental right? Eugene doesn't think so. He fights for criminals to continue harming people online. Eugene is a threat to the American public.

    1. The reality is that Free Speech should be balanced


      1. Says who? You, fucker? A country is choosing violence over civility won't hold up for long.

      2. David Nieporent sadistic POS who supports a lawless and uncivil society.

  3. To Volokh and his supporters who encourage cybercrimes to continue:

    This is the regime to combat harmful online harassment that the USA needs to be set up, ASAP:

    1. Congress needs to pass federal personal data protection laws that criminalize malicious doxing and cyberstalking on a federal level, giving uniformity across state lines.

    2. Congress needs to reform Section 230 to remove ISP immunity from liability if they are notified of cyberstalking, doxing content, and malicious cyberharassment targeting individuals for no legitimate purpose, and impose fines for ISPs and networks that do not remove within a period of time. Fine Google/Facebook say USD 1000 per day if the content remains up and they do not remove.

    3. Institute "notice-and-takedown" mechanism for cyberstalking, cyberharassment, doxing content similar to DMCA for Copyright. The poster can appeal but he needs to reveal his identity and location (similar to DMCA), which would allow victims to sue him if necessary.

    4. Update specific jurisdiction requirements to allow victim of online harassment and stalking to sue from their own state rather than spending exorbitant resources to find out the location of the defendant, who may be out of the country.

    5. If anonymous defendant is found to be using VPN, the plaintiff gets default judgment unless defendant comes out, reveals his identity, to fight the charges.

    6. Establish uniform rule to allow victims of cyber-harassment and cyberstalking to file civil and criminal lawsuits using pseudonym to protect them from re-victimization.

    7. Establish local, state, and federal cyber-investigation cells to investigate reported online crimes rather than ignoring these harms.

    8. Establish a Federal court specifically designed to fight against cyber crimes, with limited jurisdictional and uniformity of application issues.

    We need ROBUST laws in the 21st century that balance Freedom of Expression with curbing online harms. Online harassment will not go away, no matter how hard Eugene Volokh tries to deny it. History will prove him wrong.

    To hell with unrestricted, expansive, dangerously broad "Free Speech" interpretations. The rights of a psycho or mentally ill, malicious harasser to harass, torment others takes a back seat to the rights of the victims to be free from this abuse. See Canada's new "tort of internet harassment." America is falling behind by miles.

    1. I disagree with your assessment of EV's motives, but I do tend to worry about what can be done to protect individual victims of harassment, bullying, etc. (online or otherwise).

      I wonder if perhaps the solution could be to distinguish between free speech about general ideas/concepts vs. about specific individuals. We do need to remain absolutist about expression of *ideas* because otherwise the slippery slope becomes untenable (as the Supreme Court has unanimously reaffirmed). But at the same time, first-amendment "exceptions" are generally about when it gets *specific* to particular individuals (e.g. defamation, fighting words). So if we can protect people from being slandered or provoked while keeping our 1A absolutism on viewpoint neutrality, then surely we can also do the same for bullying and the like...?

  4. "...sexually assaulted her at an off-campus apartment."

    The pseudonymity aspect of this incident only highlights the petty, 1st world problems between two whiney adults who obviously cannot hold their liquor amid all their other debauchery.

    1) Why does the university have any jurisdiction regarding criminal activity off-campus?
    2) Why does the university have any jurisdiction regarding criminal activity? Period.
    3) Without a police report, and court judgement, this is all merely she said/she said.
    4) Make sodomy illegal again, and stop wasting the world's time.

Please to post comments