The Volokh Conspiracy
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From today's Ohio Supreme Court decision in State ex rel. Cincinnati Enquirer & Volokh v. Shanahan (written by Justice Stewart); congratulations to my excellent pro bono lawyer Jeffrey M. Nye on the victory:
In July 2020, a Cincinnati police officer using the pseudonym "M.R." filed a complaint for injunctive relief in the Hamilton County Court of Common Pleas alleging that several people, whom he named as defendants, had publicly made the false claim that he is a white supremacist. Along with his complaint, M.R. filed a motion for a temporary restraining order and an affidavit in support of the motion. Respondent, Judge Megan E. Shanahan, allowed M.R. to proceed in the lawsuit using the pseudonym and partially sealed M.R.'s affidavit at his request…. The order stated:
The plaintiff, a police officer, is involved in the apprehension of very violent and dangerous criminals. The officer's job duties expose the officer to physical harm. To require that a document with identifying information be available to the public would further risk injury to the officer and others. In the current climate, with the uptick in violent acts being perpetrated against law enforcement both on-duty and off, active and retired, the Court finds there is a real and serious threat of physical harm. In the present case, one defendant has threatened, in writing, to publish the officer's personal identifying information and other information for the purpose of "doxing" the officer. The Court finds this to be a real and present threat.
Although Judge Shanahan did not expressly identify the evidence supporting her finding that M.R. had been threatened, she likely was referring to a social-media post that was attached as an exhibit to M.R.'s affidavit. The author of that post stated that he was thinking about publicizing M.R.'s name, address, and phone numbers but expressed concern about the legality of doing so. After exchanging messages with others, the poster ultimately stated that he would keep the information to himself, "[f]or now."
Judge Shanahan's second sealing order continued to allow M.R. to proceed pseudonymously but it modified the original order by making parts of M.R.'s affidavit available to the public. The partially redacted affidavit omitted all references to M.R.'s name and to the fact that M.R. has a wife and children. The exhibits to the affidavit remained sealed….
The court began by holding that the sealing of the affidavit was improper:
[Ohio Courts Rule of Superintendence] 45(E)(2) authorizes a court to restrict public access to a document only "if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest." … Judge Shanahan has not shown that the evidence clearly and convincingly justified restricting access to M.R.'s affidavit. To start, the social-media post the judge refers to did not express a clear intent to publicize M.R.'s name, address, and phone numbers. The poster posed a question about whether it would be legal for him to release information about M.R. Although the poster left open the possibility that he might release M.R.'s information, he suggested that he would not do so unless he was told that it was legal. Moreover, making M.R.'s affidavit publicly available would not increase the risk that the poster would publish M.R.'s name, address, and phone numbers, because the poster already has that information.
And even if the poster's statement constituted a genuine threat to publicize M.R.'s information, Judge Shanahan has not shown that the publication would create a risk of injury to M.R. or his family within the meaning of Sup.R. 45(E)(2). See United States v. Cook (N.D.Miss.2020) (discussing "doxing" and concluding that "sharing public information, while potentially offensive and disagreeable, does not rise to the level of a true threat"). Although in her order restricting public access to M.R.'s affidavit Judge Shanahan cited real risks that police officers face, M.R. had not presented any evidence of a threat of physical harm directed at him or his family.
As a final matter, Judge Shanahan argues that the Enquirer and Volokh have not been harmed by the partial sealing of M.R.'s affidavit, because her courtroom remains open to the public and the Enquirer has published the name of the person it believes to be M.R. The issue, however, is not whether the Enquirer and Volokh have knowledge of M.R.'s identity or whether they can publish his name. The issue is whether documents filed in M.R.'s case are court records that must be accessible to the public. The Enquirer and Volokh do not need to prove that they have been injured to be entitled to relief in mandamus in these cases.
The Enquirer and Volokh have a clear legal right of public access to M.R.'s affidavit, and Judge Shanahan has a clear legal duty to provide that access. Accordingly, we grant a writ of mandamus in both cases ordering Judge Shanahan to make the affidavit fully accessible to the public….
And the court held that M.R. shouldn't have been allowed to sue pseudonymously:
As to whether Judge Shanahan lacked authority to allow M.R. to use a pseudonym, the judge argues that the scope of our review is limited to whether she abused her discretion. In support, the judge points to several cases in which an appellate court reviewed whether a trial court had abused its discretion by granting or denying a party's motion to proceed pseudonymously. It appears that when reviewing such orders on appeal, appellate courts regularly review them for an abuse of discretion.
But the cases before us are not appeals. They are original actions in which nonparties to the underlying litigation claim infringement of their constitutional and common-law rights. These cases require us to decide a legal question: Has M.R. overcome the constitutional and common-law presumption that he must litigate his lawsuit using his actual name? We cannot defer to Judge Shanahan's answer to that question, because doing so would reverse the presumption of openness by requiring the Enquirer and Volokh to show that they have a right to see M.R.'s name on court filings. We therefore consider de novo whether it is appropriate for M.R. to proceed using a pseudonym….
It is the rare exception for a litigant to be allowed to proceed anonymously. A court may excuse a plaintiff from identifying himself only when his "privacy interests substantially outweigh the presumption of open judicial proceedings." …
M.R. asked to remain anonymous based on his concern that someone had threatened to publish his personal information. Judge Shanahan found that this threat was real and could lead to an act of violence against M.R. or his family. But this potential threat against M.R. was insufficient to justify his use of a pseudonym. A plaintiff seeking to proceed anonymously for fear of retaliation must show that the filing of the lawsuit causes a risk of retaliation. M.R. did not establish that causal connection; he did not show that any risk of harm against him or his family would increase if he were required to prosecute his lawsuit using his name.
Moreover, M.R. did not show that the threat of his name, address, and phone numbers being published was the sort of threat that could justify the use of a pseudonym. The Ninth Circuit has identified three factors that courts should consider when a plaintiff alleges that the use of a pseudonym is necessary to protect against a threat of retaliation: "(1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, and (3) the anonymous party's vulnerability to such retaliation." M.R. did not show that anyone actually threatened him or his family or that his concerns are reasonable….
As noted in a parenthetical above, a threat to publicize someone's name, address, and phone numbers, though potentially "offensive and disagreeable," does not create an inherent risk of injury to that person. Cook. M.R. and Judge Shanahan both cited real risks that police officers face, and they referred to current societal factors that may put law-enforcement officers at an even greater risk of harm. But these general risks do not show that M.R. "uniquely will face an increased threat of violence—above the generalized threat of violence that all police officers face—as a result of filing [his] lawsuit." Doe v. McKesson (M.D.La.2017), vacated on other grounds; see also Doe v. McKesson (5th Cir.2019) (affirming the district court's decision disallowing the use of a pseudonym), vacated on other grounds.
And finally, even if M.R. had identified a threat of harm attributable to the filing of his lawsuit, the weight of his privacy interest diminished significantly when he disclosed in his complaint that on June 25, 2020, Terhas White and Alissa Gilley filed citizen complaints against him with the Citizen Complaint Authority. M.R. acknowledged that those complaints—which disclose his name—are public records. And the Enquirer referred to the citizen complaints when it published four news articles identifying M.R. by name. Thus, M.R. himself did not completely conceal his identity in filing his lawsuit and undermined his claimed right to privacy. In addition, M.R.'s attorney disclosed M.R.'s identity in open court while seeking a civil protection order on behalf of M.R.'s wife.
Judge Shanahan suggests that the reporting of M.R.'s identity supports the continued use of a pseudonym, because it shows that the Enquirer and Volokh know his identity and have not been harmed. The judge argues that "[t]he only practical effect of [her] order allowing M.R. to proceed pseudonymously is that a member of the public cannot glean his identity with a simple search of the clerk's website." But that is exactly the point—the public (not just the relators in these cases) has a right to know who is using the court. Except in rare cases, the public has a right to learn that information from the court itself….