The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Judge Steve Merryday's order today in Navy Seal 1 v. Austin (M.D. Fla.):
Although acknowledging the "presumption that parties' identities are public information," the plaintiffs claim that a privacy interest under governing authority overcomes the presumption. The plaintiffs assert that the privacy of their medical and health information and the privacy of their religious beliefs and practice, as well as the prospect of "stigma, ostracization, retaliation, and other harms," including threats of violence, require the use of a pseudonym.
The plaintiffs correctly observe that "religion is perhaps the quintessentially private matter." Prosecution of this action compels the plaintiffs to disclose sincere religious beliefs and to disclose the deeply personal experiences that form the foundation of those beliefs. For example, Lieutenant Colonel 2 opposes any vaccine associated with aborted fetal cell lines because she received an abortion after suffering a rape and later—through her religious devotion—believes herself forgiven, according to her beliefs, for the sin of abortion. Although the defendants argue that the plaintiffs' vaccination status "is not a matter of utmost intimacy," this action encompasses substantially more intimate detail than whether a person chose to accept a vaccine.
Further, the plaintiffs point to an array of recent and current actions similar to, or nearly the same as, this action that permit pseudonyms for the same reasons that plaintiffs advance. See, e.g., Does 1–6 v. Mills (D. Me. 2021); Air Force Officer v. Austin (M.D. Ga. 2022). Mills recognizes the "reasonable fear of harm that outweighs the public's interest" in disclosure because of the "substantial public controversy currently surrounding public and private mandates requiring individuals to be vaccinated for the COVID-19 coronavirus or to provide proof of vaccination status." Mills (granting leave to proceed pseudonymously to healthcare workers objecting to a COVID-19 vaccination requirement). As in Mills, the plaintiffs in this action challenge the government on the controversial issue of a COVID-19 vaccination requirement. The statements and incidents cited by the plaintiffs adequately demonstrate, and everyday experience in recent weeks and months confirms, an acrid public atmosphere of contention about masks, vaccines, mandates, and the like.
Beyond the plaintiffs' interests in maintaining privacy and safety, the record shows that little harm results from the plaintiffs remaining innominate. The public's interest in this action is satisfied by the facts patent in the record—the branches of the armed forces involved; the rank, duty, service record, and the like of the litigants; the nature of the claims and defenses; and the orders of the court. The names add nothing substantial, but enable those who—through "social media," as well as more immediate mechanisms—intimidate, harass, and defame.
The law is actually quite unsettled as to whether pseudonymity is generally allowed in order to protect information about people's religious beliefs or even about their having had abortions; for more, see pp. 52-53 (abortion) and 59-61 (religious beliefs) of my forthcoming The Law of Pseudonymous Litigation.