The Volokh Conspiracy
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State Trooper Suing Andrew Cuomo for Harassment Can Be Pseudonymous, Because the Case Is "High-Profile"
The court's view appears to be that, the more public interest in a case, the less the public is entitled to know.
The public generally has a right to access court records, including in civil cases—a right that is intended to "protect[] the public's ability to oversee and monitor the workings of the Judicial Branch." And this right extends to knowing the names of the parties:
[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among the facts is the identity of the parties. We think that as a matter of policy the identity of the parties to a lawsuit should not be concealed except in the unusual case.
"The Court is a public institution and the public has a right to look over our shoulders and see who is seeking relief in public court." (All quotes are from various federal court opinions on the subject; for citations and more, see here.)
Such access to parties' names is of course also important so that reporters, researchers, activists, and others can investigate the backstory behind a case, and behind the credibility of the parties. (Have they brought similar claims before? Is there reason to especially trust or doubt their assertions? What can their acquaintances and coworkers report about the supposed underlying incidents?) The richest news stories about lawsuits, of course, come not from just covering the filed documents, but by exploring this sort of backstory. And because the right here is a right of the public, the defendant's agreeing to a plaintiff's pseudonymous request (which is what happened in this case) isn't enough to defeat the right.
This having been said, courts do sometimes allow pseudonymous litigation. It's particularly common in purely legal challenges (e.g., Roe v. Wade), where the identity of the party is largely beside the point; and it also sometimes arises when a lawsuit is over matters "of the utmost intimacy," such as abortion, transgender status, and the like.
This brings us to Trooper 1 v. N.Y. State Police, decided Thursday by Magistrate Judge Taryn Merkl (E.D.N.Y.):
On February 17, 2022, Trooper 1 …, a member of former New York Governor Andrew Cuomo's Protective Service Unit, initiated this action alleging that former Governor Cuomo sexually harassed her and other state employees. The complaint names as Defendants the New York State Police … former Governor Andrew Cuomo …, Melissa DeRosa …, and Richard Azzopardi …. Plaintiff is claiming, among other things, discrimination and retaliation in violation of the federal Equal Protection Clause, the New York State Human Rights Law, and the New York City Human Rights Law….
The alleged sexual harassment was:
He then sexually harassed her. He commented on her appearance ("why don't you wear a dress?"); wanted to kiss her ("[c]an I kiss you?"); asked her to find him a girlfriend who could "handle pain;" and steered their conversations towards sex ("[w]hy would you want to get married? … your sex drive goes down"). As with his other victims, the Governor used his physical proximity to Trooper 1 to touch her inappropriately ("he runs his finger down the center of my back of my spine, basically from the top of my neck, basically midway down with his pointer finger and just said, 'Hey, you'").
The court noted that the case was about "sexual harassment, which courts have found to be 'highly sensitive and of an extremely personal nature'" (citing one case, which had also involved allegations of sexual assault), and concluded that this "favors granting Plaintiff's motion." But most of the analysis focused on how much attention the case was likely to draw:
Generally speaking, "'the potential for embarrassment or public humiliation does not, without more, justify a request for anonymity.'" Courts often require "more direct evidence linking disclosure of [a plaintiff's] name to a specific physical or mental injury." … [But] in light of the allegations contained in the complaint and the high-profile nature of the case, "[h]aving the plaintiff's name in the public domain, especially in the Internet age, could subject the plaintiff to future unnecessary interrogation, criticism, or psychological trauma, as a result of bringing this case." As a result, the Court finds that a "chilling effect" could result from Plaintiff's being required to reveal her identity, which weighs in favor of permitting Plaintiff to continue anonymously….
As for whether "the public's interest in the litigation is furthered" by requiring Plaintiff to disclose her identity, the Court finds that this factor also tilts toward Plaintiff….
[W]hen a plaintiff challenges governmental or pseudogovernmental action, the judicial process serves as a significant check on abuse of public power. Thus, as the courts have noted, it is in the public interest that the price of access to the courts not be too high. Where litigants risk public scorn or even retaliation if their identities are made public, unpopular but valid complaints may not be pursued. The value of open proceedings disappears when there are no proceedings to be had.
Here, the Court finds that there is a substantial public interest in the litigation, and that this is a case where the price of access to the courts should "not be too high." …
[T]he Court [also] does not find any alternative mechanisms for protecting Plaintiff's confidentiality in this case given the high level of interest the public and media would certainly have in Plaintiff given the nature of the allegations set forth in the Amended Complaint….
Plaintiff's motion to proceed using a pseudonym … [is therefore] granted without prejudice to Defendants to revisit this issue before trial.
This, it seems to me, well illustrates just how inconsistent federal district courts are on this question.
[1.] First, courts are sharply split even on whether to allow pseudonymity to people suing claiming they have been sexually assaulted (see Appendices 2a & 2b). They are also generally skeptical of such pseudonymity when the allegation is of sexual harassment short of assault. (I cite many examples in my article.) This is evident, for instance, in the fact that all the Supreme Court's sexual harassment cases have been nonpseudonymous (except Davis as next friend of LaShonda D. v. Monroe County Bd. of Educ., in which LaShonda D.'s full name wasn't included because she was a minor). And the one case that the Trooper opinion cites supporting pseudonymity for sexual harassment cases actually also involved sexual assault.
At the same time, there are some cases that do allow pseudonymity as to allegations of sexual harassment. The case that Trooper cited did seem to speak broadly about the private nature of sexual harassment and not just sexual assault; and a few other cases have taken a similar view. We see similar disagreements in the lower court cases as to nearly all the other categories of personal information that lead litigants to seek pseudonymity, such as having had abortions, being gay or lesbian, and so on.
[2.] But more importantly, courts are split on whether public interest in the case cuts in favor of pseudonymity or against. For instance, Doe v. Megless (3d Cir. 2011), says that the case for public access is strengthened when
because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant's identities, beyond the public's interest which is normally obtained.
More than 60 cases cite this, including nine outside the Third Circuit. And other cases take a similar view, e.g., "the fact that this case may have gained media and community attention is reflective of why the public interest in open judicial proceedings should be respected."
At the same time, some courts do view public interest in a lawsuit as cutting against naming the parties, because they are concerned that the publicity may increase the intrusion on parties' privacy and damage to their reputation. (Again, I cite examples in my article.)
[3.] The court also concludes that the fact that a claim is against the government cuts in favor of pseudonymity:
Generally, in suits against the government, a plaintiff's interest in anonymity is "particularly strong," as institutional defendants are less likely to be prejudiced by a plaintiff's anonymity. EW v. New York Blood Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003); see also North Jersey Media Group Inc. v. Doe Nos. 1-5, No. 12-CV-6152 (VM) (KNF), 2012 WL 5899331, at *7 (S.D.N.Y. Nov. 26, 2012) (finding that suits against the government "involve no injury to the Government's reputation" (quotation marks omitted)).
And other cases do take this view. But still other cases conclude that when a claim is against the government, that cuts against pseudonymity, because they involve a "claim to relief [that] involves the use of public funds, and the public certainly has a valid interest in knowing how state revenues are spent," especially when plaintiff makes serious charges of misconduct by government officials. Other courts likewise note that the interest in openness "is heightened because Defendants are public officials and government bodies." "The public has a strong interest in knowing the accusations against its tax-funded entities as well as the identities of the individuals making those accusations…. The public's interest … weighs heavily against anonymity because the defendants are public servants who stand accused of a gross abuse of power."
Now there are definitely plausible reasons in favor of pseudonymity, as well as against, including that the fear of publicity, embarrassment, and reputational damage could lead plaintiffs not to file even meritorious lawsuits, and can thus lead to underenforcement of the law. On balance, I think that the value of public supervision of court proceedings overcomes those concerns, but one can certainly debate that.
But whatever the right solution should be, I think we need something better than the current system, where the decisions are inconsistent because they are left largely to the predilections of the district court judge whom you happen to draw, with little real law created by appellate courts (beyond multi-factor balancing tests, which do little to really constrain district court discretion).
