The Volokh Conspiracy

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Free Speech

Pseudonymity for Libel Defendants (Former Co-Presidents of Campus Activist Group) in #TheyLied Claim


The Complaint in Doe v. University of Maryland, College Park (D. Md.) alleges:

After John Doe was fully exonerated of horrendous and malicious false allegations, the University of Maryland repeatedly refused to protect his rights as a student. The University allowed Doe to be publicly defamed as a rapist by students who worked closely with the University's Title IX office. When Doe submitted his complaints to the University alleging violations of University policy, including retaliation and sexual harassment, the University ignored his complaints.

Doe sued the university under Title IX and the two students—who had then been co-Presidents (consuls?) of the UMD Preventing Sexual Assault group—for defamation and intentional infliction of emotional distress. But the defendant students then asked to be pseudonymized (which Doe agreed to, perhaps out of a desire to keep his own pseudonymous status):

Both Defendants take pride in their work on behalf of men and women victimized by conduct ranging from sexual assault to catcalling. They stand accused in this case of defamation committed with malice against the Plaintiff, a very serious allegation indeed.

Both Defendants just graduated from the University of Maryland, College Park. Defendant Two is still job hunting in her field. Defendant Three secured a job in her chosen field of public relations. Defendant Three, who has a less common name than many, was shocked to discover that a Google search of her name yields as the fifth entry, pleadings in this case. For Defendant Two, she shares her name with others with many online entries. Defendant Two is concerned that could change as the case progresses.

For both, however, searches on Google, PACER, Judiciary Case Search, etc. are all standard practices for many employers. They are at the beginning of their professional careers. They are greatly concerned about the potential impact on future employers because of these serious allegations which they absolutely reject. Defendant Two, in point of fact, defends these allegations in that she was simply uninvolved—distinct from Defendant Three who defends these allegations as simply wrong or grossly conflated.

And the court granted the motion, without a written opinion.

This is highly unusual.

Defendants, even ones accused of much more serious offenses than libel (e.g., sexual assault, embezzlement, even professional incompetence) generally have to proceed under their own names. And the parties' consent is generally not enough to justify pseudonymization, because the public has an interest in knowing litigants' identities:

Judicial hostility to a party's use of a pseudonym springs from our Nation's tradition of doing justice out in the open, neither "in a corner nor in any covert manner." In defending that tradition, we have explained that "[p]ublic access to judicial records and documents allows the citizenry to 'monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.'" "Identifying the parties to the proceeding is an important dimension of publicness." That is because—to a certain degree—letting a party hide behind a pseudonym dims the public's perception of the matter and frustrates its oversight of judicial performance.

Lacking knowledge of the parties' names, the public could learn virtually nothing about a case outside the facts and arguments in the record. The record, though, is not the alpha and omega of public concern. To take one example of important extra-record data, the real-world aftermath of a suit will sometimes bear upon the assessment of whether justice was done. Another example is the kind of institutional rot that is scrubbed from the record: judicial conflicts of interest, ex parte contacts, and the like. Anonymizing the parties lowers the odds that journalists, activists, or other interested members of the public would catch wind of such mischief. See Globe Newspaper Co. v. Pokaski (1st Cir. 1989) (acknowledging "the contribution to governance of investigative reporting" regarding such matters).

An even thornier issue involves protecting the appearance of fairness in judicial proceedings. "Litigating behind a curtain creates a shroud of mystery, giving the impression that something secret is going on." Secrecy breeds suspicion. Some may believe that a party's name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up. It is no answer to dismiss such beliefs as conspiracy theories because "justice must satisfy the appearance of justice." Distrust is toxic to the judiciary's authority, which "depends in large measure on the public's willingness to respect and follow its decisions." A judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts' work.

So what's happening here? Perhaps courts are in practice applying a subtle "promising young man/woman" exception to the standard non-pseudonymity norm (which might help explain why a lot of Title IX plaintiffs who claim that they were wrongly found guilty of sexual assault have gotten pseudonymity, see pp. 1401-02 and Apps. 4A & 4B of my The Law of Pseudonymous Litigation article). But any such special exception strikes me as hard to justify. Surely it's difficult to get a job as a young person when there are publicly accessible allegations against you, but it may be even more difficult to get such a job when one is (say) in one's fifties and looking for a new job in one's established career.

I should acknowledge, though, that at this point this is just pseudonymization in the caption; the earlier filings weren't pseudonymized. Reporters, academics, and others who want to research the case can thus find the names of the defendants; and this will in turn help them, for instance, find the news stories that mention the defendants as student activists and discuss their work and their perspectives.

Perhaps this is a plausible compromise: The names aren't hidden from researchers, but are less likely to come up in simple casual Google searches, and less likely to appear in any future published court opinion (see pp. 1423-25). On the other hand, the defendants' motion signaled the possibility of future attempts to conceal the information more broadly (though perhaps such retroactive concealment would be difficult):

For the moment, Your Defendants will be satisfied with removing further use of their names from the public record. They will reserve the question of seeking a re-filing of pleadings to date and hope it is not needed in the future.

It will be interesting to see whether defendants seek such more comprehensive pseudonymization—and whether other defendants in similar cases will start to seek  pseudonymity as well.

Congratulations to John J. Condliffe of Levin & Gann, P.A., who obtained this unusual benefit for his client.