The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm writing about this both because it strikes me as an interesting example of what litigants sometimes try to do (and occasionally succeed), and also because I thought our readers ought to see what the litigant accused me of—perhaps some of you may agree with her—and see my response. That's particularly so because some readers might view this as influencing my general views on harassment restraining order cases, which I'll doubtless blog about more in the future; I should note, though, that I've been writing and litigating about these matters extensively long before this petition was filed against me (see, e.g., this 2013 article and this 2021 article, plus too many blog posts and briefs to list here).
Several months ago, I wrote about a frequent litigant, in connection with a federal case of hers in in which (1) she was first allowed to proceed pseudonymously but then (2) was depseudonymized by the judge after evidence related to her past cases had emerged. I used her name in connection with that case, as the judge had, and also drew connections (based on public records) between that case and other cases that she had been litigating pseudonymously. [UPDATE: I used this in part to illustrate the difficulty that courts and defendants might have in tracking potential vexatious litigants, given that counting an adversary's past unsuccessful lawsuits may be much harder if they were all pseudonymous.]
Several weeks ago, the litigant filed Doe v. Volokh, No. 22STRO05198 (L.A. Superior Ct.), a petition for a "harassment restraining order" in California court. She stated in her declaration that,
On July 11, 2022 I received two harassing phone calls from different people, calling me cunt, bitch, slut, lying on men etc and indicating they would rape and kill me. After the second call I immediately shut down my phone and keep it off. I was confused because I did not know those people. I was terrifying and fearful for my life. Later I figured that Eugene Volokh (Volokh) has published my personal information online and the death threats came from his readers/haters. His publication includes incomplete facts and portrays me in a false light. He states that I was convicted of several crimes but he leaves out the fact that I am currently seeking post-conviction relief due to wrongful conviction. I previously received several court orders to protect my real name as a rape victim. He publishes my real name associated with all these cases. His publication effectively makes all those protective orders void. Further, he alleges that I had made similar rape accusations against other people which again portrays me in a false light.
(Note that the "personal information" was just her name and the cases she was involved in; I didn't publish any further information about her, such as her phone number or the like.) Her legal argument was basically this:
On July 12, 2022 I made contact with Volokh and asked him to respect the court orders and my privacy and take remedial action. He refused to do so even after I informed him of the death threats I received. He alleged it was his right to free speech and cited Florida Star v. B.J.F. , 491 U.S. 524 (1989). His reliance is inappropriate in the following aspects:
First, given "the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights" the Court refused to accept invitations to "hold broadly that truthful publication may never be punished consistent with the First Amendment." The Court "emphasized each time that we were resolving this conflict only as it arose in a discrete factual context." The Florida Star v. B. J. F, 491 U.S. 524, 530-536 (1989).
The Court has also stated that due to the highly significant interests it does "not rule out the possibility that, in a proper case, imposing civil sanctions for publication of the name of a rape victim might be so overwhelmingly necessary to advance these interests." Id. at 537. The Court concluded that it did "not hold that truthful publication is automatically constitutionally protected." Id. at 541. The facts in Florida Star provide a vivid example of the dangerous consequences that disclosing a victim's name may possibly have.
"The right of free speech is not without limitations. It is always to be exercised with due regard for the rights of others." Seven Up Bottling Co. v. Grocery Drivers Union, 233 P.2d 617, 619 (Cal. Ct. App. 1951). "In California, speech that constitutes 'harassment' within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief." Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelly USA, Inc. (2005) 129 Cal.App.4th 1228, 1250. See also Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1410-1413 [Holding that song lyrics, if used to harass and ridicule, are not protected speech; affirming injunction where the defendant wrote three vitriolic letters to a third party with the intention that they would be discovered and read by plaintiff.]
Second, Florida Star was a local weekly newspaper who published the name of the victim of a sexual assault. The publication of a weekly newspaper was a one-time publication to only local residents. Florida Star's publication was limited as to time and scope of readers. Florida Star did not continue to publish the victim's name every week. However, Volokh's publication is online, freely available to the entire world, and forever. Anyone in Europe, Asia, or America can have access to his publication. Volokh's publication makes me a vulnerable target of worldwide haters. His publication invites worldwide haters to threaten, stalk, and commit violence against me. "Conduct or speech that is physically threatening, harassing, intimidating, or assaultive is not constitutionally protected." People ex Rel. Gallo v. Acuna, 14 Cal.4th 1090, 1144 (Cal. 1997).
Further, I revealed to very limited people about the incidents but now anyone, my relatives, friends, co-workers, or even acquaintance can easily find out the incidents that subject me to social stigma. Even hundred years later his publication will be still available to the entire world on the internet. The harm caused by Volokh's publication is much greater than the harm caused by Florida Star's publication.
Third, Florida Star's publication of the name of the Victim of a sexual assault was not intended to cause harm. Unlike Florida Star, Volokh is well aware of the harm that has caused me and all the protective orders for the purposes to protect my identity but he refused to take action to cease the harm. Therefore, Volokh's continuing publication of my identity is intended to cause harm of a life time.
Fourth, B.J.F. did not have specific court orders to protect her identity but I have several valid court orders to protect my identity as a rape Victim. Volokh has no legal authority or any right to void those court orders by publishing my identify and the case information all together.
Fifth, "[I]n many contexts, the scope and application of the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts. [Citations.]" American Academy of PediaIrics v. Lungren (1997) 16 Cal.4th 307, 326-327. Even in the context of prevention of secrecy in government, "the public interest in protecting the privacy of noise complainants and in preventing a chilling effect on complaints, clearly outweighs the public interest in disclosure of complainants' names…" City of San Jose v. Superior Court, Santa Clara, 74 Cal.App.4th 1008, 1012 (Cal. Ct. App. 1999). Volokh's publication of my identity is a rape of my right to privacy.
In Melvin v. Reid, 112 Cal.App. 285 (Cal. Ct. App. 1931), the defendants made a motion picture of the early life of the plaintiff, who had been acquitted in a notorious murder case. It truthfully depicted her as a prostitute at that time, and used her true maiden name; all facts were drawn from the public record. The court held that while the facts of her prior life were not private, the use of her name was actionable. The court reasoned that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us and was a direct invasion of her inalienable right guaranteed to her by our Constitution, to pursue and obtain happiness. Id. at 292. See also Varo v. L. A. Cnty. Dist. Attorney's Office, 473 F. Supp. 3d 1066 (C.D. Cal. 2019) (Holding the county violated the victims' constitutional right to informational privacy by disclosing their information to the perpetrator, who subsequently threatened and shot one of the victim's family members.) …
The real threat and danger from haters is unpredictable. It is much worse than the violence directly from Volokh. If the violence is solely and directly from Volokh at least I know how to prepare myself. But it is impossible for me to prepare for the threat and violence from continuingly growing haters. For instance, A, B, and C read Volokh's publication this month, but next month D, E, and F will read Volokh's publication. Each day and each month there will be new readers/haters to read Volokh's publication. Even I change my phone number and residence this month to avoid the threats and violence from A, B, and C, I cannot keep changing phone number and residence next month to avoid the threats and violence from D, E, and F. And this will continue for the rest of my life. It is impossible to prepare for the threats and violence when I do not know when, where, and from which haters….
Even though I keep my phone off most of the time I still continue to receive threatening phone calls once I tum on my phone and I also receive harassing voice mails. At the end of July 2022 I was forced to move out of my prior residence for safety concern. However, I don't know how long this can keep me safe.
In a response to my anti-SLAPP motion, Doe added:
[II.] PETITIONER HAS DEMONSTRATED A PROBABILITY OF PREVAILING ON THE CLAIM
Free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and (5) whether some less restrictive alternative exists for achieving it.
Both Florida Star v. B.J.F. (1989) 491 U.S. 524 and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) chose to take a narrow view and limited their holdings. Importantly, the Supreme Court expressly refused to address the broader question of whether the truthful publication of facts obtained from public records can ever be subjected to civil or criminal liability. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975). The controlling case is not Cox Broadcasting, but Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979). The Court concluded that the correct rule, formulated in Daily Mail, is that "[[i]]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Florida Star v. B.J.F. (1989) 491 U.S. 524, 533. The Daily Mail formulation reflects the fact that it is a limited set of cases indeed where, despite the accessibility of the public to certain information, a meaningful public interest is served by restricting its further release by other entities, like the press. Id. 535. The instant case falls within that limited set of cases.
It is undisputed that Petitioner is not a celebrity that would draw public attention. Initially there was no undesired publicity of her until Volokh's massive online publication. Volokh does not carefully select his viewers or readers and his publication is available indefinitely to the entire world. Volokh's massive publication serves the purpose of incitement to entice haters to stalk, harass, threaten, and commit violence against Petitioner. It is also undisputed that there is no other person or entity that draws unnecessary public attention to Petitioner as Volokh does. Social welfare sometimes trumps personal desire, allowing for laws against incitement, fighting words, antitrust regulations, patents, and other types of restraints that do not implicate core constitutional concerns.
The relief sought by Petitioner furthers at least three closely related interests: the right to be free from unwarranted and undesired publicity and the right to be free from harassment and violence of victims of sexual offenses; the physical safety of such victims, who may be targeted by haters; and the goal of encouraging victims of such crimes to report these offenses without fear of unnecessary exposure.
Volokh has known very well what the consequences of his massive publication would be. It was eminently foreseeable given his experience as he cited Florida Star v. B.J.F. (1989) 491 U.S. 524….
[III.] BALANCING TEST TIPS IN PETITIONER'S FAVOR
This court must balance the private and societal interest in Volokh' speech against any competing constitutional concerns that would be implicated. See, e.g., Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910-911 [balancing signature gatherers' "wish to disseminate ideas" with concern "that these activities do not interfere with normal business operations" and "property or privacy rights" of occupants and owners.]
The Supreme Court's use of a balancing test to resolve conflicting press and privacy interests was restated by Justice Rehnquist in the Daily Mail case:
Historically, we have viewed freedom of speech and of the press as indispensable to a free society and its government. But recognition of this proposition has not meant that the public interest in free speech and press always has prevailed over competing interests of the public. "Freedom of speech thus does not comprehend the right to speak on any subject at any time," [Citation], and "the press is not free to publish with impunity everything and anything it desires to publish." [Citation]. While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented. [Citation]
The relief Petitioner seeks has little or minimal impact on Volokh's speech. However, as a result of Volokh's continuing massive publication, Petitioner has been forced to endure malicious and cruel abuse at the hands of ruthless and unscrupulous people. On a regular basis, Petitioner has faced harassment, verbal assault, stalking, death threats, constant fear and more. Under the particular circumstances presented here Petitioner deserves greater protection….
And she sought the following order:
Attachment 8C—Other Personal Conduct Orders
The effect of the following ban on Eugene Voloky's [sic] speech is minimal. People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1121 (Cal. 1997). The ban on his speech costs him nothing but his speech costs me lifetime health and safety.
I ask the court to order Eugene Volokh to do any of the following things:
- Remove any remarks, comments‚ or references from any publicly available documents or articles authored by Eugene Voloky that connect Protected Party's real name with rape or sexual assault;
- Remove any remarks, comments, or references from any publicly available documents or articles authored by Eugene Voloky that connect the Protected Party's real name with the cases in which she has received a protective order to proceed under a pseudonym;
- Cease publishing any remarks, comments, or references that connect the Protected Party with rape or sexual assault;
- Cease drawing public attention to the Protected Party's real name associated with rape or sexually assault.
I responded with the following response and anti-SLAPP motion, which the Court just granted this morning. (I also moved to oppose Doe's attempt to proceed pseudonymously; that will be heard Oct. 25, but because that motion is pending, I don't mention Doe's name in the excerpts below, though I don't believe I am legally forbidden from doing so.)
You'll note that the motion predominantly focuses on why I am legally entitled to publish this material even if a tiny fraction of my readers acted illegally because of what they read. But I should also note that I'm skeptical that any of the calls that Doe received actually stemmed from my law review article (the only place I mentioned her full name) or from my blog posts (where I mentioned her last name, which appears to be a fairly common Chinese name). Doe may well have enemies from various sources, including her past lawsuits. But I have no reason to believe that any enemies emerged from, or were enabled by, my law review article and my blog posts.
Note also that Doe's petition is not precise on which of my writings she was concerned about, and an earlier, procedurally unsuccessful attempt on her part to get such an order seemed to focus just on the article; but I assumed that she was also discussing my blog posts (since I didn't want to be accused of understating in my motion my past references to her). And, finally, many thanks to Ken White (@PopeHat), who took the time to talk to me about this matter and offer me his sage counsel.
Here's my motion:
Petitioner Jane Doe—a frequent unsuccessful litigant—is asking this Court to impose unconstitutional prior restraint to prevent a law professor from writing about important, publicly available cases about pseudonymity. That demand is meritless, and this Court should grant Prof. Volokh's anti-SLAPP motion to strike it. In the alternative, this Court should treat this Motion and the evidence herein as Prof. Volokh's opposition to the Petition and, on these grounds, deny the Petition….
Eugene Volokh is a law professor who has recently been writing about pseudonymous litigation, including in (1) the law journal article The Law of Pseudonymous Litigation (2022) 73 Hastings L.J. 1353 …, and (2) many blog posts …. Jane Doe is a frequent pseudonymous litigator …. [Details omitted. -EV] Naturally, Volokh found [some of Doe's past cases] and Jane Doe's litigation behavior more broadly to be relevant to his research…. He … mentioned Doe by her full name … in his Hastings article, and by her last name in three blog posts …. This is clearly constitutionally protected, and is akin to what scholars and reporters often publish.
Now Doe is trying to abuse the § 527.6 harassment restraining order process to suppress Volokh's constitutionally protected writings. That is unauthorized by § 527.6 and forbidden by the First Amendment. Doe's petition is based entirely on Volokh's constitutionally protected speech—which is equivalent for First Amendment purposes to a Los Angeles Times article that mentions someone's name. And Doe also seeks an injunction requiring the removal of constitutionally protected speech, and forbidding future instances of constitutional protected speech.
None of Volokh's writings involves any threat of violence by Volokh. Doe's claim is that she believes, with no proof, that two people made harassing calls to her after reading Volokh's work. But that cannot justify restricting speech, any more than this Court could order the Times to take down an article that has caused some readers to react with hostility to a person mentioned in the article….
[A.] The Anti-SLAPP statute, § 425.16, applies to this proceeding
This Court should strike Doe's complaint under the anti-SLAPP statute (Cal.Code Civ.Proc. § 425.16). The anti-SLAPP statute applies to § 527.6 petitions (except for purely interim TROs) as well as to other civil cases. (See Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1239; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 641-42.) …
Section 425.16 calls for "a two-step process for determining whether an action is a SLAPP" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88), and thus whether the action must be struck:
- First step: "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. 'A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e).'"
- Second step: "If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim."
"[P]laintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment." Navellier v. Sletten (2003) 106 Cal. App. 4th 763, 768. "In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
Volokh's writings are covered by § 425.16 under the first step, because they constitute "act[s]" "in furtherance of" Volokh's "right of … free speech," under three separate clauses:
- They are "writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body" (§ 425.16(e)(2)).
- They are "writing[s] made in a place open to the public or a public forum in connection with an issue of public interest" (§ 425.16(e)(3)).
- They are "conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest" (§ 425.16(e)(4)).
And because Volokh's articles are constitutionally protected, and in any event not covered by § 527.6, Doe cannot carry her step-two burden of showing "a probability that [she] will prevail on the claim" (§ 425.16(b)(1)).
[A.] Step one: Volokh's articles are presumptively protected by § 425.16
California "courts have repeatedly held that reports of judicial proceedings," including on a "Web site," "are an exercise of free speech within the meaning of section 425.16." (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397.) This is because publications about proceedings before government bodies constitute "writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body" (§ 425.16(e)(2)). Thus, for example,
- An article reporting on "statements made during deposition or … at [a] custody trial" is covered by § 425.16 (Sipple v. Found. for Nat. Progress (1999) 71 Cal.App.4th 226, 238).
- Articles about a dispute among property owners "and the related hearings held by the … Board of Supervisors …, the county's enforcement action, and [the] responsive federal suit" are covered by § 425.16, because they are "clearly united by dependence on or relation to the official executive, legislative, and judicial actions they described." (Lafayette Morehouse, Inc. v. Chron. Publ'g Co. (1995) 37 Cal.App.4th 855, 863, superseded by statute on other grounds, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478.)
- Articles reporting on an executive branch audit of a private entity are "in connection with an issue being reviewed by an official proceeding" and thus covered by § 425.16. (Braun v. Chron. Publ'g Co. (1997) 52 Cal.App.4th 1036, 1047 [cited approvingly in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116-17].)
And once a defendant shows that the cause of action arises from such "writing[s] made in connection with an issue under" governmental consideration, there is no need for a plaintiff to satisfy "any separate 'public issue' requirement." (Briggs, supra, 19 Cal.4th at 1113.)
Likewise, Volokh's Hastings Law Journal article—which reports on what has happened in hundreds of cases, including [Doe's case]—is "in connection with an issue under consideration or review by a … judicial body," as are Volokh's blog posts that mention [Doe's case] and similar cases. Indeed, [Doe's case] remains "under consideration or review" both by the District of Colorado and, as to the pseudonymity question, by the Tenth Circuit.
Volokh's blog posts and law review articles are also covered by § 425.16(e)(3) [and § 425.16(e)(4)]. [Details omitted. -EV]
Naturally, while discussing this public issue, Volokh's writings mention both the holdings of the cases and the identities of specific litigants whose actions led to those decisions. But that is an inherent feature of a rich, detailed discussion of a matter, just as a newspaper article about a lawsuit would naturally include accurate reporting on who was involved in the lawsuit.
[B.] Step two: Doe cannot "establish" "a probability that [she] will prevail on the claim" …
[1.] Volokh's writings are protected by the First Amendment, and thus cannot be enjoined or form the basis for a § 527.6 injunction
Volokh's writings cover public record information about Doe's lawsuits, and are thus protected by the First Amendment. "'[T]he States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.'" (Gates v. Discovery Commc'ns, Inc. (2004) 34 Cal.4th 679, 688 (quoting Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 495.) This extends to rape victims' names, when they appear in government-provided documents. (Florida Star v. B.J.F. (1989) 491 U.S. 524, 526.) And it applies to reporting both of long-past proceedings and of "current judicial proceedings" (Gates, supra, 34 Cal.3d at 695 (cleaned up)) …. Judge Bradley S. Phillips thus correctly refused to grant a temporary order in Doe's earlier, abortive petition against Volokh, writing, "The alleged conduct of the person in (2) is likely protected free speech under the First Amendment." (Notice of Court Hearing, Voloky, supra, at 2.)
Nor can this right be overcome by claims of "privacy": "[A]n invasion of privacy claim based on allegations of harm caused by a media defendant's publication of facts obtained from public official records of a criminal proceeding is barred by the First Amendment." (Gates, supra, 34 Cal.3d at 696.) Volokh is a media defendant, as noted in Part I; but in any event, the First Amendment equally protects media and nonmedia speakers. (See, e.g., Bartnicki v. Vopper (2001) 532 U.S. 514, 525 n.8 [rejecting media/nonmedia distinction in invasion of privacy case]; Miller v. Nestande (1987) 192 Cal.App.3d 191, 200 n.7 [likewise, in a libel case]; Obsidian Finance Group, LLC v. Cox (9th Cir. 2014) 740 F.3d 1284, 1291 [likewise; "a First Amendment distinction between the institutional press and other speakers is unworkable"].)
Indeed, Gates expressly overruled the contrary reasoning in a leading earlier invasion of privacy case, Briscoe v. Reader's Digest Ass'n, Inc. (1971) 4 Cal.3d 529. (Gates, supra, at 697, fn. 9.) And it thus implicitly overruled Melvin v. Reid (1931) 112 Cal.App. 285, on which Briscoe had relied (4 Cal.3d at 534), and on which Doe relies, Declaration of Jane Doe [Doe Decl.] at 3-4. (See also Catlett v. Teel (Wash.Ct.App. 2020) 477 P.3d 50, 53 [setting aside an "antiharassment protection order" because it imposed "an unconstitutional content-based restriction" on the respondent's speech and "an unconstitutional prior restraint," to the extent that it covered respondent's publishing material drawn from "public records"].)
Doe alleges that she has "several valid court orders to protect [her] identity as a rape victim," and that "Volokh has no legal authority or any right to void those court orders by publishing my identity and the case information all together." Doe Decl. at 3. Presumably she is referring to the fact that, in some of the cases in which she participated, the court had allowed her to participate pseudonymously. But Volokh is unaware of any pseudonymity orders in any of the cases cited above that even purport to bind third parties like him.
Indeed, even if the protective orders in other cases did seek to bind third parties, they could not do so. "Every [i]njunction and [r]estraining [o]rder" "binds only" "the parties" and their agents and others "who are in active concert or participation" with them. (Fed. R. Civ. P. 65(d).) The same is true for protective orders—"a protective order generally does not bind a non-party," at least unless "the non-party … agree[d] to be bound by the order." (State ex rel. Thomas v. Grant (Ariz.Ct.App. 2009) 213 P.3d 346, 347, 350 [expressly rejecting the view that "a non-party that comes into possession of information it knows is covered by a protective order is bound by the order not to disseminate the information just as a party to the litigation would be bound"].)
A court order cannot "prevent [the media] … or anyone else from disseminating the substance of information already in the public domain." Tavoulareas v. Washington Post Co. (D.D.C. 1986) 111 F.R.D. 653, 660. Indeed, even a party "may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes." Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34. It is even clearer that Volokh—a non-party to those cases—may freely use information about the plaintiff's identity that he obtained from the public records in other cases. A protective order must "not restrict the dissemination of information obtained from other sources." Anderson v. Cryovac, Inc. (1st Cir. 1986) 805 F.2d 1, 14.
Doe also in passing alleges that Volokh "portrays [her] in a false light," because "[h]e states that [Doe] was convicted of several crimes but he leaves out the fact that [Doe is] currently seeking post-conviction relief due to wrongful conviction" (Doe Decl. at 1). Of course people convicted of crimes are free to claim they were innocent, and are free to seek post-conviction relief so arguing, even after their convictions have been affirmed on appeal. But there is no legal principle requiring someone who mentions a conviction to also mention that it is being challenged in a state or federal habeas proceeding.
Likewise, Doe states that Volokh "alleges that [she] had made similar rape accusations against other people which again portrays me in a false light" (Doe Decl. at 1). But public record documents do suggest that it indeed "appears that [Doe] had made similar accusations," Volokh, supra, 73 Hastings L.J. at 1370, see Doe v. Newsom (C.D.Cal. Mar. 26, 2021) No. 2:20-cv-04525, at *2 (discussing such accusations); Volokh, supra, 1370 fn. 75 (citing sources indicating that the plaintiff in Doe v. Newsom is the Doe in this case). And in any event, the harassment restraining order process is not intended to be a remedy for allegations of isolated assertions that place someone in a false light.
[2.] Volokh's writings do not lose their First Amendment protection simply based on speculation that some readers acted improperly after having read the writings
A writer's First Amendment rights do not disappear even if (as Doe alleges) two readers react to published material with harassment or even threats or violence—or else any newspaper article that casts a person in a negative light would have to be removed if a few people get angry enough as a result. Indeed, even when a film leads to outright violence, it cannot be subject even to after-the-fact civil liability (and therefore, still more clearly, cannot have its continued showing be enjoined):
[W]hen speech … arouse[s] violent reaction on the part of the lawless, the first obligation of government is to maintain the peace and enforce the law, and not to silence or punish the speaker. Were this not the rule, all speech would be subject to the "heckler's veto." … [T]here are people who will react violently to movies, or other forms of expression, which offend them, whether the subject matter be gangs, race relations, or the Vietnam war. It may, in fact, be difficult to predict what particular expression will cause such a reaction, and under what circumstances. To impose upon the producers of a motion picture the sort of liability for which plaintiffs contend in this case would, to a significant degree, permit such persons to dictate, in effect, what is shown in the theaters of our land. (Bill v. Superior Ct. (1982) 137 Cal.App.3d 1002, 1008-09 [citation omitted].)
(See also McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 1002 [holding likewise as to a lawsuit based on music by Ozzy Osbourne that allegedly led to a 19-year-old listener's suicide].) What is true of films is equally true of law review articles and articles on magazine web sites.
To be sure, speech that tends to cause illegal conduct can indeed be punished if it fits within the narrow exception for "incitement" (Bill, supra, at 1006-07; McCollum, supra, at 1000). But that requires a showing that the speech constituted "advocacy of the use of force or of law violation" and was "directed to inciting or producing imminent lawless action" and was "likely to incite or produce such action." (Brandenburg v. Ohio (1969) 395 U.S. 444, 447; NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 927-28 [applying Brandenburg as a limit on civil liability, where it was alleged that some listeners criminally attacked people who had been denounced in speech distributed by the NAACP].) Volokh's writings did not advocate lawless action; they were not directed to producing such action; they were not directed to producing imminent lawless action; and they were not likely to produce such imminent lawless action. (Doe merely speculates that the two calls she received were prompted by the callers' reading Volokh's law review article—the only publication that mentions her full name; and certainly there was no reason to think, when the Hastings Law Journal article was published, that such calls were likely to be imminently caused by that publication.)
[3.] Volokh's articles are not "harassment" under § 527.6
Doe thus has no likelihood of succeeding on her § 527.6 claim, and thus cannot satisfy her second-step burden under § 425.16, because Volokh's writings are categorically protected by the First Amendment. And Doe also cannot satisfy her burden because Volokh's writings are categorically excluded from the statutory definition of "harassment" in § 527.6(b) (emphasis added):
(1) "Course of conduct" is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose … . Constitutionally protected activity is not included within the meaning of "course of conduct."
(3) "Harassment" is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.
This is so for four reasons:
- "Constitutionally protected activity is not included within the meaning of 'course of conduct'"; as explained above, Volokh's article and posts were constitutionally protected.
- Volokh's writings were not "directed at" Doe; they merely mentioned her name as one part of their coverage of the law of pseudonymous litigation. The article and two posts mentioned Doe and her cases only incidentally; the remaining post focused on [one of Doe's cases], but mentioned Doe's last name only as part of a long post that consisted mostly of excerpts from the case.
- The writings served the eminently "legitimate purpose" of discussing cases on pseudonymous litigation, and the particular litigation behavior that led to the decisions in those cases.
- Volokh's own "course of conduct"—publishing a law journal article and three blog posts—would not "cause a reasonable person to suffer substantial emotional distress." If Doe received harassing phone calls, those callers' conduct might cause a reasonable person substantial emotional distress. But the calls were not part of Volokh's own "course of conduct": they came from completely different people whose identities are unknown to Volokh, and their "purpose" was entirely different from Volokh's purpose of discussing the law of pseudonymous litigation. Certainly Doe can point to no "clear and convincing evidence" (527.6(i)) that there was any "continuity of purpose" between Volokh's writings and the harassing phone calls.
[4.] Doe's petition seeks an unconstitutional prior restraint
Doe's petition must thus be struck under § 425.16 even apart from the unconstitutional remedies she seeks, because Volokh's writings cannot form the basis of any § 527.6 order. But Doe's requested remedies highlight the unsoundness of her position. Doe asks (Petition att. 8c) for an order that Volokh
- Remove any remarks, comments‚ or references from any publicly available documents or articles authored by Eugene Voloky [sic] that connect Protected Party's real name with rape or sexual assault;
- Remove any remarks, comments, or references from any publicly available documents or articles authored by Eugene Voloky that connect the Protected Party's real name with the cases in which she has received a protective order to proceed under a pseudonym;
- Cease publishing any remarks, comments, or references that connect the Protected Party with rape or sexual assault;
- Cease drawing public attention to the Protected Party's real name associated with rape or sexual assault.
This would mean that Volokh would be barred from, for instance, discussing or excerpting the federal District Court opinion in [Doe's case], supra, which discussed Doe's allegations of sexual assault, explained why the Court had depseudonymized the case, and mentioned Doe's full name. That case is also now on appeal to the Tenth Circuit, supra p. 3; if the Tenth Circuit affirms, and discusses the underlying facts, then Volokh would be barred from discussing that appellate opinion—indeed, even if it is published and becomes binding precedent. Likewise, Volokh would be barred from posting his various filings in that case (where he is participating as intervenor), or his filings in this case.
This would be clearly unconstitutional when applied to anyone. But it would be especially improper to bar a law professor who specializes in the law of pseudonymity from discussing the details of important cases that involve the law of pseudonymity.
California law recognizes that overbroad injunctions are unconstitutional even in cases alleging "harassment." (See, e.g., Evans v. Evans (2008) 162 Cal.App.4th 1157, 1164, 1169 [holding that "the court's preliminary injunction prohibiting [defendant] Linda from publishing any 'false and defamatory' statements on the Internet is constitutionally invalid," even when the court's rationale was a finding of "ongoing harassment activities" by defendant; "[b]ecause there has been no trial and no determination on the merits that any statement made by Linda was defamatory, the court cannot prohibit her from making statements characterized only as 'false and defamatory'"). And while California courts have allowed injunctions after a trial at which the enjoined speech has been found to be constitutionally unprotected—"once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited 'prior restraint' of speech" (Aguilar v. Avis Rent A Car Sys., Inc (1999) 21 Cal.4th 121, 140)—for the reasons given in Part II.B.1, there can be nothing "unlawful" about reporting on the contents of public records.
A Harassment Restraining Order cannot constitutionally—or consistently with § 527.6—be based on a law review article and blog posts that merely report information from judicial records. Under § 425.16, Volokh is entitled to have Doe's petition struck. Alternatively, the Court should deny Doe's petition based on the facts and authorities given above.