Court Refuses to Order Me to Remove References to Frequent Litigant from Law Review Article

My argument: "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."

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….

[I.] Introduction

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….

[II.] Argument

[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:

1. 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).'"
2. 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:

1. 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)).
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)).
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:

1. "Constitutionally protected activity is not included within the meaning of 'course of conduct'"; as explained above, Volokh's article and posts were constitutionally protected.
2. 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.
3. 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.
4. 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.

Conclusion

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.

Comments

[Kazinski]

I really doubt this:

"has published my personal information online and the death threats came from his readers/haters."

Probably the worst thing that happened was that someone called her a "clinger".

[RENATA the rational]

No, and this shows you do NOT follow law.
The Supreme Court rebuked STRONGLY Kamala Harris for her California AG forcing anonymous donors into the public by publishing their names and addresses and fomenting hatred and attacks.

[Mr. Bumble]

"Rational" in what world?

[neurodoc]

Weren't you banned in the past by EV from these boards for violating basic rules for participation hee?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I'll add the missing final paragraph:

Congratulations to Professor Eugene Volokh, the Gary T. Schwartz Distinguished Professor of Law at UCLA.

🙂

[Mr. Bumble]

Is Doe represented by counsel in this or any of the other actions she has brought over the years?

[Eugene Volokh]

Not in this case, and not in most other cases (though yes in at least one case).

[neurodoc]

Doesn't she come across as the classic pro se litigant?

[gormadoc]

Most of the takedowns you've posted directed at yourself seem to be routine and formulaic. Do you have other more involved litigants who target you over longer periods of time?

[Eugene Volokh]

Thankfully, no (or at least not yet).

[Jaypd]

Good. I still need you around for our issues up here in Idaho

[David Welker]

My take on this is:

1.) You had a legal right to use her name.

But:

2.) Shouldn’t have used her name as a matter of politeness.

It may be true and is likely true that none of the abuse she received came as a result of publishing this information. But it also seems as though she may have experienced real fear and discomfort as a result of the publication, to the extent that it has disrupted her life. That may be due to her own illogical or incorrect thinking, but (giving her the benefit of the doubt that she is telling the truth) I don’t see any benefit to causing a person unnecessary distress.

All that said, I don’t think that EV is anyway at fault, either morally and definitely not legally. I just think that with the benefit of hindsight, publishing the name was probably a mistake. But if EV disagrees with that opinion, I would certainly respect his point of view. I am really thinking about what I would do.

I was surprised by the quality of this pro se litigants legal work. She isn’t doing a bad job for a pro se litigant, even though I think she should lose.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I have no problem with using her name. If you want the public to back your court decisions, the public must know who you are. It is not fair to the taxpayer and public to allow someone to hide vexatious litigation behind anonymity, and whether or not that happened here, the only way to detect abuse of the judiciary is open records. This applies to the rich and poor alike.

[Stephen Lathrop]

Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf — If you want the public to back your political advocacy, the public must know who you are.

[Michael P]

Lathrop, if you want people to back your policy advocacy, you should post things that are least sometimes make a lick of sense.

EV has written a long series of posts about why the US court system disfavors anonymity. And on the political advocacy front, we have... the Federalist and Anti-Federalist Papers, among others. One of these things is not like the other.

[RENATA the rational]

But who decides 'vexatious"?
Was Kamala Harris right to force the publication of donor information for groups she did not approve of? SCOUTS said "NO"
If you read American Founding history the preferred method of debate was anonymity so that it was the issue itself that was decided and not who said it or why they said it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Only you and Stephen are talking about politics.

[Squirrelloid]

Except you need to use her name to connect her to all the court cases. Especially in a journal article, where it's essential evidence to the fact that it's the same litigant.

The very idea that someone's name in a journal article would lead to harassment is just nonsense, and the fact that this person even found out her name had appeared in a journal article shows a type of person who's actively hunting down reasons to be offended. Virtually all academic journals (bar the top couple in any field) are obscure publications primarily read by specialists in their area of focus.

[Shamie Ervin iv]

Politeness? Oh, BS!

[QuantumBoxCat]

So this woman contacts you and asks you to stop writing about her, and to remove your prior writings about her. You respond that you have a legal right to to write about her. She files suit against you, you prevail, and then you write about the whole affair, thus adding to your public writings on the woman who initially sought to have you not write about her.

You're such a classy person.

[Eugene Volokh]

I appreciate your candid response, and likewise with David Welker's; but I'm not sure how considerations of "politeness" and "class[iness]" play out here.

In my blog post, and in my article, I'm offering basically news coverage of the world of pseudonymous litigation. Doe's past litigation is an interesting illustration of how someone can file multiple pseudonymous lawsuits in a way that makes it harder for adversaries to examine such past lawsuits for possibly helpful information. In particular, it makes it harder for people to identify a Doe as a potentially vexatious litigant: for instance, in California defendants can try to get a plaintiff declared a vexatious litigant after she had engaged in five recent unsuccessful lawsuits -- but if a plaintiff sues under pseudonyms, that makes it much harder for defendants to identify all of the plaintiff's past lawsuits. A news story noting the plaintiff's lawsuits (and the fact that a judge has depseudonymized the litigant, concerned about such past lawsuits) can inform the public about the situation.

Is there really an obligation of "classiness" or "politeness" that would obligate someone to take down such stories, or to stop posting such stories in the future? Are people who file multiple court cases entitled (as a matter of classiness or politeness) to "have [us] not write about [them]," if they simply ask? Is that a standard we would apply, for instance, to a newspaper that may write about someone who would rather not be written about?

I should add, by the way, that, because she is a frequent and tenacious litigant, Doe is already involved in various lawsuits that I would normally deem to be newsworthy, and that I expect to write about. Of course, if someone sues trying to get an order to take down portions of an academic article -- or of blog posts -- I would normally write about that (and, as I noted at the start of my post, I think I owe it to readers to inform them of such lawsuits against me). Doe is also appealing her Colorado case, which is likely to lead to a significant Tenth Circuit opinion on pseudonymity; I expect to write about that. Doe is also trying to get a court opinion in one of her other cases sealed or redacted; I expect to write about that, since again that's the sort of thing I normally cover on this blog. Do I have an obligation (even if only one of "classiness" or "politeness") not to write about those cases, because she's asked me to?

[David Welker]

Well, I think that you can address the problem and even refer to this exact case without naming the specific person.

If you are concerned that she is a vexatious litigant, I think it would be reasonable to inform someone that is going up against her in litigation so that she can be declared a vexatious litigant.

I want to distinguish my, I hope very mild criticism, from QuantumBoxCat. I don’t think you are doing anything wrong. And I think it is GOOD to continue to write about the case. It is very interesting and useful to do so. Even if writing about it were to cause distress.

It is just that it seems clear this woman has experienced a high level of mental distress. (Which isn’t your fault.) So, if it were me, I would avoid using her name UNLESS it was somehow intellectually relevant in your personal opinion. For example, In my personal opinion, I think this post is just as good and useful without using her name.

But the second you feel like there is some sort of principle at stake, I would feel free to use her name. For example, if you felt it were important so she could be identified as a vexatious litigant. (Although personally I would communicate that privately.)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

But without knowing her name, one cannot determine her to be a vexatious litigant. Publicity is required before the fact; it cannot work in the opposite direction.

[RENATA the rational]

Why is this not prior restraint before publication?

[Eugene Volokh]

1. Thanks, but just to be clear, here's how it works with pseudonymous litigation: Say that the same Jane Doe sues John Smith tomorrow. John Smith can generally learn Doe's name as part of the lawsuit, since he has to know her identity to defend himself (unless it's some facial challenge to a government action or some such, but let's set that aside); but the rest of us can't.

I therefore can't e-mail this future Smith to inform him about Doe's past cases, since I won't know that she's the one suing him (since, again, I won't know the real name of the plaintiff in that particular case). But given that I've written about Jane Doe's lawsuits under her real name (and so long as I don't remove that), if Smith Googles her name he might be able to connect the dots, figure out that she might at that point be a vexatious litigant, and file the proper motions (or at least find out about her possible misconduct in her past cases). That's why there's really no substitute for publicly identifying her.

2. More broadly, let me ask you this: My sense is that for most criminal cases, identifying the accused by name will tend to cause him distress. Likewise for many civil defendants, for instance if someone is being sued for alleged malpractice or fraud or assault or what have you. Likewise for many civil plaintiffs, even if the person hasn't been allowed to sue pseudonymously.

Should newspapers generally feel some "politeness" objection not to name the litigants in such situations? Or should they feel free to name them, despite the likelihood that this will distress them, but redact the articles once the people complain (e.g., if they say that two people have left them harassing voice-mails after the article was published)?

I can see the argument for doing that, to be sure. I'm just skeptical about it, especially since that's not the norm for most cases.

(To be sure, I realize that many newspapers don't publish the names of alleged rape victims, and I generally don't, either; perhaps your comment is specifically focused on that, though I didn't read it that way. In any event, in this case, I decided to follow the lead of the federal judges, who decided to depseudonymize her because of her pattern of past litigation, which created at least some question about the soundness of her allegations.)

[David Welker]

So, in light of there being no substitute for publicly identifying her, if you think there is a significant probability that she is a vexatious litigant, then I think you probably should identify her.

A couple of points. The cat is already out of the bag. Any mental distress she has experienced has already been experienced. She should have built a thicker skin by now.

Any fears she has about retaliation (from whom?) are greatly exaggerated. And based on the quality of her briefing (which is high for a pro se litigant), I suspect she understands that as well on some level.

When I read the post, I got a little queasy because of the great lengths and energy this person put into this. At first, I thought it was privacy, but the more I think about it, it also could be some other agenda. I feel like there is a mismatch between her having the intelligence to put together her briefing and her apparently irrational assessment of risk such that I wonder if there is an underlying sincerity issue. On the other hand, I have seen highly intelligent people act irrationally. I feel like there is something possibly suspicious about this person and there nearly obsessive need for secrecy, but I am not sure. But you know much more than I do with respect to the credibility assessment.

I want to be clear. My issue with publishing her name had to do with the great lengths she went to in order to keep it secret. But that could also be precisely why it should be revealed.

Another thing. I feel as though you have handled this question in a thoughtful manner. In doing so, you have shown her respect whether or not you choose to publish her name.

Overall, regardless of your assessment of her sincerity, I think you probably should publish her name. If she is a vexatious litigant in your opinion, I would definitely do it. In California, there is a list of vexatious litigants and it is public. Otherwise, if you think she might be a vexatious litigant or there is something suspicious about her (which is where I kind of lean with very limited information right now), it is a public service. And if that assessment is wrong and she is just an extremely private person willing to go to extreme lengths to fight for her privacy, I think she is well on her way to getting over it anyway at this point. That ship has sailed.

[Gandydancer]

"In California, there is a list of vexatious litigants and it is public."

She sure sounds like a vexatious litigant to me. Is the window closed for EV to do the public service of getting her name on that list?

[Eugene Volokh]

A motion to put someone one the list requires (basically) five completed unsuccessful lawsuits in the last several years, though I believe that the judge has discretion whether to grant that motion. My sense of the matter (complicated by her pseudonymity) is that Jane Doe is at four now, but will be at five soon, as some of her appeals come to an end.

[Stephen Lathrop]

Welker, is it a necessary function of a law review article to identify a vexatious litigant? I thought law review articles addressed principles of law, not breaking news. Volokh writes:

Is that a standard we would apply, for instance, to a newspaper that may write about someone who would rather not be written about?

I suggest EV ought to research that question, by submitting to publish his allegations about a vexatious litigant in a respectable newspaper, and letting professional editors make the call. They might well agree with him. They might not. But an important difference would be that they would be asking, as EV does not, whether it is appropriate to have as a news reporter a person who is personally involved in the story.

Also, and more generally, it is always important in the case of Professor Volokh to keep track of his commentary in context of his broader advocacy. He is a practitioner of getting to preferred legal destinations by construction of slippery slope arguments. Experience and insight gained by doing that have made him an expert on the subject, who has even published a taxonomy about the practice.

One direction EV's past broader advocacy has indicated is a desire to persuade courts to recognize a privilege to republish adjudicated libel, if the republisher was not a party to the adjudicated case. In the age of the internet, that would amount to an end to practical libel remedies for those deliberately defamed.

It would be child's play for a malicious attacker to set up a network of confederates who were not targeted by an initial libel suit, and simply keep the defamatory ball rolling as retaliation against any victim who sued. Of course, libelers who undertake defamation as a political tactic would be the earliest and most vigorous adopters of that tactic.

That context may supply the answer to the otherwise puzzling question why EV insists on calling out the name of this particular person in a law review article. He may be in process to provoke a case to advance his broader attack on libel law generally.

[David Nieporent]

As usual, this bizarre rant misunderstands the concept of "adjudicated libel."

[Stephen Lathrop]

Nieporent — Explain? My recollection is that term was the one EV chose when he objected to the notion of being targeted against republication, because he was not a party to the case. How have I got it wrong? I have said nothing to suggest the case in this thread is an example of adjudicated libel.

[David Nieporent]

I wasn't talking about the case in this thread. I was, like you, talking about your claim that EV has a "desire to persuade courts to recognize a privilege to republish adjudicated libel, if the republisher was not a party to the adjudicated case. "

You seem to think that if A sues B for libel for saying X and wins, that this establishes as a matter of law that X is false — that X is "adjudicated libel" — and therefore nobody else should be able to say it. That's just a misunderstanding of what happened in the A vs. B case.

[Stephen Lathrop]

Nieporent — What you put in quotes was from memory, but it was my attempt to offer a faithful paraphrase of EV's take on a legal issue he seems to think is controversial. He has advocated that he should be free to republish allegations found libelous by a court, if he has not been a party to the case. Why don't you ask him about it. We might both learn something, but he tends not to reply to me.

But so I can understand your point better, is it your view that a court record showing that X was false and defamatory is immaterial to the question whether a republisher recklessly disregards the truth by republishing X despite knowing about the previous decision?

[David Nieporent]

You are simply repeating the error that I pointed out you were making. Maybe a concrete example will make it clearer.

I write: "Stephen Lathrop is a sadist who kicks puppies for sexual gratification." You sue me for libel. You testify that the statement is false. I offer no admissible evidence to support the statement; maybe I was just passing along a rumor, maybe my lawyer did a bad job in gathering evidence, maybe I never appeared in the case and defaulted. Or maybe I offer some evidence — witnesses testifying that you admitted it to them, or that they saw you doing it — but a jury doesn't believe those witnesses. Whatever. I lose the case; judgment is entered against me in your favor.

You seem to think that the issue of whether you kick puppies for sexual gratification has been "adjudicated libel" — that is, it is legally established that the statement is false, and that a court has ruled as a matter of law that you do no such thing. And, therefore, you think that if Prof. Volokh later writes, "Stephen Lathrop is a sadist who kicks puppies for sexual gratification," he has written something already proven to be false, defamatory, and constitutionally unprotected. But that's simply a misunderstanding of what has happened.

The judgment against me was not a formal proclamation by our nation's judicial system that you don't kick puppies. It was a decision about me, my case, and my liability towards you. Prof. Volokh is entitled to present his own evidence if you want to bring a claim against him.

And if you're a public figure, or if the allegedly defamatory statement was made about a matter of public concern rather than a mere private personal matter, then in order to prevail you'd have to prove 'actual malice.' And just because you can prove that I made the statement with actual malice does not mean that you can prove Prof. Volokh also did.

[Eugene Volokh]

David Nieporent: That is correct, and I just wanted to note to other readers that it's indeed a matter of the Due Process Clause (as well as of the law of collateral estoppel). That a matter was adjudicated against Betty in Alan v. Betty, generally speaking, is binding on Betty. But it's not binding against third party Charlie, who is entitled to his own day in court on the subject. To quote Richards v. Jefferson County (1996),

The limits on a state court's power to develop estoppel rules reflect the general consensus "`in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.' ... This rule is part of our 'deep-rooted historic tradition that everyone should have his own day in court.' As a consequence, "[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings."

.

Of course, if the question is whether Charlie is negligent about the falsehood of a statement, or is reckless about it (i.e., knows the statement is quite likely false but just barrels on despite that) may be relevant in the Alan v. Charlie libel lawsuit, if Charlie is aware of the decision in Alan v. Betty and especially if the decision followed a real trial, rather than was just a default judgment.

But I say "may be," because Charlie might have various immunities. For instance, if Charlie hosts a blog, and Betty was a commenter on the blog, Charlie would be immune under 47 U.S.C. § 230(c)(1) for Betty's comment, regardless of what was decided in Alan v. Betty. Maybe that's bad policy, and maybe § 230 should be amended, but that is indeed the current rule.

Likewise, if Charlie is covering the Alan v. Betty lawsuit, he can generally note what the lawsuit is about, even when that means accurately quoting the underlying libel (e.g., in saying, "Alan sued Betty over Betty's claim that Alan is a sadist who kicks puppies for sexual gratification"). But in any event, the Alan v. Charlie lawsuit would have to proceed on its own; Charlie isn't estopped from litigating the matter just by the Alan v. Betty decision.

Naturally this is an oversimplification; there are some situations where Betty and Charlie are "in privity," and Charlie is indeed bound by the judgment against Betty. To quote Richards, "For example, a judgment that is binding on a guardian or trustee may also bind the ward or the beneficiaries of a trust." But what is laid out above summarizes the general principle.

[Stephen Lathrop]

Nieporent, my second paragraph posed a specific question which you ignored. I put that same question again, to you and to Professor Volokh. This is me, quoting myself:

But so I can understand your point better, is it your view that a court record showing that X was false and defamatory is immaterial to the question whether a republisher recklessly disregards the truth by republishing X despite knowing about the previous decision?

[KenveeB]

"But an important difference would be that they would be asking, as EV does not, whether it is appropriate to have as a news reporter a person who is personally involved in the story."

But he wasn't personally involved in the story until after he wrote the initial article/posts. He's involved now, yes, because she sued him, but before it was just academic interest based on a good example case in an area he's regularly written on.

[Davedave]

I'm not sure it has anything to do with law, but where being right - and you are - conflicts with being mean to a mad person (by their lights, at least), then sometimes we should decide to focus on something else and let them have their mad.

I'm not saying this is definitely a case like that, but such cases exist - the balance depends on the triviality or otherwise of the effect of someone's sanity deficiency on others.

[Mr. Bumble]

"I’m not saying this is definitely a case like that, but such cases exist – the balance depends on the triviality or otherwise of the effect of someone’s sanity deficiency on others."

As cited below, do you consider $100,000.00 in legal fees trivial?

[Davedave]

You seem unable to distinguish between the general and the specific. I was discussing one and not the other.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You are staring with the assumption that she is a classy upstanding person; #BelieveTheVictim.

You have zero reason for such an assumption.

[Eugene Volokh]

Apropos that, for whatever it’s worth, here’s a recent Recommendation of a Magistrate Judge in one of Doe’s cases (though I anticipate Doe to object to it before the District Judge). I should note that this decision happened after I declined to take down the references to her; but it also didn’t surprise me, given what I had seen of her cases.

On September 22, 2022, Defendant conducted the deposition of Plaintiff in my courtroom. Although an unusual procedure, I believed this was necessary because of Plaintiff’s history of contumacious behavior in this lawsuit. During that deposition, Plaintiff committed a direct contempt of court by refusing numerous times to obey my oral Order to answer questions. As a result, the only remedy that would serve justice is dismissal of this action with prejudice, along with costs to the Defendant, which I hereby recommend.

This diversity tort case between two natural persons, which began with a three-page Complaint on September 11, 2020, has 217 entries on the docket sheet. Plaintiff has unreasonably refused necessary efforts to conduct discovery and prepare this case for its conclusion. The Court has even tried to assist Plaintiff by arranging pro bono counsel, who ultimately withdrew from the case.

Docket 132 outlines the initial efforts of Plaintiff to refuse relevant discovery requests and other information.... I held a discovery conference on August 24, 2022, at which I ordered Plaintiff’s deposition to occur in my courtroom on September 22, 2022. Also at that discovery conference, Defendant’s counsel outlined various orders of this Court that Plaintiff had violated,.... I permitted Defendant’s counsel at that conference to question Plaintiff on the record. I also questioned Plaintiff. I believe Plaintiff’s responses to counsel’s and my questions were evasive at best and deceiving or untrue at worst.

Furthermore, it has been obvious that Plaintiff is not drafting her own motions and responses in this case. Defendant moved to require Plaintiff to reveal the author of her filings. I denied that request but ordered that “[a]ny ghostwriting of anything Plaintiff submits to the Court must be acknowledged by the signature of the attorney involved.” It is my belief that Plaintiff has violated this Order with everything she has filed since September 15, 2022.

Thereafter, Defendant subpoenaed relevant records associated with Plaintiff from the Los Angeles Sheriff’s Department and JP Morgan Chase Bank, N.A. Plaintiff moved to quash those subpoenas. [The District Judge] denied those motions. Plaintiff tried again to stop this discovery with an “Emergency Motion.” The Motion was clearly drafted by someone other than Plaintiff. She did not reveal the author. [The District Judge] denied this motion as well.

Plaintiff also attempted to avoid her deposition. I denied that request. This leads us to the most current, and serious, violation by Plaintiff. As noted above, on September 22, 2022, Defendant conducted her deposition in my courtroom. During the deposition, Defendant’s counsel asked me into the courtroom and explained that Plaintiff was refusing to answer questions concerning her travel to the United States. In the Complaint, Plaintiff alleges that in July 2013, she came to the United States at Defendant’s invitation. At the deposition, Defendant was exploring this allegation and asked Plaintiff to identify the legal basis for her entry into the United States. Plaintiff refused to answer. I found the question sufficiently relevant for discovery purposes and ordered Plaintiff to answer. I advised her of the following:

1. If she thought the answer might incriminate her, she could invoke her Fifth Amendment right to refuse to answer. She affirmatively stated the answer would not involve any potential criminal conduct and declined to invoke her right to remain silent.

2. I would be willing to order Defendant out of the courtroom, restrict this line of questioning to “attorneys’ eyes only,” instruct counsel not to disclose to anyone the information provided by Plaintiff without further order of the Court, and mark the transcript as restricted. Plaintiff declined.

3. If she persisted in disobeying my Order to answer the questions, this could be construed as a contempt of court, and the sanction could include, without limitation, dismissal of her lawsuit with prejudice. She understood.

In knowing and deliberate disobedience of my direct Order after these options and my advisement were provided to her, in my presence she refused to answer the questions concerning immigration status on the grounds of “relevance.” Indeed, she refused to answer many questions on relevance grounds despite my Order that she may not do that. She fully understood my Order and its meaning. She intentionally and knowingly violated that Order, which leads to this Recommendation.

Rule 37(b) of the Federal Rules of Civil Procedure permits the Court to enter sanctions against a party for failure to cooperate in discovery.... Plaintiff’s evasive conduct has cost the Defendant (a private individual) in this basic tort case over $100,000 in attorney’s fees. Her refusal to provide relevant discovery will deprive Defendant of his right to defend this case. She has also caused an enormous expenditure of judicial resources, including vacating an entire day’s proceedings so her deposition could be held in my courtroom. She is knowingly, personally, and solely responsible for her actions, and her culpability is without question. I warned Plaintiff for five minutes to re-think her refusal to answer the questions and, in fact, ordered her to answer them numerous times. I told her that her refusal and disobedience could result in dismissal of her action with prejudice. Finally, after repeated disobedience of Court orders (not simply in this Court but in others as well—see ECF 94, noting “Plaintiff has been sanctioned several times for her litigation conduct” and citing cases), including a direct contempt, there is no option short of dismissal [of the lawsuit] that would accomplish the ends of justice....

[David Welker]

Interesting. Now I am leaning heavily towards publish. I think a definite public service.

By the way, my comment that there seemed to be something suspicious about her was just based on her briefing in the original post. Seeing this, well, I wouldn’t say I am less suspicious, that is for sure!

[Gandydancer]

Diversity is our strength, and we should import more of it.

Not.

[David Nieporent]

Gee, I wonder why people think Gandydancer is a racist.

[Eugene Volokh]

By the way, apropos importing, the foreign-born in all this include not just Doe but the person she's suing in Colorado (who's also from China), that person's lawyer (who's from Iran), and me (who's from the Soviet Empire).

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Dang! IANAL and don't read much about legal matters other than here, but I didn't think anyone would behave anywhere near this badly. It makes me wonder what her major malfunction is. I understand SRG's comment about DSM-5 now.

[David Nieporent]

Furthermore, it has been obvious that Plaintiff is not drafting her own motions and responses in this case. Defendant moved to require Plaintiff to reveal the author of her filings. I denied that request but ordered that “[a]ny ghostwriting of anything Plaintiff submits to the Court must be acknowledged by the signature of the attorney involved.” It is my belief that Plaintiff has violated this Order with everything she has filed since September 15, 2022.

This is interesting in light of the comments of people above about the quality of her briefing in Prof. Volokh's case.

[SarritaA]

Yep, he loves to harass unrepresented women. Just like he loves to justify the sexual abuse of women also….

“ It[unwanted sexual touching of a woman’s breasts or vagina by a stranger] may be both arousing and disturbing; it might in fact be disturbing partly because of the arousal, or of the possibility of arousal.”

https://crookedtimber.org/2006/05/06/you-just-flunked-out-of-feminism-101-wait-stupid-also-just-failed-out-of-moron/

[Rev. Arthur L. Kirkland]

It seems reasonable to believe that consideration of this issue, and related conduct and ostensible principles, should take this into account.

[SRG]

I don't think "vexatious litigant" is in DSM-5 but I suspect that something isn't quite right with these people. They shouldn't be able to hide that fact.

Between her and Cesar Sayoc, who knew that law professors would attract such meshuggeners?

[Dan Schiavetta]

Eugene does not look good here, and will look a lot worse if something really does happen to this lady.

[Mr. Bumble]

Given what we know about this "lady" so far I doubt there were any threats other than from her own imagination.

[Rev. Arthur L. Kirkland]

In a (very) slightly different world, the apparent taste for delusional conspiracy theories and disaffected, antisocial nature would have made Jane Doe part of the Volokh Conspiracy's target audience.

[juris imprudent]

You appear to be part of that audience Arthur. It isn't hard to understand your sympathy with the plaintiff.

[Michael P]

You can go ahead and read the rest of the comment thread, we'll wait.

[Dan Schiavetta]

He did not have to mention her name in his article. And if I was contacted by someone who said that she had been subjected to death threats and would I please remove her name, I would do so. It's a no brainer. Whether she was crazy or not.

If it's desired to shut this lady up and stop her from causing other people expense, the people she sues can do that through their own research and in camera court filings.

[Mr. Bumble]

Your sympathy for the crazy bitch (apologies) is duly noted, however the fact that she has been abusing the legal system repeatedly while attempting to hide behind anonymity justifies revealing her name.

[Stephen Lathrop]

What are we to make of a blog commenter who writes under a pseudonym to angrily denounce a desire from someone else for online anonymity?

[Mr. Bumble]

Make of it what you will. Equating a blog comment to a civil action that cost innocent defendants both time and money is pretty lame, even for you.

[Michael P]

He did not have to mention her name in the article, true, but doing so was a public service. It's worthwhile to identify by name people who try to abuse mechanisms for judicial pseudonymity.

Lots of public figures have received death threats -- does that mean they should not be named in critical commentary? I don't understand why you would be so compliant to an arbitrary, and perhaps unhinged, request.

[David Nieporent]

If it’s desired to shut this lady up and stop her from causing other people expense, the people she sues can do that through their own research and in camera court filings.

Prof. Volokh has explained repeatedly that allowing her to remain pseudonymous prevents the people she sues from doing that.

[Jason Cavanaugh]

You are the one who does not look good here.

I hate agreeing with Michael P, but you need to read the rest of the comment thread and be quiet.

[Michael P]

I think that "[need to] be quiet" goes too far. If he reads the rest of the comment thread and maintains his position, that's his right. If he does, though, I hope he elaborates on the logic, because that position seems unjustified (to me and I think a lot of the commenters here).

[Shamie Ervin iv]

Oh, cry me a river.

[Archibald Tuttle]

Furthermore, it has been obvious that Plaintiff is not drafting her own motions and responses in this case. Defendant moved to require Plaintiff to reveal the author of her filings. I denied that request but ordered that “[a]ny ghostwriting of anything

That's curious. Why would an attorney draft the arguments but not want his/her name signed? I think there must be more to the story that we haven't heard.

[tkamenick]

There has been a push to allow for attorney ghostwriting as part of the deregulation of the legal industry. Generally, the idea is not "I'm embarrassed by this and don't want to be associated with it" but "I want to sell a la carte legal services at a lower price for people but I don't want to appear as attorney of record and run an entire case for this person, because they couldn't afford it"

[Eugene Volokh]

Archibald Tuttle: Here's the Tenth Circuit's answer to that question, from Duran v. Carris (10th Cir. 2001):

This court is concerned with attorneys who "author[] pleadings and necessarily guide[] the course of the litigation with an unseen hand." Fed.R.Civ.P. 11(a) requires that "[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or if the party is not represented by an attorney, shall be signed by the party." Mr. Snow's actions in providing substantial legal assistance to Mr. Duran without entering an appearance in this case not only affords Mr. Duran the benefit of this court's liberal construction of pro se pleadings, but also inappropriately shields Mr. Snow from responsibility and accountability for his actions and counsel....

[Under Fed.R.Civ.P. 11(b), there is a duty of lawyers' c]ompetence[, which] requires that a lawyer conduct a reasonable inquiry and determine that a filed pleading is not presented for an improper purpose, the positions taken are nonfrivolous, and the facts presented are well grounded.... [And b]esides the imprimatur of professional competence such a signature carries, its absence requires us to construe matters differently for the litigant, as we give pro se litigants liberal treatment, precisely because they do not have lawyers.

[Rev. O.T. Medal]

EV, thank you for providing additional details about Doe and her vexatious litigation in the comments . Your initial post made it clear that you were right on the legal questions -- which were not a close call under California law. The additional information in the comments made it clear why you did not believe Doe's claims that your work prompted harassing calls; and also established that this was not a case in which any consideration of "politeness" would have counseled in favor of granting Doe anonymity.

BUT, the question remains, would you ever consider voluntarily acceding to litigants' requests to remove mention of their names from you blog posts? Here's a hypothetical. Cat and Mouse are involved in one-off litigation. The pleadings are full of interesting and salacious details; and the case raises important questions about requests for pseudonymity and sealing. No one else is writing about the case. You post a long piece full of details (including the litigants' true names) available from public court records. Cat then contacts you to explain that he or she received harassing calls from 10 different callers in the week after your post. In this hypothetical, would you be willing to accommodate Cat's request that you (a) edit your prior post to remove the true names of Cat & Mouse; and (b) agree to refer to them only as "Doe" and "Roe" in future posts about the case?

[John F. Carr]

I could imagine a suspended or disbarred attorney not being able to officially represent the party.

[Goju]

I could imagine a suspended or disbarred attorney not being able to officially represent the party.

Or an attorney not wanting to be sanctioned.

[Dan Schiavetta]

I've never actually drafted papers for a pro se litigant, but I've had my brain picked and I've given advice on how to write more effectively.

[Eugene Volokh]

I think that's generally fine.

[Dan Schiavetta]

Thanks! (no sarcasm)

[tkamenick]

Good for you. The courts don't seem to think this person should get to me pseudonymous so I see zero reason for you to humor her.

[Shamie Ervin iv]

OMFG, even our dear law professor is not immune to f&m applications for restraining orders.

I had a vexatious litigant after me from 2011 until 2018 -- two NCGS 50C restraining orders, 5 applications for show-cause (including 4 that were issued by a judge), and two cyberstalking warrants with sadistic overtightened handcuff arrests, mugging, DNA seized, and hostile gynocentric judges. After the judges tired of her she sold out and left town and moved to another state. Other than being in court voluntarily i was in court under court order 29 times in a courthouse infested with wild-eyed far-left misanderers. BTW, I was NEVER convicted of anything, never threw in the towel, never gave up, and most of my victories (always Pyrrhic) were voluntary dismissals. My last mandatory court appearance -- on cyberstalking warrant no. 2 -- was in front of a hostile judge who could nothing but acquit because of the admissions of the prosecuting witness. I represented myself and x-examined the piXX out of her. At least this judge, as opposed to all the others, let me ask her leading questions. This NFH who always called me a NFH on her FB shortly tried for another show-cause on her 2nd RO and the judge sent her packing. Shortly she & her toxic airbnb were sold and gone.

[Shamie Ervin iv]

Nice... and thanks for the "edit" feature.

[YepThatGuy]

Is there a name for the application to blog posting and litigation of the well-established social doctrine "Don't stick your [redacted] in crazy?"

[Eugene Volokh]

YepThatGuy: I appreciate your point, but I don't think it would be right for me to decline to write about someone because I thought they might sue me (or try to get me criminally prosecuted).

[Shamie Ervin iv]

Yes. Because then you become a party to extortion. If you give in to her and let her deprive you of something you are entitled to say, then you have given her your blessing to extort others, and yourself again too. Sometimes it is reprehensible to let someone alter your behavior, particularly if it is accompanied with a threat.

I can remember many times shutting my mouth when I should have spoken.

[Michael P]

Usually that saying advises the imprudence of establishing intimate relations with mentally unwell individuals. I don’t think that scholarly writing — or most blogging — is closely analogous to that kind of intimacy, so the advice does not seem quite apposite.

I believe there is another saying, one that might apply here, about touching some topic with a ten-foot pole.

[Rev. O.T. Medal]

Reposting my note from a minute ago to make sure it is the right space in the queue.

EV, thank you for providing additional details about Doe and her vexatious litigation in the comments . Your initial post made it clear that you were right on the legal questions — which were not a close call under California law. The additional information in the comments made it clear why you did not believe Doe’s claims that your work prompted harassing calls; and also established that this was not a case in which any consideration of “politeness” would have counseled in favor of granting Doe anonymity.

BUT, the question remains, would you ever consider voluntarily acceding to litigants’ requests to remove mention of their names from you blog posts? Here’s a hypothetical. Cat and Mouse are involved in one-off litigation. The pleadings are full of interesting and salacious details; and the case raises important questions about requests for pseudonymity and sealing. No one else is writing about the case. You post a long piece full of details (including the litigants’ true names) available from public court records. Cat then contacts you to explain that he or she received harassing calls from 10 different callers in the week after your post. In this hypothetical, would you be willing to accommodate Cat’s request that you (a) edit your prior post to remove the true names of Cat & Mouse; and (b) agree to refer to them only as “Doe” and “Roe” in future posts about the case?

[Mr. Bumble]

So nice he posts it twice; however I think your hypothetical falls short and given the vast quantity of real life cases isn't usually helpful.

"Here’s a hypothetical. Cat and Mouse are involved in one-off litigation."
This was not a case of a one-off. Doe's continued filings of meritless claims (while hiding behind anonymity) caused real disruption to many lives and wasted valuable court time which could better be spent on real matters of significance and deserves to be called out.

[Rev. O.T. Medal]

Hey Mr. Bumble,

I agree with your analysis of the particular case addressed by EV. Given Doe's vexatious litigation, "calling her out" (as you put it) was fully justified.

The point of my hypothetical about Cat and Mouse is to explore whether the same decision would be reached in a more difficult case with more sympathetic litigants.

[Eugene Volokh]

Rev. O.T. Medal: You ask an excellent question, and your comment and some others prompted me to put up this post on the bigger picture (though it doesn't actually answer your question directly). I'm inclined to think the answer should generally be no, but, as the last portion of my post notes, I'm open in principle to considering various facts (which your question, being abstract, understandably didn't include).

But let me ask you this question in turn, which is I think a bit more realistic. Jane Smithski sues John Jonesovich, accusing him of calling her racist and sexist names (e.g., while he was her lawyer or doctor or what have you). A newspaper (which has many more readers than my blog does, especially those in the city where the two of them live) covers the story; it's the only one covering the story. Jonesovich says he's gotten harassing calls from 10 different callers (not implausible given the nature of the allegations). Should the newspaper edit its article to remove Smithski's and Jonesovich's true names, and agree to refer to them only as Doe and Roe in future posts about the case? (Would your answer be different if the accusation was that Jonesovich embezzled from her or beat her or what have you?)

[Rev. O.T. Medal]

EV, I enjoyed the new post. In light of the final point you make in that post, I don't think we need to parse out our dueling hypotheticals. You say, "[T]here might not be hard and fast categorical rules here. Sometimes things might turn on my own judgment calls about the importance of a matter, the character of the people asking to have their names removed, the age of the post, and more."

That's a good approach. More so than a newspaper, which may well have to draw some internal bright lines, you have the discretion to make case-by-case judgment calls on requests to remove names from your own blog posts. You made the right call with respect to the litigious Ms. Doe.

It seems you would be willing to consider a future request from a litigant seeking anonymity on its own terms -- weighing, in part, the litigant's credibility and the nature of the harm they claim to be experiencing as a result of being named in your blog posts. That sound fair to me.

[Stephen Lathrop]

Professor Volokh, you omitted to mention whether Jane Smithski or John Jonesovich, are public policy makers, celebrities, or otherwise doing something to make their controversy newsworthy. If not, then your example is less realistic than you suppose. It probably does not get into the newspaper.

The point matters because tacit in your writing is that you comment to justify rules of practice for everyone on the internet. There is no useful equivalence to justify applying newspaper practices—predicated on prior editing, limited circulation, and no freely available indexing at the push of a key—to govern the far different medium of internet publishing—predicated on no editing, unlimited world-wide circulation, and imposingly efficient indexing. That is before we get to questions which the Joe Keyboards of the internet would denounce as elitist. There is nothing particularly realistic about such an ill-sorted comparison.

[GKHoffman]

I only wish you had filed a motion to pseudonymize yourself. "Joe Roe" has a pleasant ring to it. As does Doe v. Roe.

[ReaderY]

A very tiny quibble.

It would appear the plaintiff here failed to prove causation. She didn’t introduce any evidence to support her otherwise completely speculative opinion that the harassment ahe claims to have experienced was caused by anything Professor Volokh wrote, as opposed to some other cause.

This would mean her state law claim fails on state law grounds.

So shouldn’t a court abstain from addressing the constitutional claim and decide the matter purely on these very simple state law grounds? Shouldn’t constitutional questions be reached only if there is an underlying legal claim to start with?

It’s very understandable that a professor of First Amendment law, as a professor of first amendment law, would immediately jump to the First Amendment implications of a case like this. But should a judge do that? Should an attorney as an officer of the court?

[Eugene Volokh]

Interesting argument, but I don't think that quite works here. Sec. 527.6 itself provides that the "course of conduct" element shall not include "Constitutionally protected activity." I think that means that there's no preference for which theory the court should consider first; they are all questions of state law.

[Publius_2020]

Not sure we needed every feint and thrust in a brief on the anti-SLAPP motion. Seems like EV is bending over backwards to show the complete record, but I was mostly thinking "where's the judge's opinion throwing this out?"

Alas, that minute order was beyond sparse.

[Eugene Volokh]

Yup, that's apparently the norm in California court (and in my experience in most state trial courts), and for understandable reasons.

[Goju]

Suppose there is a lawyer, or several, assisting her for whatever their reasons. If the defendant in one of her cases where to learn their identities, could the defendant file suit against those lawyers seeking sanctions and damages? What would be the likelihood of such a suit succeeding?