The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The discussion on the Doe v. Volokh thread struck me as quite interesting, and I was particularly intrigued by some commenters taking the view that, while I have the legal right to write about Doe, I shouldn't, because she's asked me not to. Here's one comment that I think captures this view particularly well:
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.
I don't think that's the right approach, but I think it's an important and difficult question, and one that is routinely faced by people who write about court cases, including newspaper reporters, magazine writers, academics, and bloggers. "Be classy" or "be kind" can't really capture the right analysis, I think, perhaps because news reporting (which I use broadly to cover also opinion and analysis related to news, litigation, and the like) is inherently an unkind phenomenon—or perhaps, in aiming to be good to people seeking information, it may necessarily be unkind to people seeking to conceal information. Still, it bears some deeper discussion.
The problem is that, for many court cases, one or both parties would very much prefer not to have the case be discussed. (I set aside the separate point that the case should be discussed accurately; I surely have no quarrel with that.) To give just the most obvious examples,
- Criminal defendants would usually prefer not to have the allegations against them (whether true, false, or, as is often the case, a mix) publicized.
- Civil defendants would often take the same view, for instance if they're accused of malpractice or embezzlement or assault (sexual or otherwise) or a wide range of other offenses.
- Libel plaintiffs would often not want to have the allegedly libelous statements about them further publicized.
- Other plaintiffs (e.g., ex-employees) would often not want the defendants' responses ("I fired him not because of his race, as he alleges, but because he was sexually harassing coworkers") publicized in association with the plaintiff's name.
- Still other plaintiffs (again, such as ex-employees) would often not want future employers to know that they had sued someone, since they think many employers prefer not to hire litigious workers.
Often the concerns are about reputation and future employment prospects. But sometimes people might be worried that coverage of accusations against them (e.g., that they had raped someone, or that they had falsely accused someone, or that they had defrauded someone) might lead to harassing phone calls or e-mail, to threats, to vandalism, or even to physical attacks. Indeed, these risks are probably higher for mainstream newspaper articles than for blog posts (or certainly than for law review articles), just because such articles tend to have a higher readership.
What should a reporter, or a blogger, or an academic make of all this?
[1.] One possibility is to take the view that parties' names should be included only if it's "necessary." But in most situations, it's not actually strictly necessary to include the parties' names: We could just replace everyone's names with pseudonyms in our stories (even if the underlying cases aren't pseudonymized).
Yet that's not how newspapers do this, and I don't think there's any reason that bloggers or law review article authors should do it, either. Such pseudonymization would probably make our articles come across as somewhat less trustworthy. And beyond that, I think that many reporters and the like take the view that it's good for readers to know the names of people involved in various controversies. True, a few readers might misuse that information even in criminal ways. Still more readers might overreact to what are often just allegations (e.g., by shunning or not dealing with people just because of the accusations). But other readers may take this information into account in a reasonable and thoughtful way, and newspapers and blogs try to convey the truth to those readers.
Moreover, court cases in the U.S. are generally captioned using the parties' real last names. If I'm writing an analysis of Smithski v. Jonesovich, people who are interested in that case will generally search for those particular names. If I omit the name of the case, or omit the parties' names from the discussion, my article or post won't be found, and the information and insight (such as they are) in that article or post won't be available to people interested in the case. I don't think there's any real obligation, as a matter of manners or morals and not just of law, to make the article thus unfindable by people who are interested in the case and searching for the case's name.
Just to give an example drawn from the Doe v. Volokh litigation: Doe's appeal of a decision that depseudonymized her (the decision that led to my writing about her in the first place) will soon be considered by the Tenth Circuit. I expect that the Tenth Circuit will affirm, and thus write a significant (and quite likely precedential) opinion on the law of pseudonymity, including Doe's real name. (I'm an intervenor in that case, and did the bulk of the briefing as to why pseudonymity is indeed improper.) I plan on writing about that case, as I do about other important cases in the area. That writing would be much less effective and useful if it didn't use the case name and thus Doe's real name.
To be sure, this post and my earlier one don't cite the relevant cases, precisely to avoid mentioning Doe's real name. This is chiefly because I have a motion opposing pseudonymity pending in Doe v. Volokh, and I think that, out of respect for the judge's ability to meaningfully decide that motion, I ought to err on the side of not including Doe's real name in my posts while that motion is pending. (Note that I'm certainly not legally barred from including Doe's real name in these posts; there is no gag order on me, nor for that matter any motion even authorizing Doe to proceed pseudonymously.)
But there are substantial costs to this decision, I think: It makes it harder for people interested in Doe's other cases to find my post and read the analysis in it. And it makes the post less credible, because I talk only vaguely about Doe's other cases (including the case that led to my writing about her and thus to her attempt to gag me) rather than actually citing and linking to them. I'm willing to accept these costs in the rare situation where I have a motion pending on the subject; but I think it would be bad to incur the costs in writing about Doe and those like her more generally.
[2.] Another possibility is to take the narrower view that the names should generally be removed when the person asks. That is consistent with some customs in ordinary life, but, for much the same reason as those given above, I don't think this should apply to news/opinion/analysis coverage of litigation.
Moreover, in practice this may end up being not that much narrower a view. True, in my experience few people ask to have their names removed from blog posts (or, I expect, online newspaper articles), but I think that this is largely because they know that they're likely to get a "no." If it were accepted that simply asking to have your name removed would entitle you to have it removed (again, even just as a matter of morals or "class" rather than law), many more people would ask.
[3.] Still another possibility is to take down the names of litigants who say that they had gotten threatening messages (or other such reactions) based on the newspaper article, blog post, law review article, and the like. But I'm pretty skeptical about that. Part of the reason is that it's often hard to know whether that sort of harassment is real, or just made up by someone who is actually just concerned about reputation and employability. As the Grey's Anatomy writer hoax story reminds us, people sometimes lie about being victimized in various ways.
And surely it must be tempting: Here you are, the subject of a story about a criminal prosecution or a lawsuit. The story mentions (however accurately) allegations that you think are unfair or highly private or what have you. You think that the reason you aren't finding a job is that prospective employers Google your name and see the story. (Maybe the real reason is that you aren't that well-qualified, or you come across badly in interviews, but of course we'd all much prefer to focus less on that possibility.) You learn that a publisher has a custom of removing names from stories if the story has supposedly led to threatening messages. Many people—even otherwise decent people—would, I expect, fake a threatening text or voice-mail if that's what it takes to (in their view) put their lives back together.
Plus beyond that, let's think again about the newspaper article about an accusation that might indeed lead to such occasional threats. A local professional is accused of mistreating a vulnerable client. A local teacher is accused of being cruel to a student. Someone is accused of racist insults. And, for the clearest example, someone is sued alleging sexual assault or especially child molestation.
Would we take the view that the newspaper shouldn't report the person's name in a story about that criminal prosecution or civil lawsuit, because of the likelihood that some readers (however tiny a fraction of the tens or hundreds of thousands who will see the article) will misbehave based on that article? Maybe we should, but I'm hesitant to say so.
[4.] To be sure, I should note that many publications do have a policy of not naming alleged sexual assault victims, and in Doe v. Volokh, Doe claims in various lawsuits to have been sexually assaulted on various occasions. I too would normally not have published her name. But, though, in the case I wrote about, the Magistrate Judge at first allowed her to sue pseudonymously (over alleged libel by a defendant who had accused her of, among other things, falsely alleging rape), he then changed his mind (in the opinion that I wrote about), partly on the grounds that,
Plaintiff has filed numerous lawsuits, several of which involve circumstances similar to this case. In some she has been permitted to proceed anonymously; in others, she has not. Regardless, Defendant maintains that Plaintiff is a "vexatious litigant." This goes directly to Plaintiff's credibility, and Defendant should not be hampered in pursuing that defense. Nor should the public be prevented from reaching its own conclusions in this case.
The District Judge affirmed that decision; and my view is that, given the circumstances that the judges described (including, as the District Judge notes, plaintiff's having tried to publicize some of her cases herself), members of the public should indeed have the information allowing them to draw inferences about Doe's position in her various cases.
[5.] Another possibility might be to include parties' last names, which again are needed to normally identify a typical American court cases, but not their first names. Indeed, there are times when I don't include parties' first names in discussing or quoting a case. But in this instance, I thought it important that my law review article include the litigant's full name, because the last name seems fairly common; including the litigant's full name is important to show the links between the litigant's various cases. (Recall that my law review article was discussing, among other things, how pseudonymity interferes with tracking potentially vexatious litigants, and I needed to establish that this was indeed a serious concern as to this particular Jane Doe.)
[6.] Finally, I should acknowledge that, as with most ethical matters, there 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. (For instance, my understanding is that some newspapers do remove from their archives stories about people's old and minor criminal convictions, or sometimes make them harder to find via Google searches for the people's names.) And of course that judgment may well be mistaken, and not entirely consistent from case to case.
Still, I thought it would be helpful to write up some general thoughts of mine on this subject, and see what others think about this.