The Volokh Conspiracy

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Wait, What About Roe?—Pseudonymity and Facial Challenges to Government Action


I've blogged a lot recently about limits on pseudonymous litigation, and readers will have gathered that I think such litigation should generally not be allowed. But "generally" isn't "always" (much more on that here), nor do I think that it should be always. (I explained in my post about Doe v. Volokh why I thought the underlying case I wrote about there was rightly depseudonymized, but that had to do with particular features of that case.)

And of course we've heard of plenty of pseudonymous cases: Roe v. WadeDoe v. ReedSanta Fe Indep. School Dist. v. DoePlyer v. Doe, and more. None of those Supreme Court opinions discuss pseudonymity at length, but they're obviously open to it. What justifies pseudonymity there, where the legal rule is usually strongly against pseudonymity in other cases?

The chief distinction has to do with the key function of identifying parties' names: the ability of the public to supervise the judicial process, and to monitor whether the factfinding related to the parties is sound. And that's why courts are generally more open to pseudonymity in cases that "present[]" "purely legal … issues"—chiefly the legal validity or invalidity of a such statute (as in Roe). In such cases, the courts conclude, "there is an atypically weak public interest in knowing the litigants' identities." (That's from the Second Circuit's leading pseudonymity case, fittingly titled Sealed Plaintiff v. Sealed Defendant, as well as from the Third Circuit's Doe v. Megless.)

Likewise, to quote Publius v. Boyer-Vine (where I was one of the lawyers representing the pseudonymous Publius, though several years before I started actually focusing on pseudonymity as a topic for scholarship, blogging, or litigation),

[U]nmasking Publius at this time would deprive him of his First Amendment right to anonymous political speech …. [And] the fact that Defendant is a government entity tips the balance in Plaintiffs' favor because of the nature of this case—a legal challenge to the constitutionality of a California statute as applied to the content of Publius' speech [citing Sealed Plaintiff]…. [A]t this stage of the proceedings, the Court finds that the public's interest in this case would be best served by permitting Publius to proceed anonymously.

To be sure, even in some purely legal challenges, a plaintiff's identity might be relevant to some collateral issues (such as whether the plaintiff has standing to raise the challenge); and sometimes courts might deny pseudonymity on these grounds. Moreover, courts have sometimes asserted broadly that "the public[]" has a "legitimate interest in knowing all of the facts involved, including the identities of the parties," and that "[t]he people have a right to know who is using their courts" (see pp. 1369-70 of this article). Perhaps because of this, even when a plaintiff is mounting a legal challenge, pseudonymity isn't automatic (as the quote from Publius shows).

Nonetheless, the Sealed Plaintiff and Publius quotes help explain why pseudonymity is more likely to be available in law-focused cases involving challenges to statutes than in regular fact-heavy cases—libel lawsuits, harassment restraining order cases, and more—where the party's identity is likely to be highly relevant to the factual dispute. And, rightly or wrongly, there is a great deal of legal authority for pseudonymity in such law-focused, Roe-like cases.

Note that I blogged about this a year ago; apologies for repeating myself, but my sense is that people continue to be interested in this question.