The Volokh Conspiracy

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Free Speech

What's With the Pseudonymity in the National Air & Space Museum / "Rosary Pro-Life" Hat Lawsuit?


The First Amendment case, which I just noted below, is being litigated as Kristi L. v. National Air & Space Museum. Why a pseudonym, given that most lawsuits are litigated in the parties' own names?

Here's the rationale Chief Judge Beryl Howell (D.D.C.) gave yesterday:

Plaintiffs are "students, parents and/or chaperones of Our Lady of the Rosary Church of School in South Carolina" ("Rosary") who are ardently "pro-life." On January 20, 2023, plaintiffs wore hats containing Rosary's name and the term "Pro-Life," while visiting the National Air and Space Museum ("NASM"), where they allege they were "subjected to a pattern of ongoing misconduct by at least five different staff, personnel, employees and/or security guards" because of their "pro-life" message. Plaintiffs sued the NASM and the police/security officers involved, alleging, inter alia, violations of their rights under the First and Fifth Amendments to the U.S. Constitution.

Five of the plaintiffs have now filed the instant motion because they are either parents or siblings of other minor plaintiffs in this lawsuit, and they assert they must also not reveal their full names "so as to further protect the identity of their children and sibling pursuant to Federal Rule of Civil Procedure 7(b) and Local Civil Rules 5.1 and 7." Plaintiffs' motion is granted only because "[i]n cases where the identities of a minor and parent or guardian are 'inextricably intertwined,' courts allow parents or guardians to proceed under pseudonym when suing on the minor's behalf." Asylumworks v. Wolf, No. 1:20-cv-03815, 2020 U.S. Dist. LEXIS 264893, at *8 n.2 (D.D.C. Dec. 23, 2020). Rule 17(c) of the Federal Rules of Civil Procedure requires that a representative of a minor, such as a parent or guardian, sue on behalf of a minor. Fed. R. Civ. P. 17(c). "[U]nless the parent or guardian is granted anonymity, the child's identity would effectively be revealed in the court filing through a combination of the name of the parent or guardian and the child's initials. The protection extended to the child by Federal Rule 5.2(a)(3) and federal law would be eviscerated." Eley v. District of Columbia, 2016 U.S. Dist. LEXIS 147955, *4 (D.D.C. Oct. 25, 2016) (quotation marks omitted)…. [I]t is further ORDERED that plaintiffs, who are not minors, may proceed by using their first names and the first initial of their last names as pseudonyms; … and it is further ORDERED that the defendants are prohibited from publicly disclosing the plaintiffs' identities or any personal identifying information that could lead to the identification of the plaintiffs by nonparties, except for the purposes of investigating the allegations contained in the Complaint and for preparing an answer or other dispositive motion in response.

Allowing parents to proceed pseudonymously to shield their children's pseudonymity is generally the majority view (see p. 1400 of The Law of Pseudonymous Litigation), though there are some dissenting decisions, see p. 1401 n.230. Note that several adult plaintiffs in this case (including some students who were over 18) who aren't relatives of the child plaintiffs sued under their own names.

Gag orders forbidding defendants (including individual defendants) from publicly identifying the pseudonymous plaintiffs are more frowned on, because they are direct speech restrictions, though they too are sometimes issued (see pp. 1375-76). But in this case it seems likely that the individual defendants would learn the plaintiffs' names only through the litigation process, which might make the restriction on publicizing those names more justifiable (see Seattle Times Co. v. Rhinehart (1984)).