The Volokh Conspiracy

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Pseudonymity and Self-Incrimination


From the Seventh Circuit decision Jan. 27 in Roe v. Dettelbach, by Judge Diane Wood and joined by Judges David Hamilton and Amy St. Eve:

This suit is about a person's right to have a gun part called a "drop-in auto sear." John Roe, litigating under a pseudonym to avoid potential criminal liability, filed suit for a judgment declaring that he was entitled to have and keep a drop-in auto sear that he currently possesses….

Before we turn to Roe's arguments, we first must pose a question of our own: should we permit Roe to litigate this case under a pseudonym? Our courts are open to the public. One consequence of that fact is that "[t]he use of fictitious names is disfavored." The Federal Rules of Civil Procedure dictate that "the complaint must name all the parties." "Judicial proceedings are supposed to be open … in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity." That said, in narrow circumstances it is possible to overcome the "presumption that parties' identities are public information, and the possible prejudice to the opposing party from concealment." A party seeking to proceed by pseudonym must "show[ ] that the harm to the [party] … exceeds the likely harm from concealment."

Roe alleges that if he uses his real name, he will face possible criminal prosecution, if it turns out that his possession of the auto sear is unlawful. There are shades of a Fifth Amendment self-incrimination assertion in this argument. We have limited anonymity to cases in which there is a danger of retaliation, and "when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses." On the other side, we have refused to allow plaintiffs to proceed anonymously merely to avoid embarrassment. We have never had to consider whether the threat of criminal exposure should be a factor for district courts to weigh when deciding whether to permit a plaintiff to litigate under a pseudonym. One might argue that the danger of retaliation encompasses the threat of criminal prosecution, but this would be breaking new ground. Cf. Doe v. City of Chicago (7th Cir. 2004) (indicating that we would protect a plaintiff's identity to prevent their sexual orientation from becoming public); Doe ex rel. Doe v. Elmbrook School Dist. (7th Cir. 2011) (protecting plaintiffs' identities to prevent retaliation from the public for religious beliefs), rev'd en banc (vacating on other grounds).

Several of our sister circuits [citing Fifth, Sixth, Ninth, and Eleventh Circuit cases], however, do permit district courts to consider whether "plaintiffs were compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution," when determining whether the plaintiff's privacy interests outweigh the interests of the public and the defendant.

This is a delicate issue—one that we need to approach with care. We conclude that this is not the case in which to make any broad pronouncements about criminal exposure. Roe's anonymity was not among the issues that the parties presented and argued on appeal. Granted, the district court ordered Roe to show cause why he could proceed anonymously, and the parties briefed the matter at that level. The district court signaled its skepticism, explaining that "[e]nforcement of the law is not likely to be a kind of harm that would justify allowing a litigant's identity to remain hidden." It also indicated its intention to comply with our instruction that "the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." But in the end it never formally decided the issue, opting instead to let Roe remain anonymous, though only through the motion-to-dismiss stage.

For good reason, it is unusual for plaintiffs to attempt to litigate in this manner. We in no way encourage it. And even if the public docket reflects a pseudonym, that does not excuse the duty to comply with Circuit Rule 26.1, which requires even an anonymous litigant to disclose her true name on the disclosure statement and file the statement under seal. This rule is necessary "to enable a judge of this court to determine whether he or she [should recuse] from the case" and protect the impartiality of our proceedings….

For more, see The Law of Pseudonymous Litigation, p. 1400.