The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

10th Cir. Narrowly Reads "Injury Litigated Against Would Be Incurred" Basis for Pseudonymous Litigation

The court concludes that this justification doesn't generally let plaintiffs sue pseudonymously in libel or disclosure of private facts that seek damages.


In the American legal system, parties are generally expected to participate in their own names, but with several narrow exceptions. One of the exceptions is for cases "where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity."

But what exactly does this mean? Read broadly, it might justify pseudonymity in a wide range of cases, especially libel and disclosure of private facts cases, but also many employment cases and more. After all, the typical libel plaintiff could argue that requiring him to sue under his own name would only further publicize the alleged libel. Likewise, many people who are suing their ex-employers could argue that, if they sue under their own names, this will make them look like litigious employees and thus exacerbate the harm of the wrongful firing that they suffered. Yet pseudonymity is in fact not generally available in such cases.

Monday's Tenth Circuit opinion in Luo v. Wang, written by Judge Veronica Rossman and joined by Judges Jerome Holmes and Harris Hartz, makes clear that the exception should be read narrowly, to exclude typical damages lawsuits. The court upheld a district court decision to deny pseudonymity, under an "abuse of discretion" standard:

When a district court has exercised its discretion, "we will reverse only upon a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." We will also find an abuse of discretion when the district court "commits a legal error or relies on clearly erroneous factual findings, or where there is no rational basis in the evidence for its ruling."

But the court also set forth its own view about the law, rather than just deferring to the district court's view:

The district court relied on Doe v. FBI (D. Colo. 2003), where the plaintiff alleged an invasion of privacy related to the FBI's release of a file identifying him as a confidential informant. In denying the plaintiff's request to proceed anonymously, the court found his was "not a case where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." The court reasoned: "The injury of which Plaintiff complains … has already occurred. Plaintiff is not suing in this Court in order to prevent the disclosure of his private File; rather, he is suing for compensation for disclosure that has already happened."

In an unpublished decision, this court has similarly rejected a plaintiff's argument that, by proceeding under his real name, "he would incur the very injury against which he is litigating." Raiser v. Church of Jesus Christ of Latter-Day Saints (10th Cir. 2006). The plaintiff sued the defendants raising claims based on their references to his mental history in previous litigation. Affirming the denial of plaintiff's request to proceed anonymously, this court stated, "Preventing disclosure of his identity is not the basis of Raiser's lawsuit. Instead, he seeks monetary compensation for a disclosure that has already occurred."

Similarly, in Patton v. Entercom Kansas City, LLC (D. Kan. 2013) (unpublished), the plaintiff alleged a radio station had broadcast a false comment from a listener identifying the plaintiff as a "local porn star." The district court denied her request to proceed using a pseudonym, in part, because the injury litigated against would not be incurred as a result of disclosure of her identity. The court reasoned: "Taking plaintiff's allegations as true, the injury already occurred. She is not suing to prevent disclosures from being made; rather, she is suing for compensation for disclosures that have been made."

Ms. Luo contends the district court erred because, in addition to her defamation claim, she also asserted a claim for disclosure of private information. But her [Complaint] did not seek an injunction precluding Mr. Wang from disclosing her private information; she sought only damages for past injury. Ms. Luo nonetheless argues, although she is seeking only compensation for a past disclosure of her private matter, requiring her to proceed under her real name will cause her additional harm. She cites Roe v. Ingraham (S.D.N.Y. 1973), where the plaintiffs challenged on privacy grounds the constitutionality of record keeping under a state controlled-substances act. The district court allowed plaintiffs to proceed anonymously. If the plaintiffs had to reveal their identities before their privacy claims were adjudicated on the merits, the court reasoned, they will already have sustained the very injury they seek to avoid in the litigation.

Roe v. Ingraham is distinguishable because, unlike in Ms. Luo's case, the plaintiffs there sued to prevent the disclosure of their private information, seeking injunctive relief. We conclude Ms. Luo has not shown the district court abused its discretion.

We are persuaded by the reasoning in Doe v. FBI and our unpublished decision in Raiser in concluding that the injury she litigated against—Mr. Wang's previous alleged defamation and disclosure of her private information—would not be incurred because of the disclosure of her identity in this case….

Here's the relevant part of the factual backstory:

Ms. Luo alleged she and Mr. Wang had attended school together in China in the early 1990s, after which Mr. Wang left China to study in the United States. Ms. Luo and Mr. Wang reconnected in China in late 2012, where they began a romantic relationship. Ms. Luo alleged that a mutual classmate, Mr. Chen, sexually assaulted her in China in May 2013. She alleged she disclosed the sexual assault by Mr. Chen to Mr. Wang.

In July 2013, Ms. Luo traveled to the United States at Mr. Wang's invitation and lived with him in Colorado for several months….

Ms. Luo alleged that seven years later she learned that Mr. Wang was making false and defamatory statements about her. According to Ms. Luo, she learned of Mr. Wang's statements through a separate lawsuit she had filed anonymously in California state court. Ms. Luo alleged Mr. Wang had made false statements, both online and in connection with her California lawsuit, that she (1) filed a false police report regarding her lost passport and obtained a refund from a travel insurance company for a portion of [an] airline ticket price, and (2) falsely accused Mr. Chen of sexual assault. Ms. Luo asserted several claims against Mr. Wang, namely, defamation, intentional infliction of emotional distress/outrageous conduct, and unreasonable disclosure of private facts about her sexual assault by Mr. Chen….

This is consistent with what I say in my The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1395-96 (2022).

Katayoun Donnelly (Azizpour Donnelly LLC) represents Wang. I also filed an amicus brief in the case on behalf of the Colorado Freedom of Information Coalition, Colorado Press Association, and myself, supporting the District Court's decision to deny pseudonymity to Luo; and I had intervened below to unseal certain items that had been sealed in District Court. Disclosure: Doe sued me in California, seeking a restraining order that would require me to remove information about her past cases from my writings; I prevailed on my anti-SLAPP motion in trial court, but she is currently appealing that decision.