No Pseudonymity for #TheyLied Plaintiff Suing for Libel and Invasion of Privacy Over Rape Accusations

From Judge Nina Wang yesterday in Doe v. Roe (D. Colo.); note that I filed an objection to plaintiff's motion for pseudonymity:

According to the allegations in the Complaint …, Plaintiff and Defendant dated for nearly a year while enrolled at Tulane University …. After their relationship ended in October 2021, Defendant complained about Plaintiff's behavior to Tulane, which issued mutual no-contact orders the next month. Defendant also sought a protective order in Louisiana state court, claiming that Plaintiff stalked, harassed, shoved, and threatened her.

In both proceedings, Defendant did not claim that Plaintiff sexually assaulted her. Plaintiff and Defendant agreed to a state court order, pursuant to which Tulane's no-contact order became permanent, and Plaintiff agreed to withdraw from Tulane and cease all contact with Defendant. Plaintiff alleges that he never sexually assaulted Defendant, and that he left Tulane voluntarily.

In August 2022, following a "period of reflection," Plaintiff enrolled in Front Range Community College in Boulder, Colorado, although he planned to transfer to the University of Colorado ("CU Boulder") after his first year there. At CU Boulder, Plaintiff rushed and sought to pledge an unspecified fraternity, and paid its dues.

Shortly after the fraternity received his bid in September 2022, Defendant sent text messages to the fraternity's social chairs claiming, among other things, that Plaintiff transferred schools "not through his own choice, but because he was kicked out of Tulane for rape and stalking"; "sexually assaulted and raped [Defendant] countless times"; "forced [Defendant] into very uncomfortable sexual situations, forcing [her] to do painful things which [she] objected to"; "was abusive in every way"; "ha[d] been physically violent with [Defendant]"; "threatened [Defendant's] friends and family and attempted to cut [her] off from every person in [her] life"; and was "a threat to every woman's safety on [CU Boulder's] campus."

The fraternity "terminated" Plaintiff immediately, based on Defendant's allegedly defamatory claims, and refused to refund a deposit he paid. Plaintiff's college friends "cancelled him." Additionally, fraternity members "spread [Defendant's] malicious lies to numerous other students on campus, who proceeded to bully and ostracize [Plaintiff]." Plaintiff was ultimately "forced to withdraw" from CU Boulder "and return home to California." Meanwhile, Defendant has returned to Tulane, where she continues to "publish[] her false and malicious lies to numerous students there." Seeking damages, Plaintiff has brought three claims arising out of these allegations: defamation, intrusion on seclusion, and unreasonable disclosure of private facts.

The Complaint identifies the Parties with pseudonyms—"John Doe" for Plaintiff and "Jane Roe" for Defendant…. Plaintiff has filed the Motion to Restrict … [seeking permission to proceed pseudonymously]. {Plaintiff states that he "anticipates later moving for a Protective Order requesting that Defendant be prohibited from ever disclosing his identity." That contemplated relief is not before the Court at this time.} … Defendant joins Professor Volokh in opposing pseudonymity and further notes that she "will allege that she was sexually assaulted in her counterclaims," and "is choosing to proceed using her own name so as to ensure that the larger and important issues raised by this case—including ensuring that survivors of sexual assault not lose their voice through shame or the threat of legal action—are advanced." …

The United States Court of Appeals for the Tenth Circuit … has explained that "identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized. It is subject to a decision by the judge as to the need for the cloak of anonymity." To justify use of a pseudonym, "the risk that a plaintiff may suffer some embarrassment is not enough." … "… [A]nonymity in court proceedings may sometimes be warranted, but it is limited to 'exceptional circumstances,' such as cases 'involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity.'" Most recently, the Tenth Circuit discussed these standards in considering whether a district court erred in denying a plaintiff's request to proceed under a pseudonym where the underlying circumstances implicated an alleged sexual assault. See Luo v. Wang (10th Cir. 2023)….

[T]he allegations at issue are sensitive and personal in nature, in that they involve details of the Parties' sexual relationship. At the same time, … Defendant opposes pseudonymity, and … takes the position that the "public has a keen interest in [this case's] subject matter, including in examining the use of litigation by perpetrators of sexual assault to curtail the #MeToo movement and to silence speech about sexual misconduct that has proven so critical in changing norms that have for far too long allowed sexual abuse to continue unabated." …

Next, Plaintiff appears to overstate the likelihood of physical harm. The initial Motion to Restrict referred only to the "academic," "financial," "mental," "emotional," "reputational," and "psychological" harm suffered by Plaintiff. Only in his Reply, once confronted with the applicable legal framework, does Plaintiff invoke "physical manifestations of emotional harm," based on alleged bullying and harassment, as well as increased attention to this case. Plaintiff cites several paragraphs of the Complaint to show that he has suffered or will suffer physical harm, but, upon review, the closest the Complaint gets is alleging generally that CU Boulder students "proceeded to bully and ostracize" Plaintiff. Even if the Court assumes that the bullying at issue had a physical component—which does not necessarily follow from the surrounding allegations, or the pairing with the word "ostracize"—the Complaint alleges in no uncertain terms that Plaintiff responded by "withdraw[ing] and return[ing] home to California." Plaintiff thus faces no further risk of harm at CU Boulder, physical or otherwise, by his own account.

With regard to the public discourse, Plaintiff speculates that denial of pseudonymity will result in "inevitable public attention," which will make physical harm likely. However, Plaintiff does not explain why that is so, and the case Plaintiff cites for support is distinguishable. In it, the court observed that the threat of harm to the movant was "all the more serious given that this case has drawn significant media attention, which means many people across the country are aware of Roe's accusations against plaintiff," and "some responses to the media's reporting on this case have been vitriolic." Doe v. The Rector & Visitors of George Mason Univ. (E.D. Va. 2016). Here, in contrast, Plaintiff recognizes (albeit in supporting a different argument) that the subject matter of this case has not been "publicized in any newspapers or online fora," and "there is nothing about his status that would heighten any public interest beyond the normal public interest in any judicial proceedings."

Third, Plaintiff does not seek injunctive relief in the Complaint, and the alleged injury involving his time at CU Boulder has already occurred. See Luo (district court did not abuse its discretion in "concluding that the injury [plaintiff] litigated against—[defendant's] previous alleged defamation and disclosure of her private information— would not be incurred because of the disclosure of her identity"). Plaintiff seeks damages for past conduct by Defendant. Plaintiff's argument that "prevailing in this litigation would be undermined if he were required to reveal his identity," ignores that by prevailing in this litigation, Plaintiff will have proven the defamatory nature of Defendant's previous statements and will likely want to publicize his own name. As the United States District Court for the Eastern District of North Carolina observed, "[i]t would be fundamentally unfair for [a] plaintiff to be able to 'clear his name' and wield a potential judgement against [his accuser] to his advantage but hide under a shield of anonymity if unsuccessful." Doe v. Doe (E.D.N.C. 2023).

The Court also acknowledges that pseudonymity could potentially prejudice Defendant in light of her stated intention to litigate a counterclaim for sexual assault "using her own name so as to ensure that the larger and important issues raised by this case—including ensuring that survivors of sexual assault not lose their voice through shame or the threat of legal action—are advanced." Indeed, unlike other cases, Plaintiff is not seeking to proceed pseudonymously so as to match his accuser's pseudonymous status.

For all these reasons, this Court concludes that Plaintiff's arguments supporting pseudonymity fail to overcome the strong presumption of public access. Chalmers v. Martin (D. Colo. 2021) ("The supposed harm from being the target of a lawsuit alleging sexual abuse is not enough to justify shrouding this case with a veil of secrecy."). As the Volokh Response points out, libel cases concerning sexual assault are routinely brought in plaintiffs' own names. Although, in some respects, Plaintiff's "desire [to proceed under a pseudonym] is understandable, our system of dispute resolution does not allow it."

The result seems correct to me, for reasons given in this amicus brief my students and I field in the pending Doe v. Doe (4th Cir.). That case, which also deals with whether a libel plaintiff could sue anonymously, is the appeal of the Doe v. Doe (E.D.N.C. 2023) case cited by Judge Wang. For more on this general issue, see my The Law of Pseudonymous Litigation. You can also read, in this case, plaintiff's Complaint and his motion for pseudonymity.