The Volokh Conspiracy
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Court Upholds Denial of Pseudonymity to Plaintiff in #TheyLied Libel Suit Stemming from Title IX Complaint
"Appellant wants the option to hide behind a shield of anonymity in the event he is unsuccessful in proving his claim, but he would surely identify himself if he were to prove his claims."
In yesterday's Doe v. Doe, defendant Jane Doe had filed a Title IX complaint against fellow Tulane student John Doe: Both Jane and another student (not a party to the case), Sue Roe, had "reported having consensual sex with [John], falling asleep, and waking up to him engaging in sexual activity." Tulane found John "responsible for sexual misconduct" and expelled him, but
[John] alleges that [Jane's] statement to Tulane investigators was false, defamatory, and contradicted by other evidence, and that [Jane] conspired with Sue Roe and submitted false evidence in the course of the investigation.
John therefore sued Jane for, among other things, libel, and sought to proceed pseudonymously, but the District Court rejected that request, and the Fourth Circuit upheld that decision. Much of the Fourth Circuit's analysis turns on the appellate standard of review, which is for "abuse of discretion," so the Fourth Circuit's holding is simply that the District Court didn't seriously err in denying pseudonymity—the Fourth Circuit did not hold that courts must deny pseudonymity in such situations. Nonetheless, the court had some general things to say that I expect will be relevant for future cases:
[1.] Many courts have allowed plaintiffs suing universities based on allegedly unfair Title IX proceedings to proceed pseudonymously (though some have disagreed) (see pp. 1441-48 of this article). But the Fourth Circuit rejected the argument that the connection to the Title IX proceeding justifies pseudonymity here:
Appellant's central argument on appeal is that his case "center[s] around a confidential Title IX proceeding" so it is different than "the garden variety defamation case" and overcomes any public interest in disclosure of his identity. We disagree.
As the district court explained, Title IX challenges have "considerations … [that] do not apply here." Specifically, in those cases, "those accused of sexual assault" were "su[ing] schools or universities pseudonymously when attacking the findings of a university Title IX investigation." "Unlike those cases, [Appellant] is not challenging his expulsion from Tulane or arguing that Tulane violated Title IX or due process during the sexual assault investigation."
Instead, Appellant is suing only a private individual for defamation, and he seeks only declaratory relief and money damages against Appellee. This case is no different than a garden variety defamation case, and it does not present the exceptional circumstances necessary for Appellant to proceed by pseudonym.
[2.] More broadly, the Fourth Circuit suggested that defamation plaintiffs should generally not be pseudonymous:
[W]e fail to see how Appellant can clear his name through this lawsuit without identifying himself. If Appellant were successful in proving defamation, his use of a pseudonym would prevent him from having an order that publicly "clears" him.
It is apparent that Appellant wants to have his cake and eat it too. Appellant wants the option to hide behind a shield of anonymity in the event he is unsuccessful in proving his claim, but he would surely identify himself if he were to prove his claims.
[3.] The Fourth Circuit was also skeptical about John's argument that disclosing his name could cause him "physical or mental harm." (Reputational harm by itself isn't generally enough justification for pseudonymity, see pp. 1457-60 of this article.)
Appellant argued to the district court that "if his identity is disclosed, [he] could be targeted for retaliatory physical or mental harm based solely on the accusation of sexual misconduct." He pointed to "the current social climate," as well as the fact that Appellee "spread false and highly damning claims … to classmates, friends, and Tulane's administration." Thus, he argued that even a finding that Appellee did in fact defame him would not "change the damage done if his request for anonymity is denied" because he will have "to live with this public reputation" which "would be detrimental to [his] physical and mental health." …
In its opinion, the district court recognized that due to "the inflammatory nature of sexual misconduct, the mere accusation … if disclosed, can invite harassment and ridicule." But the district court determined that Appellant failed "to produce 'evidence to support more than a mere general fear of retaliation or mere embarrassment.'" And the district court noted that there did not appear to be any "aggravating factors" such as media exposure that would endanger Appellant if his identity was known…. We do not find that the district court abused its discretion in looking for evidence of a risk beyond Appellant's bare assertion that he could be targeted for retaliation if his name were public….
This seems correct to me; for more on the general subject, see my The Law of Pseudonymous Litigation. I filed an amicus brief in this case, with my students Samantha Frazier, Katelyn Taira, and Jacob Haas, on behalf of the First Amendment Coalition and myself.
Note that Jane Doe didn't seek pseudonymity for herself; John moved for pseudonymity before she appeared in district court, and on appeal she expressly identified herself.
