The Volokh Conspiracy
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"Pseudonymity Is Unavailable" When "Plaintiffs Seek to Gag Sexual Assault Accusers"
From Levy v. Shuster (né Doe v. Roe), handed down Nov. 28 but just unsealed yesterday, following the expiration of plaintiff's time to appeal:
Background. According to the allegations in the First Amended Complaint and Jury Demand …, Plaintiff and Defendant dated for nearly a year while enrolled at Tulane University … in New Orleans, Louisiana. 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 [Ms. Shuster] countless times"; "forced [Ms. Shuster] 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 Ms. Shuster's malicious lies to numerous other students on campus, who proceeded to bully and ostracize Mr. Levy." 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. Ms. Shuster has filed counterclaims for sexual assault, rape, battery, assault, stalking, cyberstalking, intentional infliction of emotional distress, and statutory violations under state and federal law..
The Court denied Mr. Levy's initial motion to prosecute this action pseudonymously on July 17, 2023, reasoning that, as Ms. Shuster and Professor Volokh [who had filed an objection to the motion] contended, no exceptional circumstances supported pseudonymity.
I wrote about that July 17 decision here. Plaintiff then sought reconsideration, but the court said no:
Legal Standard for Pseudonymity. There is a common-law right of access to judicial records, premised on the recognition that public monitoring of the courts fosters important values such as respect for our judicial system. Judges have a responsibility to avoid secrecy in court proceedings because "secret court proceedings are anathema to a free society." There is a presumption that documents essential to the judicial process are to be available to the public, but access to them may be restricted when the public's right of access is outweighed by interests which favor nondisclosure… The United States Court of Appeals for the Tenth Circuit ("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." The Tenth Circuit has "nevertheless recognized that anonymity 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.'" …
Analysis. First, Plaintiff argues that the Court's Pseudonymity Minute Order "understate[d] the case's sensitivity," as this case is not just about a sexual relationship, but about false allegations of sexual misconduct. Pointing to criminal prosecutions and civil suits filed by assault victims, Professor Volokh responds that "courts routinely decide, without pseudonyms, cases in which someone claims that allegations related to sexual misconduct are false." Ms. Shuster agrees. Plaintiff has not provided any binding authority for the proposition that cases implicating allegations of sexual assault that may be false must proceed pseudonymously, and the Court remains unconvinced that the subject matter of this case inherently compels pseudonymity.
Relatedly, Plaintiff contends that, "unlike [cases] involving pure allegations of assault or rape," this litigation "will … entail exploration of differing understandings of sexual encounters over a year-long relationship," including "requests by Defendant for rough sex, BDSM, and role play." But that contention has minimal weight in light of Plaintiff's choice to bring this action in federal court and Defendant's "staunch opposition to being forced to litigate this dispute under the shroud of secrecy." Plaintiff seems to recognize that this argument turns largely on "requests by Defendant" for certain sexual conduct. As Defendant points out, "the alleged statements by Ms. Shuster about her own sexual preferences overwhelmingly implicate her own privacy interests rather than Mr. Levy's and, in light of her opposition to pseudonymity," this Court remains unpersuaded that these allegations warrant reconsideration of its original determination that the circumstances of this case are not exceptional.
Next, Plaintiff contends that he faces a substantial risk of physical harm due to Professor Volokh attempting to publicize the subject matter of this litigation. Professor Volokh responds that any risk of physical harm is prohibitively "speculative." The Court agrees. As Ms. Shuster notes, "Mr. Levy still does not identify a single specific harm that he is likely to face." Mr. Levy thus provides no basis for reconsidering the Court's ruling…. "Because [p]laintiff has failed to provide the [c]ourt with any specific claims of potential retaliation or harassment, the [c]ourt does not find at this time that [p]laintiff faces anything more than a general 'threat of hostile public reaction to [the] lawsuit.'"
Because the First Amended Complaint now explicitly seeks injunctive relief, Plaintiff contends that disclosing his identity will result in the injury he is litigating against. But, as the Court reasoned in the Pseudonymity Minute Order:
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."
The Court respectfully concludes that effectively ameliorating the reputational injury litigated against in this action requires Plaintiff's identity to be disclosed. See Doe v. Doe (4th Cir. 2023) ("If [a]ppellant were successful in proving defamation, his use of a pseudonym would prevent him from having an order that publicly 'clears' him.")….
Finally, Mr. Levy contends that the Pseudonymity Minute Order assigned too much weight to the public interest in disclosure; in his view, "[t]he public interest is fully served here by allowing the parties to litigate using pseudonyms." Plaintiff stresses that, without a university involved in this case, "the presence of exclusively private parties favors anonymity here." Ms. Shuster takes the opposite view, however, suggesting that litigation resulting from university Title IX proceedings more frequently receives pseudonymous treatment. Ms. Shuster is correct. See, e.g., Doe (distinguishing Title IX challenges from private libel litigation). The Court has adequately considered the Parties' identities and the litigation dynamics in its Pseudonymity Minute Order. The Court will not now disturb that analysis on the basis of supposedly overstating a public interest that the Tenth Circuit deems "presumptively paramount."
The Court thus agrees with Professor Volokh that pseudonymity is unavailable "in cases where plaintiffs seek to gag sexual assault accusers." If Plaintiff is categorically correct that "fundamental unfairness comes from requiring an innocent defamation plaintiff to litigate under his own name, further publicizing and associating himself with the false information the defendant has spread," then all libel litigation would be conducted pseudonymously, which it is not, and all legal authorities would favor Plaintiff, which they do not….
