Pennsylvania Trial Court Rejects Pseudonymity in Defamation Suit Over Sexual Assault Allegations

(as well as other allegations).

Allegheny County Judge Chelsa Wagner's decision last week in Doe v. Hardy (Pa. Ct. Com. Pl.), didn't explain its rationale, but here is the argument that the court rejected, which also includes the background factual allegations:

Plaintiff John Doe and Defendant Brian Hardy are both members of the Phi Kappa Tau ("PKT") Fraternity and alumni of the Westminster College chapter. Doe and Hardy maintained their involvement with PKT and the Westminster chapter following their respective graduations.  They held various positions with the national fraternity and held advisory board positions with the Westminster chapter.

In 2021, Doe raised concerns regarding a loan received for fraternity house renovations and possible self-dealing and policy violations, which involved Hardy.  In retaliation, Hardy took steps to harm Doe's reputation and professional relationships by defaming and disparaging him.

Hardy falsely accused Doe of sexually assaulting a student, being a predator, preying upon vulnerable undergraduate students, victimizing Westminster College students, offering alcohol to underage students, plying underage students with alcohol, regularly visiting the Westminster fraternity house and partying with fraternity brothers, intentionally failing to report fraternity brothers selling drugs and the alleged sexual assault of a student, and having been banned from PKT's headquarters from working in any capacity with undergraduate students.

Hardy made such false accusations to numerous individuals and entities at various times throughout 2022 and 2023, including but not limited to the Westminster College Dean of Students, the Westminster Student Affairs Coordinator, PKT fraternity brothers and officers, Westminster College undergraduate students, investigators and/or officers with the Pennsylvania Bureau of Professional and Occupational Affairs and/or Board of Social Workers, among other entities and individuals….

In a letter dated May 19, 2022, Doe was advised that he was not permitted to enter the PKT fraternity house.  In a letter dated February 24, 2023, Doe was informed that he was prohibited from entering the Westminster College campus moving forward….

While Plaintiff's counsel has failed to find a Pennsylvania appellate opinion addressing whether a plaintiff can proceed under a pseudonym in a factually similar case, federal courts often permit plaintiffs to proceed using a pseudonym where the case involves claims that he or she has been falsely accused of sexual assault. See e.g. Doe v. Princeton Univ., 2023 U.S. Dist. LEXIS 225492, *2 n.2 (D. N.J. 2023); Doe v. Citadel, 2022 U.S. Dist. LEXIS 127707, *5-8 (D. S.C. 2022). There, "[t]o satisfy the criteria for anonymity, a plaintiff must show (1) fear of severe harm and (2) that the fear of severe harm is reasonable." Doe v. Triangle Doughnuts, LLC, 2020 U.S. Dist. LEXIS 109495, *8 (E.D. Pa. 2020) citing Doe . Megless, 654 F.3d 404, 408 (3d Cir. 2011). Federal courts apply a balancing test and consider six non-exhaustive factors:

(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant's identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives.

Federal courts also consider additional factors that disfavor anonymity:

(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigants' identities, beyond the public's interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated.

The federal court analysis is persuasive, particularly here as the factors weigh strongly in favor of allowing anonymity. Doe has sought to maintain confidentiality, Doe's fear is justifiable given the nature of the false accusations, and the public interest is minimal. Accordingly, Plaintiff respectfully requests that the Court exercise its discretion and permit Plaintiff to pursue this matter under the pseudonym, John Doe.

My sense is that courts generally refuse to allow defamation cases to be litigated pseudonymously, partly because pseudonymity generally isn't allowed just to prevent damage to reputation—in a vast range of cases, a party's (either the plaintiff's or defendant's) reputation might suffer from public exposure of the allegations, but our system is generally one of openness, not of pseudonymity.

One notable exception is cases dealing with allegations that a college has wrongly disciplined the plaintiff, often based on allegations of sexual assault; there, courts often do allow pseudonymity to protect the plaintiff's reputation. (The Doe v. Princeton and Doe v. Citadel cases are wrongful discipline cases, not defamation cases.) Doe v. MIT (1st Cir. 2022) explains those cases as being litigated against the background federal principles—see generally the Family Educational Rights and Privacy Act of 1974 (FERPA)—that call for confidentiality of college disciplinary proceedings; this confidentiality justifies applies the same rules for lawsuits against colleges related to such proceedings.

But courts have not extended this logic to defamation claims brought against accusers, including claims that stem from alleged misconduct at college. The Fourth Circuit's Doe v. Doe (4th Cir. 2023) is the leading precedent on this; an excerpt:

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….

[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….

For other cases rejecting pseudonymity for defamation plaintiffs, see Levy v. Shuster (D. Colo. 2023); Doe v. Bogan, No. 1:21-mc-00073, 2021 WL 3855686, at *21 (D.D.C. June 8, 2021); Doe v. Wash. Post Co., No. 1:19-cv00477-UNA, 2019 WL 2336597, at *1 (D.D.C. Feb. 26, 2019); P.D. & Assocs. v. Richardson, 64 Misc. 3d 763, 767 (N.Y. Sup. Ct. 2019); Doe v. Underwood, No. 21STCV46709 (Cal. Super. Ct. L.A. Cty. May 9, 2022). But see Doe v. Predator Catchers, Inc. (M.D. Fla. 2023).

In the Pennsylvania case, defendant is represented by Michael E. Lang (Margolis Edelstein).