Pseudonymity Tentatively Allowed in "Wet Farts" Wrongful Discipline Lawsuit Against Columbia

When may plaintiffs in highly politically controversial cases sue pseudonymously, in order to avoid public hostility?

Generally speaking, plaintiffs who want to use the civil justice system must sue in their own names, even when that might damage their reputations and professional prospects. Someone suing an ex-employer, for instance, may worry that future employers might not want to hire a known litigious employee; or he may expect that the employer will argue that he was fired for sexual harassment, theft, incompetence, etc., allegations that will then be connected with his name (even as he argues that they are false and that the real reason for firing was, say, race discrimination). Likewise, a libel plaintiff may worry that the lawsuit will just further amplify the libelous allegations. But that usually doesn't suffice for pseudonymity, unless the plaintiff can show a serious (more than merely speculative) risk of physical harm stemming from being identified, or the case involves a purely legal rather than a factual challenge.

But when the case involves controversial topics that might arouse public disapproval, cases are split. For instance, a recent case rejected pseudonymity where plaintiff argued that his challenge to Twitter policies might draw attacks on his children from "unbalanced people in the world" who "hate President Trump supporters." Another rejected pseudonymity for plaintiffs objecting to a school's "Black Lives Matter" posters. But other cases allowed pseudonymity for challenges to school board policies on teaching views associated with Critical Race Theory, or on gender identity. And cases are split as to whether challenges to vaccine mandates may proceed pseudonymously.

Now let's throw in another factor: What if the case is a challenge to a university disciplinary proceeding? When it comes to challenges to sexual misconduct findings under Title IX, most courts have allowed pseudonymity (see Appendices 4a & 4b of The Law of Pseudonymous Litigation), though the Seventh Circuit has just strongly disagreed with that majority view. Should pseudonymity be more broadly allowed in all university disciplinary proceedings, whether or not they involve sexual misconduct?

One past case had indeed allowed pseudonymity where university students had sued over having been disciplined for engaging in actions that were supposedly "racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities." And now we see something similar in a high-profile case arising out of the protests, Doe v. Columbia Univ. (S.D.N.Y.).

In Doe v. Columbia, the Complaint alleges (recall, as always, that these are allegations):

This action arises out of the egregious miscarriage of justice against Plaintiff, a Jewish student at Columbia University and former Israeli Defense Forces soldier, through the University's biased misconduct proceedings, which rushed to silence Plaintiff and brand him as a criminal for harmlessly exercising his freedom of expression in opposition to a pro-Hamas pro-Palestine rally, while turning a blind eye and refusing to take action against the rally organizers, who have called for violence and destruction of an entire legal state, have called for the genocide of the Jewish people generally, and have specifically threatened Jewish students on Columbia's campus….

On January 17, 2024, Plaintiff attended one of the unsanctioned pro-Hamas pro-Palestine rallies on campus, and, as a harmless expression of his speech, he sprayed into the air a novelty, non-toxic "fart" spray named "Liquid Ass" and "Wet Farts" which he purchased on Amazon for $26.11.

Almost instantly, the University rushed to silence Plaintiff, placed him on interim suspension from the University, and published a statement to the University community which accused Plaintiff of a hate crime and placed Plaintiff's safety in grave jeopardy.

When Plaintiff sought help from the University due to the antisemitic death threats that he had been receiving, the University remained silent. As a result, Plaintiff was forced to leave his apartment and had to cover his face anytime he went outside in fear of his safety.

In contrast, when asked about the unsanctioned pro-Hamas pro-Palestine rally, a University spokesperson merely stated, "The University continues to support students who wish to express themselves through speech."

Indeed, from inception, Columbia's investigation and adjudication process was flawed, biased, and deficient. Throughout the university misconduct process, Plaintiff was subject to unfair and discriminatory treatment. Plaintiff was presumed guilty from the start, due to his affiliation with Israel, while the other non-Israeli students who attended the protest were not disciplined in any manner.

As a result of Columbia's flawed and biased investigation and adjudication process, Plaintiff was found responsible for disruptive behavior, harassment, and endangerment, and sanctioned to suspension from the University, forever marring his educational file with an improper finding of responsibility.

By employing discriminatory, biased, and pre-determined presumptions of Plaintiff's guilt from the outset due to his affiliation with Israel, and by imposing an unreasonable sanction, Defendant displayed discrimination on the basis of Plaintiff's national origin in violation of Title VI of the Civil Rights Act of 1964, as well as New York state law.

The lawsuit was just filed two weeks ago, so any decision on the merits is far away. But one question arises at the outset: Can plaintiff sue pseudonymously, or must he include his name?

On April 22, Judge Jesse Furman tentatively allowed plaintiff to proceed pseudonymously, and barred defendants from publicly identifying plaintiff, "but only temporarily":

Defendant—and any non-party who seeks, and is granted, leave to intervene for purposes of being heard on the issue—shall file any opposition to the motion within two weeks of Defendant's entering a notice of appearance [which happened April 29 -EV]; any reply shall be filed within one week of any opposition. In the meantime, the Court reserves judgment on whether to grant the motion on a more permanent basis….

Here's an excerpt from plaintiff's argument in favor of pseudonymity:

[1.] Plaintiff should be permitted to proceed under a pseudonym given the highly sensitive and personal nature of this litigation. As is evident from the Complaint, the claims which form the subject of this Complaint involve graphic details of antisemitism. Plaintiff respectfully suggests that the need for privacy of the involved students significantly outweighs the general public's need to know their identities.

Further, Plaintiff does not contend that the revelation of his name would result in mere embarrassment. Rather, Plaintiff notes the highly sensitive issues involved with claims of antisemitism. Moreover, recognizing the delicate nature of cases such as the one at bar, courts across the country have routinely permitted similarly situated plaintiffs—students falsely accused of university policy violations dealing with sensitive topics/hot button issues—to proceed by pseudonym, acknowledging the great danger such plaintiffs face in proceeding under their own names, and the futility of the lawsuit if the allegations will be forever publicly associated with plaintiffs' names.

As the District Court for the Northern District of New York has explained with regard to those accused of university policy violations involving sexual assault, "protecting the anonymity of sexual assault victims and those accused of committing sexual assault can be an important safeguard to ensure that the due process rights of all parties are protected."

In this case, Plaintiff's allegations deal with a policy violation involving topics that are just as—if not more—sensitive as in cases where pseudonym status has routinely been granted. Indeed, if Plaintiff's identity were to be revealed, his safety would be placed in grave danger, especially in light of the antisemitic hate crimes being committed throughout the country….

[2.] Although the issue at the heart of this case is Columbia University's discrimination against Plaintiff and its failure to follow its own policies, the subject matter of antisemitism is a highly volatile issue in the public discourse right now and identifying Plaintiff would unduly place him at risk for physical or mental harm. This risk is evidenced by the fact that Plaintiff has already, even without public identification, received death threats at Columbia and has been forced to leave his apartment in fear of his own safety. Plaintiff thus has a concrete, reasonable fear of further physical harm and retaliation should he be publicly identified in this filing.

The nature of the subject matter at hand, and the social and political climate surrounding acts of antisemitism, strongly warrant protection of the parties by permitting them to remain anonymous. As other courts have noted with regard to analogous sexual misconduct claims, "it stands to reason that there are some persons who would seek to inflict physical or mental harm on Doe if they learned of his real name, especially in light of the ongoing national conversation about sexual misconduct on college campuses."

[3.] The revelation of Plaintiff's identity would result in significant, irreparable harm to Plaintiff, the exact type of which he seeks to avoid by the commencement of this lawsuit.

Specifically, if Plaintiff were required to reveal his identity, any ultimate success in this matter would be negated by the disclosure of his name. Any public internet searches of his name would ultimately turn up results including this lawsuit and the false—yet damning—allegations against Plaintiff, as well as Columbia's finding of responsibility. In that regard, even if Plaintiff were to achieve his objective of removing the sanction from his academic records, potential future employers, educational institutions, and even future romantic partners would all have access to these allegations at their fingertips—all it takes is a Google search.

The likelihood of being hired (or accepted to a graduate institution of high caliber) is almost nil when an applicant must contend with the social stigma associated with being found responsible and dismissed for the perpetration of a hate crime, regardless of whether the decision is ultimately overturned as the result of litigation. As one commentator has noted, employers "take a huge risk by hiring a former harasser. If I'm advising my client, I'm telling them not to make the hire unless they are convinced the allegations are false. And even in that case they are taking a risk." See Jon Hyman, Esq., Sexual Harassment is the Hiring Scarlet Letter, Workforce.com (Feb. 8, 2018), available at https://www.workforce.com/2018/02/08/sexual-harassment-hiring-scarlet-letter/ (recounting story of former professor who resigned amid accusations of sexual misconduct, left the country, found new work in China, and was then petitioned by students at new university based on prior, unproven allegations).

Surely this Court can take judicial notice of the prolific rise of the #FreePalestine movement, which has created a sea change in the nation's views on the Israel-Palestine conflict, and more importantly, on the social, professional, and personal implications of being publicly accused of a crime against protestors. Social media is now regularly weaponized against supporters of Israel, oftentimes before the allegations are even tested in any kind of reliable, unbiased proceeding.

In other words, the harm that Plaintiff faces should he be publicly identified in this matter could not possibly be ameliorated by an eventual adjudication in his favor: the existence and publication of the allegations alone would forever impact his life in concrete, detrimental, life- altering ways that go well beyond any sort of immaterial, low-level "embarrassment." …

The stigma associated with the University's adjudication in this matter, especially due to the intensified Israel-Palestine conflict, is sufficiently damaging to constitute a legally cognizable harm, and serves to underscore Plaintiff's fear of disclosure in the instant matter as much more than a mere personal desire to avoid embarrassment….

The harm that Plaintiff fears if his name is revealed in this case is concrete, severe, and lasting, and would ultimately render any subsequent victory on the merits hollow, as the very damage he seeks to avoid by this lawsuit would be incurred as a result of the disclosure. In the current social climate, a mere allegation of a hate crime alone is enough to ruin a person's life and career. Plaintiff should not be forced to risk his entire professional future and personal reputation in order to have his case heard on the merits. His interest in privacy by far outweighs the public interest in open proceedings….

[4.] Plaintiff in the instant case is a young man, not yet graduated from college and at the very inception of his adult life. As discussed above, permitting disclosure of his identity, and thus subjecting him to the crushing stigma of having been found responsible for committing a hate crime, would effectively end his professional career before it has even begun, and could severely detriment his ability to participate in all of the ordinary endeavors of adult life. Indeed, it is not as if Plaintiff has a professional reputation or network, spouse, or other forms of social and career safety nets in place that could cushion the blow of the allegations against him; to the contrary, the very reason for bringing this action is because Columbia's findings and actions will irreversibly impair Plaintiff's ability to pursue his personal, professional, and academic future if not reversed and remedied immediately….

[5.] "[W]here a plaintiff attacks governmental activity, for example a governmental policy or statute, the plaintiff's interest in proceeding anonymously is considered particularly strong [, because in] such circumstances the plaintiff presumably represents a minority interest (and may be subject to stigmatization), and there is arguably a public interest in a vindication of his rights." Plaintiff is suing Columbia University, a partially federally-funded private college. Although Columbia is not necessarily a government entity, it is also not an entirely private corporation. In the instant case, there is a strong public interest in vindicating the rights of male students at Columbia, given Columbia's non-compliance with federal law and its own policies….

[6.] The primary public interest in the instant action is Columbia's treatment of Israeli students, whether its University conduct processes violate state and federal law, and whether there is a pattern of bias and discrimination against Jewish and/or Israeli students. Although the specifics of the case are, of course, relevant to this determination, Plaintiff's identity in and of itself has no relevance to the public interest. For example, Plaintiff is not a public figure, nor a supervisory employee of the University, such that the public would have an interest in learning his specific identity. As such, there is a weak public interest in learning Plaintiff's identity, and the public's interest in this matter would not be furthered by disclosing Plaintiff's identity….