My Identifying Would-Be Jane Doe Litigant in Law Review Article Wasn't "Harassment,"

notwithstanding the claim that it “invites worldwide haters to threaten, stalk, and commit violence against” her.

From Luo v. Volokh, decided today by the California Court of Appeal, in an opinion by Justice Helen Bendix, joined by Justices Frances Rothschild and Victoria Gerrard Chaney:

Appellant Xingfei Luo, also known as Olivia Luo, twice sought a restraining order against respondent Professor Eugene Volokh pursuant to Code of Civil Procedure section 527.6. Luo sought to prevent Volokh from identifying her in his writings….

[Cal. Code Civ. Proc.] Section 527.6 provides an expedited procedure to prevent harassment. By definition, harassment must have "'no legitimate purpose.'" "Legitimacy of purpose negates harassment." Constitutionally protected activity also is excluded from the definition of harassment. A court must find harassment by clear and convincing evidence before issuing an order prohibiting the harassment.

Section 527.6 defines harassment as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." A course of conduct is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email."

{Luo described the parties' relationship as follows: "Volokh has learned my info through litigation." Luo stated, "Volokh has published my info online and invited ha[t]ers to stalk, harass, threaten and commit violence against me. I continue to receive threatening and harassing phone calls and voice mails calling me cunt, slut, lying on men and indicating they will rape and kill me. At the end of July, I was forced to move out of my prior residence for safety concern."

Luo requested the trial court order Volokh to "[1] Remove any remarks, comments, or references from any publicly available documents or articles authored by [Volokh] that connect [her] real name with rape or sexual assault; [¶ 2] Remove any remarks, comments, or references from any publicly available documents or articles authored by [Volokh] that connect [her] with the cases in which she has received a protective order to proceed under a pseudonym; [¶ 3] Cease publishing any remarks, comments, or references that connect [her] with rape or sexual assault; [¶ 4] Cease drawing public attention to [her] name [when] associated with rape or sexual[ ] assault."

In a declaration filed in support of her petition for a restraining order, Luo averred that two unidentified persons telephoned her calling her "cunt, bitch, slut, lying on men" and threatening to rape and kill her. Luo did not know the callers' identities but assumed the callers read Volokh's writings. Luo, however, provided no evidence linking the callers to Volokh's writings. Luo averred that although she received court orders protecting her name because she was a victim of rape, Volokh published her name. Luo identifies no such court orders. Luo averred Volokh's "publication invites worldwide haters to threaten, stalk, and commit violence against me." Luo offered no citation to Volokh's writings supporting this assertion. Luo further averred she relocated because of these safety concerns.}

Volokh's conduct is not within the ambit of section 527.6's definition of harassment. Volokh's identification of Luo in a law review article and on his blog was not unlawful violence or a credible threat of violence. There was no evidence that Volokh stalked Luo, made harassing phone calls, or sent her harassing correspondence. Volokh's writings served a legitimate purpose—a discussion on how a litigant's use of a pseudonym could affect open access to court proceedings and impede investigations into a litigant's credibility. Luo's failure to cite to any evidence that Volokh harassed her within the meaning of section 526.7 is fatal to her argument that she demonstrated her restraining order petition has minimal merit….

The statute focuses "narrowly" on "interpersonal conflict." A section 527.6 restraining order may enjoin a "party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner." Luo did not request the trial court enjoin Volokh from any such proscribed activities.

Nothing in the statute precludes Volokh's identification of Luo by name….

Luo's contrary arguments are unpersuasive. She states, "If the writings, intentionally or inadvertently, embolden others to engage in harassing behavior towards Luo, they undermine any claim to legitimacy. Furthermore, if they perpetuate harmful stereotypes their purported legitimacy diminishes further." These arguments rest on incorrect factual premises because the record does not support Luo's belief that Volokh encouraged anyone to harass Luo. Luo provides no citation to any writing showing Volokh encouraged harassment or violence against her. Similarly, Luo cites no evidence that Volokh's writings "perpetuate harmful stereotypes," and we find none.

Luo states Volokh's writings are widely available and the "information, when in the wrong hands, can be weaponized to incite violence or harassment against a victim, such as Doe [Luo]." Luo argues Volokh has subjected her to "unnecessary public exposure and incitement." Again, Luo offers no evidence to support these assertions. Because there is no evidence Volokh encouraged others to commit violence or harassment against Luo, we do not consider whether section 526.7 could support a restraining order against someone who encourages others to harass….

{Given our conclusion that Luo's petition lacked minimal merit, we do not consider Volokh's other arguments supporting the trial court's ruling. We also do not address arguments that issuing a restraining order would violate Volokh's First and Second Amendment rights.}

Luo also tried to appeal the lower court orders depseudonymizing her (she originally sued me as a Jane Doe) and refusing to strike certain documents from her filings. The Court of Appeal, though, concluded that she incorrectly appealed those orders, and that the court therefore lacked jurisdiction to consider her appeal.

The Court of Appeal apparently did not see much basis for pseudonymity here, though: It on its own identified her by her name, even though the depseudonymization orders were stayed pending appeal, and she and I litigated the case as Doe v. Volokh. Thanks to Annika Boone Barkdull (Schaerr | Jaffe), who worked on the brief with me, and who represented me at oral argument.