The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

No Pseudonymity for Plaintiffs in Black-Lives-Matter-Poster-Related Lawsuit, Despite Fear of "Cancel Culture" Retaliation


In Cajune v. Indep. School. Dist. 194, decided today by the Eighth Circuit, plaintiffs sued to challenge the School District's permission for teachers to display Black Lives Matter posters in classrooms (but not for members of the public to display other posters, such as All Lives Matter or Blue Lives Matter posters). The court, in an opinion by Judge Raymond Gruender, joined by Judges Bobby Shepherd and Steven Grasz, upheld the district court's denial of some plaintiffs' motion to proceed pseudonymously:

This circuit has not directly addressed the standard by which a litigant may proceed under a pseudonym…. [W]e join our sister circuits and hold that a party may proceed under a fictitious name only in those limited circumstances where the party's need for anonymity outweighs countervailing interests in full disclosure….

The unnamed plaintiffs wish to remain anonymous in this litigation because they fear reprisal from political activists in southern Minneapolis. The unnamed plaintiffs contend that these political activists are part of the greater "cancel culture" movement, which seeks to punish any dissenting political viewpoints. In support of their contention, the unnamed plaintiffs reference three examples of cancel culture: (1) political activists' intentional interference with Bittersweet Bakery's business in Eagan, Minnesota; (2) HomeTown Bank's firing of Tara McNeally due to McNeally's criticism of the Shakopee School District's superintendent on Facebook; and (3) the plaintiffs in this case allegedly being assaulted and physically blocked from entering school board meetings by political activists.

We conclude that the district court did not abuse its discretion in denying the unnamed plaintiffs' motion. We acknowledge that the danger of retaliation is "often a compelling ground" in favor of anonymity. However, aside from a general reference to cancel culture, the unnamed plaintiffs do not claim any nexus between the incidents involving Bittersweet Bakery or McNeally to their case. A general reference to cancel culture alone is insufficient to establish a compelling fear of retaliation.

With respect to the unnamed plaintiffs' allegations regarding physical assault at school board meetings, the unnamed plaintiffs do not suggest that the political activists involved in these incidents would seek to retaliate against them due to the prosecution of this lawsuit. According to the plaintiffs, the political activists blocked them from attending school board meetings so as to obtain better seats and more influence over the school board. This behavior ceased after the plaintiffs complained. We cannot say that the district court abused its discretion in finding that this past harm did not precipitate a finding of future harm. In addition, "the district court was free to consider the named plaintiffs as comparators when weighing the pseudonymous appellants' risk of harm against the presumption of judicial openness." The district court noted that this lawsuit already contains three named plaintiffs who have litigated two federal lawsuits asserting their viewpoints for years without apparent incident. Therefore, we affirm the district court's denial of the motion to proceed under pseudonyms….

Here, if you want to know more, are the factors that the court said lower courts should consider, though my sense is that such lists of factors really don't guide courts that much:

The factors that are relevant to this balancing inquiry will depend on the facts of the case in question. Our sister circuits have identified several factors that may be relevant in weighing the competing interests. In Doe v. Stegall (5th Cir. 1981), the Fifth Circuit identified three factors common to those "exceptional" cases in which party anonymity was held to be justified: (1) the party seeking anonymity was challenging government activity; (2) identification threatened to reveal information of a sensitive and highly personal nature; and (3) a party would be required, absent anonymity, to admit an intention to engage in illegal conduct, thereby risking criminal prosecution. The Seventh Circuit has stated that the danger of retaliation is "often a compelling ground" in favor of anonymity. Doe v. City of Chicago (7th Cir. 2004). Factors that weigh against party anonymity include "whether the party's requested anonymity poses a unique threat of fundamental unfairness to the defendant," whether the public's interest in the case is furthered by requiring that the litigants disclose their identities, and whether there exist alternative mechanisms that could protect the confidentiality of the litigants. We emphasize that the aforementioned factors are non-exhaustive and that other factors, or a combination thereof, may be relevant….

[We also] agree with our sister circuits that an abuse of discretion standard of review is appropriate [for reviewing district court decisions about pseudonymity]. Under this deferential standard of review, we must affirm the district court's ruling unless the district court failed to consider a factor that should have been given significant weight, considered an improper factor, or committed a clear error of judgment in the course of weighing proper factors.

But what happened to the First Amendment claim on the merits, you ask? Merits, shmerits! All I care about is The Law of Pseudonymous Litigation.

No, actually, I've also put up another post on what the court did as to the substantive claim.

Thanks to Cedric Bond for the pointer.