No One-Sided Pseudonymity in Case Against Political Candidate Alleging Revenge Porn

“Plaintiff has not conducted this litigation as though it involves matters of a highly sensitive and personal nature—instead, she would cloak herself in pseudonymity, and the protections it affords, while publicly lobbing allegations at Defendant by name.”

From Doe v. Maloit, decided today by Magistrate Judge Kathryn Starnella (D. Colo.):

Plaintiff and Defendant were married from 2006 to 2018. In April or May 2022, Plaintiff "began receiving phone calls and emails at her place of employment—a school—from strangers, who informed Plaintiff that there were compromising photographs of her online. Some had been taken by Defendant, others by Plaintiff of herself, all while they had been married. They were taken for her and Defendant's private use, and she never consented to their broader disclosure.

At some point between May and August 2022, Defendant admitted that he had previously posted the photographs to a website called RedClouds, where users can share pornographic content. The photographs then spread to other websites, some of which posted them alongside Plaintiff's name, employment information, and work contact information. Plaintiff had to bring the matter to her employer's attention and hired a lawyer to attempt to get the photographs removed from various websites, but only some of the websites have complied. Plaintiff alleges that Defendant disclosed her photographs online. She lodges three claims against Defendant: (1) disclosure of intimate images, in violation of 15 U.S.C. § 6851; (2) unauthorized disclosure of intimate images, in violation of Colo. Rev. Stat. § 13-21-1401 et seq.; and (3) a request for permanent injunctive relief against Defendant.

Defendant denies wrongdoing, alleging that Plaintiff participated in and consented to the posting of the photographs online. He "assisted Plaintiff, with her knowledge, with trying to take some photographs down since 2022." He assisted her in hiring an attorney to attempt to remove photos that had spread beyond RedClouds, but not all websites complied.

Defendant has also asserted counterclaims against Plaintiff. He alleges that he and Plaintiff were consumers of RedClouds content from 2006 to 2009, and that in 2009 or 2010, they "began using RedClouds as both content consumers and content creators." Plaintiff allegedly "explicitly consented" to posting various photographs to RedClouds, initially with her face blacked out but eventually with her face visible. Defendant alleges that the parties continued to engage in erotic photography content creation until 2022, when they were no longer married.

Around that time, the parties began having disagreements over parenting and custody, disputes which continued through August 2024. Ultimately, Defendant decided to run for office, which he announced on August 29, 2024. Given the timing of Plaintiff's Complaint, which she filed on August 29, 2024, Defendant believes his children told her about his run for office and she "timed the filing of this action to coincide with [Defendant's] announcement" in a bid to harm his reputation. Defendant lodges two counterclaims against Plaintiff: abuse of process and extreme and outrageous conduct….

The court rejected Doe's attempt to proceed pseudonymously, even though such pseudonymous litigation is pretty common in so-called "revenge porn" cases (but see Doe v. Smith (7th Cir. 2005), denying pseudonymity for similar reasons). The court stated the general rule against pseudonymity, and concluded that this wasn't one of the exceptional cases where pseudonymity was allowed:

Courts in this Circuit have permitted pseudonymous litigation under situations involving, for example, "birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families[.]" Similarly, plaintiffs alleging that they were sexually abused as minors often may proceed pseudonymously. However, courts "have generally required adult plaintiffs to proceed in their own name" even when their allegations relate to sexual assault or sexual harassment. Thus, while the Court recognizes Plaintiff's asserted privacy interests, the Court is not persuaded that the subject matter of this lawsuit necessarily justifies Plaintiff proceeding pseudonymously. Cf., e.g., Levy v. Shuster (D. Colo. 2023) (stating that the court "remain[ed] unconvinced that the subject matter of this case [i.e., cases involving "differing understandings of sexual encounters over a year-long relationship"] inherently compels pseudonymity").

This is especially true given Plaintiff's decision to identify Defendant by name in her publicly filed Complaint, which also identified him as her ex-husband of more than 11 years. This case proceeded for nearly a month before Plaintiff took any effort to shield Defendant's identity, even while he was running for public office. For his part, Defendant alleges that Plaintiff's filing of this suit was intended to harm his reputation, and he argues that she successfully caused a public frenzy. Response [#36] at 2 ("Plaintiff's multiple public filings … directly led to members of the public finding and posting Plaintiff's action on the City of Erie Facebook page, leading to a Boulder Weekly Article."). Even in this Motion, Plaintiff asks the Court to broadly enjoin Defendant's ability to discuss her or this lawsuit, without any corresponding limitations on her own speech or conduct.

To the extent that Plaintiff's and Defendant's sexual history and engagement with erotic photography are highly sensitive and personal topics, they are sensitive and personal to both parties involved. However, Plaintiff has not conducted this litigation as though it involves matters of a highly sensitive and personal nature—instead, she would cloak herself in pseudonymity, and the protections it affords, while publicly lobbing allegations at Defendant by name. {For example, on October 29, 2024, Plaintiff publicly filed her Response to Defendant's Motion for Sanctions, which reasserted her theory of the case and (ironically) lambasted Defendant for "elect[ing] to draw further attention to this matter by filing a ridiculous Answer with Counterclaims, the latter in excess of 162 paragraphs, which—much like this instant Motion—may very well be aimed at generating attention for yet another political campaign by Defendant." Of course, Defendant was required to file an Answer along with any compulsory counterclaims he had at that time.} The Court does not find that the sensitive or personal nature of the allegations warrants pseudonymity….

[T]he Court [also] does not find that "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." Taking her allegations as true, the injury of which Plaintiff complains has already occurred, as far as Defendant is concerned: the photographs were allegedly taken between 2006 and 2012 and posted "as far back as 2016" before spreading to various websites along with Plaintiff's personally identifying information. Plaintiff has already brought the matter to her employer's attention and taken various remedial steps—including having her employer remove her work photograph from its website and change her work email address, hiring an attorney to attempt to remove the photographs from various websites, paying for a subscription to PimEyes, and making requests to Google to remove various URLs from its search results. Although these efforts were not completely successful, Plaintiff does not allege that Defendant is continuing to upload or disseminate these photographs.

Plaintiff admits that her identity "can potentially be gleaned from the allegations made in the pleadings thus far" and that "information regarding this lawsuit has already been made available to the public at large." More than that, Plaintiff publicly named Defendant in her Complaint and identified him as her ex-husband of more than 11 years. As a result, nearly anyone who personally knows Plaintiff or Defendant can easily identify her simply by reading her Complaint. Moreover, Plaintiff has not disputed Defendant's assertion that her allegations have already gone public on Facebook and through the Boulder Weekly article. See also A.M. ex rel. D.M. v. Poudre Sch. Dist. (D. Colo. 2024) (denying parents' and a minor plaintiff's request to proceed pseudonymously where their parents had "separately publicized their abuse allegations and this lawsuit to the press").

Any damage from this case's publicization has already been incurred; therefore, the "need for the cloak of anonymity" is not apparent. See, e.g., Lindsey v. Dayton-Hudson Corp. (10th Cir. 1979) (affirming denial of leave to proceed pseudonymously where the plaintiff "had already suffered the worst of the publicity and embarrassment"); Luo v. Wang (10th Cir. 2023) (concluding that "the injury [the plaintiff] litigated against[,] … [the defendant's previous] alleged defamation and disclosure of her private information—would not be incurred as a result of the disclosure of her identity in this case") (internal quotation marks and modification omitted).

Importantly, in finding that the injury Plaintiff complains of has already occurred, the Court does not minimize the risk that these photographs will spread further now that they are on the internet or the harm that could cause to Plaintiff—but that is neither the injury nor the parties against whom Plaintiff is currently litigating. Plaintiff has not named any websites, domain name owners, or internet users as defendants in this matter and she does not seek to enjoin the further dissemination of her photographs; rather, she is suing her ex-husband for his alleged prior act of posting her photographs online and the damage that act caused.

While she asks the Court for injunctive relief, she does not allege that Defendant has continued to disseminate photographs of her or that he is likely to do so now that he has been summoned into federal court. Thus, even though Plaintiff seeks prospective relief, her damages are predominantly retrospective in nature, and the injury she is litigating against is not likely to be incurred because of the disclosure of her identity in this case. In summary, because Plaintiff has not shown that exceptional circumstances exist warranting pseudonymity, the Court will not allow her to proceed pseudonymously….

Note that defendant lost the Nov. 5 election, getting 18.5% of the vote in the four-way race (in which the top two vote-getters got seats).