Partial (Penetrable) Pseudonymity for Libel Defendants?

I wrote earlier today about a Title IX lawsuit against a university by a student who had been accused by a classmate of rape; had been exonerated by the university; but continued to be publicly accused, including by the co-presidents of a student group called "Preventing Sexual Assault." The court allowed the Title IX claim to go forward, on the theory that the continued accusations may themselves have constituted sexual harassment of the student, and that the university may not have done enough to prevent the consequent harm to the student's educational opportunities.

The student, who sued as a John Doe, had also sued the co-presidents of the student group for defamation, and had named them in the Complaint. As a general matter, most (though not all) courts let Title IX plaintiffs who claim to have been falsely accused of sexual assault sue as Does. A common theory is that the underlying Title IX proceedings are supposed to be confidential, so lawsuits over Title IX should be as well. Most courts do not allow defamation plaintiffs to sue pseudonymously, including in cases stemming from campus sexual assault accusations (see Doe v. Doe (4th Cir. 2023)), at least when they sue just for defamation. (Query what the right result is when, as here, the plaintiffs sue both under Title IX and for defamation.)

But here the question was about the naming of the defendant student group co-presidents. The plaintiff originally sued them by name, but three months later the parties agreed to have those defendants pseudonymized, and the court approved that (without any detailed explanation). Here's an excerpt from their motion:

Both Defendants take pride in their work on behalf of men and women victimized by conduct ranging from sexual assault to catcalling. They stand accused in this case of defamation committed with malice against the Plaintiff, a very serious allegation indeed. Both Defendants just graduated from the University of Maryland, College Park. Defendant Two is still job hunting in her field. Defendant Three secured a job in her chosen field of public relations. Defendant Three, who has a less common name than many, was shocked to discover that a Google search of her name yields as the fifth entry, pleadings in this case. For Defendant Two, she shares her name with others with many online entries. Defendant Two is concerned that could change as the case progresses.

For both, however, searches on Google, PACER, Judiciary Case Search, etc. are all standard practices for many employers. They are at the beginning of their professional careers. They are greatly concerned about the potential impact on future employers because of these serious allegations which they absolutely reject. Defendant Two, in point of fact, defends these allegations in that she was simply uninvolved—distinct from Defendant Three who defends these allegations as simply wrong or grossly conflated….

Both these Defendants are young women at the very beginning of their adult and professional lives. Misuse of the allegations against them could have a profound negative impact….

Now the absence of opposition from the plaintiff is indeed relevant here, since part of the problem with pseudonymity is that it may cause unfairness to the opponents (see here for more details). Moreover, here the plaintiff is a Doe, so there may be a strong fairness argument in favor of having two-sided pseudonymity rather than one-sided.

At the same time, the public has a presumptive right to know the identities of the parties in a case (see here for more on the reasons for that), so the parties' consent can't be enough by itself to justify the pseudonymity. And of course a wide range of civil defendants (as well as civil plaintiffs) may well want the pseudonymity the court authorized here: Many people accused of various misbehavior (defamation, sexual assault, nonsexual assault, negligence, even just breach of contract) may worry that future employers will see that and won't want to hire them.

All this having been said, I should note that the parties' names were just partially pseudonymized. They don't appear in the docket for the federal case, or in the filings after the judge's grant of the defendants' motion. But earlier filings in the docket do include their names, so journalists, researchers, and others who are interested in investigating the case more closely can do so. The defendants' motion expressly declined to ask for retroactive sealing of those filings (which many courts are reluctant to provide):

The undersigned discussed with Plaintiff's counsel whether to seek a re-filing of all pleadings to date with the Defendants' new pseudonyms (presuming this motion is granted). That would be accompanied by a request to then seal all pleadings with their actual names. This would be a substantial amount of work for Plaintiff and Defendants. For the moment, Your Defendants will be satisfied with removing further use of their names from the public record. They will reserve the question of seeking a re-filing of pleadings to date and hope it is not needed in the future.

This seems to be a form of the "penetrable pseudonymity" that I had mentioned in my Law of Pseudonymous Litigation article:

Often the pseudonymous party's goal is simply to keep cases from coming up on casual Google searches (by prospective employers, prospective romantic partners, friends, neighbors, or classmates). Even if someone—say, a news reporter—uncovers the party's real name, there's a good chance that the name won't be used in the final story.

Indeed, penetrable pseudonymity might be seen as a reasonable compromise: Those who really want to learn the party's name can find it, but it takes a bit of work and possibly expense, just as in the past going to the courthouse to get court records was allowed but involved work and expense.

This having been said, many defendants would want to enjoy even just the penetrable pseudonymity that these defendants got—and in my experience, most defendants (and plaintiffs) wouldn't get that. And this doesn't seem like the strongest case for penetrable pseudonymity:

1. The employers may have good reason to look to see what their prospective employees had been accused of. Say you're hiring an employee, including in public relations. That employee will be speaking on your behalf, and you'll often be responsible for things they say. If they have been sued for defamation—including for spreading extremely serious allegations that the university had concluded (whether correctly or not) were unfounded—you might reasonably worry that this might happen again, and you'll be the one left holding the bag. (Of course, it's also possible that the prospective employee was not guilty of defamation, either because she was "uninvolved" or because the allegations against her were "simply wrong or grossly conflated.")
2. In this instance one of the defendants appears to have her role as co-president of the Preventing Sexual Assault group on one of her professional pages. (For both of the co-president defendants, that role can also be seen through Google searches that find positive articles about their work with PSA.) That is a perfectly fair credential to include, of course, and employers may well give her credit because of this role. Those employers might also reasonably want to know about serious accusations that had been made against her in that role.
3. More broadly, the defendants were allegedly involved, via the PSA, with the PSA's and Roe's publicizing the names of accused rapists on campus—even though the university had concluded the accusations had been false. Yet their motion in the lawsuit argued that the court shouldn't (despite the normal legal rules related to openness in litigation) publicize their names as accused defamers in the docket.

Again, perhaps the court got this right, by allowing the removal of the defendants' names from the docket and future filings, but leaving them accessible to those who really want to find them. But in any event I wanted to flag the court's remedy here, which struck me as interesting and important.