California Appellate Court Generally Rejects Pseudonymity for Defamation Plaintiffs (Including in #TheyLied Sexual Assault Allegation Cases)

From today's opinion in Roe v. Smith, decided by Justice Anne Richardson, joined by Justices Elwood Lui and Victoria Chavez:

In 2022, plaintiffs [Jane Roe and John Doe] and [defendant] Jenna [Smith] were all students at the same high school in Los Angeles County…. At the time, plaintiffs were in a dating relationship, which continued at least through the date of the complaint….

In March 2023, Jenna began telling other students at the high school that John had sexually assaulted her and Jane. In April 2023, [defendant] Mother [Smith] told parents of other members of the club that John had sexually harassed Jenna….

The school launched an investigation, with which John voluntarily cooperated. While the investigation was ongoing, Jenna continued to tell other students John had engaged in sexual misconduct towards her and Jane. The "school rumor mill [ran] wild" with this information and plaintiffs received "dozens" of harassing and violent comments on their social media accounts. Plaintiffs allege Jenna was behind these comments….

The school's investigation into Jenna's complaint finally concluded in August 2023, finding John was "not responsible for any of the claims [Jenna] launched against him."

Plaintiffs sued for defamation and related torts, and "sought damages in excess of $5 million" and "an injunction ordering defendants to remove all defamatory posts from social media and to issue apologies to plaintiffs, and prohibiting defendants from publishing any future statements about plaintiffs whether written or verbal."

The court reversed the trial court's decision allowing pseudonymity to the Does (no-one objected to the pseudonymity of the Smiths):

The right of public access to court proceedings is implicated when a party is allowed to proceed anonymously.,,, "Public access to court proceedings is essential to a functioning democracy." "[T]he public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases," not merely those in which the public is a party, or which generate public concern. Public access to courtrooms in civil matters serves to:

"(i) demonstrate that justice is meted out fairly, thereby promoting public confidence in such governmental proceedings; (ii) provide a means by which citizens scrutinize and check the use and possible abuse of judicial power; and (iii) enhance the truthfinding function of the proceeding."

"If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals." "[W]hen individuals employ the public powers of state courts to accomplish private ends, … they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed [therein] will be open to public inspection." … "[A] trial court is a public governmental institution. Litigants can certainly anticipate, upon submitting their disputes for resolution in a public court … that the proceedings in their case will be adjudicated in public." …

"[T]he right to access court proceedings necessarily includes the right to know the identity of the parties." … In Department of Fair Employment & Housing v. Superior Court (Cal. App. 2022), the court recognized the constitutional issues noted above and held that, before authorizing a civil litigant to use a pseudonym, the trial court must apply the "overriding interest test" outlined in NBC Subsidiary and California Rules of Court, rule 2.550(d)…. The court further held that "[i]n deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'" …

We agree with the Department of Fair Employment & Housing court that trial courts faced with a motion to proceed pseudonymously should apply the "overriding interest test" outlined [as to the sealing of court records] in NBC Subsidiary v. Superior Court (Cal. 1999) and California Rules of Court, rule 2.550(d)….

Courts in California have recognized at least two interests relevant here as potentially sufficient to allow for redaction of names. These are: first, maintaining privacy of highly sensitive and potentially embarrassing personal information [such as] … records revealing gender identity change … [and] medical and psychological records … and second, protecting against the risk of retaliatory harm…. A recurring theme in the caselaw is that a party's possible personal embarrassment, standing alone, does not justify concealing their identity from the public…. "An unsupported claim of reputational harm falls short of a compelling interest sufficient to overcome the strong First Amendment presumptive right of public access." …

We agree the allegations in the complaint pertain to highly sensitive and private matters: specifically, John's allegations he was wrongly accused of sexual misconduct while in high school; and Jane's allegations she was wrongly identified as a nonconsensual partner of John's during that time. Allegations concerning sexual conduct do fall into the category of highly sensitive and private matters, the more so because the parties were minors at the time.

But that is merely the first step in the overriding interest test. Next, the court must find that the interest of privacy in highly personal and sensitive matters overcomes the public's right of access. We conclude there is insufficient evidence to support the trial court's conclusion that it did. We take plaintiffs' contentions to the contrary one at a time.

First, there was no evidence of serious mental or physical harm that would occur to plaintiffs should their identity be revealed. To the extent the trial court concluded that a reasonable fear of one's employer learning about allegations of a private nature overcame the public's right of access, we disagree.

To state the obvious, the fear that a future employer might learn about the lawsuit through an Internet search is not the equivalent of a fear of violence to one's family members, deportation and arrest, violence, harassment and discrimination against transgender people, or violence against a witness in a murder case. Rather, the fear argued here is precisely the kind of reputational harm cases have routinely held is insufficient to allow a party to proceed anonymously…. "The allegations in defamation cases will very frequently involve statements that, if taken to be true, could embarrass plaintiffs or cause them reputation harm. This does not come close to justifying anonymity, however …." …

[F]ear of harm to one's reputation applies to a great number of cases, including virtually any defamation case. By definition, a claim for defamation involves an allegedly harmful falsehood that has been published to third parties. This justification, when (as here) unsupported by more than arguments based on unproven allegations, would swallow the rule and cannot be squared with the judicial refrain that proceeding under a pseudonym should only be allowed in the "rare" case.

Second, plaintiffs here were not minors at the time they filed this lawsuit. While they were minors for a portion of the underlying events, they are not anymore….

Third, the trial court's conclusion that knowledge of the events was "confined to a relatively small number of people" is unsupported by the record. [Details omitted. -EV] … Even if the trial court had taken such evidence, this factor is at best neutral…. [P]arties generally lose their reasonable expectations of privacy when they file a civil lawsuit….

Fourth, this is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context.

Fifth, there is no basis to proceed anonymously because the injury litigated against would be incurred as a result of the disclosure of the party's identity. The cases that have recognized such an interest are cases seeking to enjoin a disclosure of private facts. Here, by contrast, the plaintiffs are suing for damages based on comments which have already been made. To hold otherwise would effectively permit all defamation plaintiffs to proceed by way of pseudonym.

Sixth, that defendants already know plaintiffs' identities is, at best, neutral in this case ….

Seventh, we reject plaintiffs' argument that requiring them to use their real names would discourage "similarly situated" litigants from bringing defamation cases…. To accept such a rationale here would equip all defamation plaintiffs with the same argument.

To the contrary, courts have expressed a reluctance to allow defamation plaintiffs the option to remain anonymous until they know the outcome of their case…. [P]laintiffs claim to have sued to "disassociate their names" from damaging and untrue allegations. Yet they argue if their true identities became known, any ultimate success in the matter would be negated by disclosure of their names. As other courts have noted, this rationale does not make sense in the context of a plaintiff who has filed a defamation claim. (See Doe v. Doe (4th Cir. 2023) ["we fail to see how [the plaintiff] can clear his name through this lawsuit without identifying himself"].) …

The trial court concluded that since the public interest in the identity of the parties is "likely nominal at best," the public interest was overridden by plaintiffs' privacy interests…. [But th]e public has a fundamental interest in knowing the identities of parties to litigation in public fora. Such information is essential to monitoring public proceedings for a host of evils, including corruption, incompetence, inefficiency, prejudice, and favoritism…. "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." …

The trial court understandably credited the privacy concerns of plaintiffs, particularly given they were agreeable to having defendants' names kept out of the pleadings as well. But there is a third stakeholder whenever a party seeks to close any portion of a court record, whether or not represented by a group like the [First Amendment Coalition, which brought the appeal]: the public. Just as a court cannot seal documents solely because both parties agree, a court must be vigilant to protect the public's right of access even when the parties themselves agree to proceed pseudonymously.

Disclosure: I briefed and argued the case on behalf of the First Amendment Coalition. Thanks to then-Stanford-law-students Benjamin Diamond Wofford, Olivia Morello, and Samuel Himmelfarb, who worked on earlier phases of the case.