I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ. This Part explains why the question is important, which is part of the reason why we think the Court should take its time to review the matter; other Parts, which I'll blog shortly, explain how and why the decisions below are in conflict and therefore need the Court's attention.
Many of our readers may already be familiar with the arguments I lay out below, but this is my attempt to relatively crisply put them together.
[I.] Decisions about whether to permit pseudonymity are important to the public, to litigants, and to the justice system
[A.] Such decisions are important to the public
Public access to information about civil cases "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988). This access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and the Judiciary's "institutional integrity." Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir. 2014). "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
"[A]nonymous litigation" thus "runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." Doe v. Village of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016). "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997).
Party names often offer the best clue for discovering further information about the case. Consider journalists who write about civil litigation. Without party names, they are limited to what they can glean from the filings and what the pseudonymous parties' lawyers are willing to reveal.
But armed with the names, they can investigate further. They can contact the parties' coworkers, business associates, or acquaintances. They can search court records in other cases to determine whether the fact pattern in this case had led to other litigation. They can more generally see what other cases have been filed by the plaintiff or against the defendant and see whether the parties have been found to be credible or not credible in the past. They can determine whether the parties might have ulterior motives for litigating. See Volokh, The Law of Pseudonymous Litigation, at 1370-72.
Pseudonymity also tends to lead to additional restrictions on public access as a case unfolds. Because filed documents will often contain information that indirectly identify a pseudonymous party, courts may need to outright seal other case information or enjoin a party from publicly revealing the pseudonymous party's name (or other details of the lawsuit) in order to maintain effective pseudonymity. See id. at 1372-76.
And allowing pseudonymity in one case invites pseudonymization of all other cases that raise similar concerns, "open[ing] the door to parties proceeding pseudonymously in an incalculable number of lawsuits" of that kind. Doe v. Moreland, No. 18-cv-800, 2019 WL 2336435, *2 (D.D.C. Feb. 21, 2019); see also Doe v. Fedcap Rehab. Servs., Inc., No. 17-cv-08220, 2018 WL 2021588, *3 (S.D.N.Y. Apr. 27, 2018) ("At bottom, Plaintiff wants what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it."); Volokh, supra, at 1451-56.
Courts have therefore treated litigating under a pseudonym as implicating the right of public access to judicial proceedings. See, e.g., In re Sealed Case, 931 F.3d 92, 96 (D.C. Cir. 2019); Pub. Citizen, 749 F.3d at 274; Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001). And, because of this, all "circuit courts that have considered the matter have recognized a strong presumption against the use of pseudonyms in civil litigation." Does 1-3 v. Mills, 39 F.4th 20, 25 (1st Cir. 2022).
[B.] Decisions about whether to permit pseudonymity are important to enforcement of legal rules
At the same time, denying pseudonymity can also undermine the public policy that the civil causes of action are aimed to serve. Plaintiffs faced with the prospect of being publicly identified might choose not to litigate, and might thus forgo the remedies that civil causes of action exist to provide.
