Can #TheyLied Defamation Lawsuits Over Sexual Misconduct Claims Be Filed Pseudonymously?

This controversy is illustrated by two cases that were filed last week. This controversy is illustrated in one case. Doe v. UnderwoodPlaintiff is a Web soap producer who had received both a Daytime Emmy nomination and an Indie Series Award nomination. According to the Complaint:

John Doe lost his SAG signatory status and was unable to produce episodes in February 2016. John Doe was unable to produce any more episodes of the Series with SAG actors. John Doe was a SAG actor and the Series’ star, but he could not be part of it. John Doe, who was an SAG actor, could not regain his producer status in August 2021. That’s more than five years after his initial signatory status.

False statements by the defendants were the reason why SAG was revoked. SAG received false complaints from all Defendants claiming that the Series Set was unsafe and John Doe’s unprofessional behavior. The Defendants alleged that Plaintiff John Doe had been a sexual predator and sexual harasser as well as a purveyor and distributor of pornographic materials. Additionally, John Doe threatened the families of cast members and verbally abused them both in person and in electronic communication via text and e-mail.

Plaintiff requests damages as well as an order for “Defendants to retract their defamatory statements in writing.”

The other is Doe v. Sebrow, the plaintiff is “a prominent financial advisor” who had been romantically involved with a widow who was “a well-known media personality in Jewish media, and … a professional matchmaker, with her emphasis in Orthodox Jewish dating and relationships.” He claims that she organized an Internet libel against him after the breakup. It claimed that he was a “date rapist”, had raped 100 women and violated his daughter. Plaintiff requests damages and an injunction

Permanently and preliminarily restraining Ms. Sebrow, from postings to or media dissemination to any type of social media, print media, electronic or air media (including but not restricted to Facebook, Instagram Google apps, The Jewish Press, Ms. Sebrow’s blogs).

I’m not sure if the request for this was made intentionally so large or was simply meant to keep Ms. Sebrow off writing. Information about the plaintiff In the media. However, even a more narrow request would not be constitutional because it would include all postings about plaintiffs and not just those libelous.

This Fall, I also represented the First Amendment Coalition in opposition to pseudonymity. Doe v. Billington, another such case in Los Angeles Superior Court, but the court there dismissed the claim on substantive grounds and didn’t reach the pseudonymity question; and the defendant in any event identified the plaintiff in court filings—the plaintiff hadn’t gotten leave to proceed pseudonymously, and there was certainly no court order limiting how the defendant could refer to the plaintiff—so the matter became largely academic.

It’s obvious why plaintiffs might want to sue anonymously in these situations. Suing them under their names will further link them with defamatory statements even though they claim that the statements are not true. That’s the well-known “Streisand effect”, which is able to operate both as meritorious legal cases and as bogus. It is also possible to prevent meritorious lawsuits by requiring plaintiffs that they litigate anonymously. Public identification of defamation plaintiffs leads to defamation laws being less enforced.

Nevertheless, the legal system requires that all court records be made public, with the names of parties, as the right to access them “protects and promotes the institution integrity of Judicial Branch” “Public confidence [in the judiciary]It is impossible to maintain important judicial decisions that are kept secret and made public in clear terms. The records supporting these court decisions cannot be seen by the general public. These are only excerpts from court cases. For citations see here.

The courts concluded that the same applies to party names too:[L]Awsuits are open to the public and everyone has the right to know the details. The identities of the defendants are one aspect that should be included in the facts. As a matter policy, we believe that the identities of parties in a lawsuit shouldn’t be hidden except in exceptional cases. “[A]Anonymous litigation violates the right of the public to access judicial proceedings and know who is making use court facilities or procedures that are funded from public taxes. The Court is a public institution. Therefore, the public can look at our shoulders to see who seeks relief in public court.

Indeed, if members of the public—such as journalists—are to monitor what is happening in court, the names of the parties are often key to investigating the case further, for instance to answer:

  • Are the facts part of a larger pattern of litigation, such as an ideology advocate, local businessman or professional who has an economic interest in these cases, or an irritable litigant?
  • Do past cases or news reports show that the litigant has not been trustworthy?
  • Does the litigant have a possible ulterior motive—whether personal or political—that isn’t visible from the court papers?
  • Is the case that led the plaintiff to the lawsuit being covered?
  • Do you know of any chatter on the internet from people who might be knowledgeable about this incident?
  • Are there any grounds to believe that the judge may be biased against or in favor of the litigant?

Knowing the parties’ names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around—the parties themselves might be willing to talk; but even if they aren’t, others who know them might answer questions, or might voluntarily come forward if the party is identified.

The state’s coercive power is used in litigation, but it can also be used to achieve private ends. Even between private parties, a libel suit is designed to penalize (and as in the two cases above, either enjoining, or compelling) speech. Justice Holmes wrote about fair reporting privilege.

It is important that trials of causes take place in the open eye.

As courts attempt to stick to pseudonymity, sealing and heavy redaction are common consequences of pseudonymity. A Google search can often reveal the entire statement, including the name of the party, if the allegedly defamatory material is still available online. Any attempt to prevent that would require much more massive redaction or sealing of the alleged libel—which may in turn make it much harder to understand the legal issues of the case. In the same way, pseudonymous lawsuits often result in gag orders against defendants. These order them to not publicly identify plaintiffs outside of the legal process.

And that’s particularly a problem given that in most such cases—including these two—the defendants are publicly named, so that the lawsuit can potentially damage their reputations even as the plaintiffs’ pseudonymity is aimed at protecting the plaintiffs’ reputations. It is not uncommon for courts to object, such as in the following::

[F]Undamental fairness implies that defendants may be prejudiced when they are required to defend themselves before a jury, while plaintiffs will make allegations from behind a veil of anonymity. C.D. actively has pursued this lawsuit—including by recruiting his co-plaintiff. The plaintiff seeks more than $40 million in damages. He has brought down his credibility by bringing forth serious allegations. He must be prepared to publicly defend his charges in fairness.

Oder, in the case of a plaintiff accusing defendant of having distributed revenge porn to plaintiff

[Plaintiff] has denied [defendant] Smith the shelter of anonymity—yet it is Smith, and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. Even if all the allegations made in the complaint are true, anonymity may provide a cover for defamatory proceedings without fear of being held responsible.

It is particularly difficult to defend yourself in public if a plaintiff uses a pseudonym.

The defendants … have a powerful interest in being able to respond publicly to defend their reputations [against plaintiff’s allegations] … in … situations where the claims in the lawsuit may be of interest to those with whom the defendants have business or other dealings.

Part of this defense will normally include direct challenges of plaintiff’s credibility. These may be affected by some facts plaintiff would prefer to conceal here, such as his history of mental and substance abuse problems. Although they may be delicate subjects, these are crucial to the credibility of the plaintiff in making the serious allegations he has made. He cannot use his privacy rights as a cover to hurl the accusations, regardless of whether he is subjected to criticism and scorn.

Furthermore, it can affect the value of a case if one party is allowed to pretend they are not there. This is something that courts recognize and often use to justify against pseudonymity.[S]A number of cases have shown that the court needs to consider whether allowing one party to go under a pseudonym could create an imbalanced settlement negotiating position.

Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations: While a publicly accused defendant might be eager to settle in order to get its name out of the public eye, a pseudonymous plaintiff might hold out for a larger settlement because they face no such reputational risk… . The Defendants would be at real disadvantage if Plaintiff could proceed anonymously. [and cause significant prejudice]This is especially true when it comes down to settlement leverage.

You can argue, however, that the nonpseudonymity error itself leads to improper settlement leverage. That problem might be solved by pseudonymity. For example, let’s say David Defendant works in a field where any accusation, however unfounded, of misconduct can result in huge financial losses. Paul Plaintiff threatened to file suit. Paul v. David A lawsuit could result in an unjustly high settlement. Paul v. Doe David can defend himself on his merits and possibly win, without any of the allegations being made public) or to an entirely pseudonymous person. Poe vs. Doe Paul would not benefit much from pseudonymity.

In contrast, Polly Plaintiff might want to sue Donna Defendant because of discrimination based upon Polly’s mental disorder. However, she is reasonable afraid that her disclosure would jeopardize her employment prospects. Donna, who might not be too concerned about the public attention related to the allegations of discrimination, may have known that Paula is anxious about the publicity and could settle the case at a small fee, even though Paula may have a strong case. Paula is able to file an a Poe and Donna Can you sue or are you even allowed to sue? Poe vs. Doe A lawsuit could then result in a settlement that is more likely than the trial value.

In general it is not known if non-pseudonymous legal proceedings result in better settlements than pseudonymous. It seems that many cases can be affected by pseudonymity, for the better and for worse. Pseudonymity may also cause practical issues, particularly when the case goes to trial.

In any event, these are the matters that courts have been considering in deciding whether to allow such pseudonymity generally—and they are increasingly considering it in libel cases and in particular in #TheyLied cases brought over allegedly libelous accusations of sexual misconduct. The few instances that have considered pseudonymity requests in libel cases so far have dismissed them. See Doe v. Bogan (D.D.C. 2021); Doe v. Washington Post Co. (D.D.C. 2019).

On the other hand, in lawsuits by university students who claim that they were wrongly expelled for alleged sexual misconduct, many (though not all) courts have allowed pseudonymity—even though those claims also stem from allegedly false accusations and also aim to repair the reputational and economic damage cause by those accusations. Judges seem to have an interest in protecting these plaintiffs against the reputational damage that could result from suing publically over something they had previously kept secret.

#MeToo Plaintiffs, who have assertively brought forward sexual assault cases, are allowed to sue pseudonymously by many courts (though not all). Perhaps the fairer solution would be to allow both the accusers and the accused to be pseudonymous, regardless of whether the accusation is of sexual assault or of false claims of sexual assault—though of course that would make the cases still more opaque, and still harder for the public and for the media to monitor.

As an illustration of what to me is a wider trend, I thought these were worth mentioning. My draft article is available if you want to learn more about the law regarding pseudonymous litigation.

Note that in both these cases the decision to be pseudonymous came rather late—both plaintiffs had filed earlier nonpseudonymous cases apparently stemming from the incidents discussed in the Complaints, and some quick online research (albeit more complicated than just Googling) will uncover the plaintiffs’ likely identities. However, it is possible to imagine other cases where the plaintiffs or their attorneys were less careful.