Seeking Redress in Court: John and Jane Doe Litigation

        Circumstances Where a Plaintiff’s Anonymity Should Be Preserved

In response to increased ability of technology to track not only the inane aspects of a person’s life but indeed very private information, there should be a uniform balancing test to address pseudonymous plaintiffs in light of current technology.

Rule 10(a) of the Federal Rules of Civil Procedure requires that, “the title of the complaint must name all the parties” to the lawsuit. Although State and Federal Courts differ on whether to allow plaintiffs to sue anonymously. Similar circumstances have met the required threshold of weight given to the privacy interest in anonymity, up against the presumptive right to public access of court proceedings. For instance, the Supreme Court in Roe v. Wade allowed proceedings to occur under a pseudonym due to the fear of retaliation. States differ to their viewpoint on when to allow such lawsuits involving pseudonymous plaintiffs to go forward. For instance, Utah has

tacitly allowed plaintiffs to proceed under the pseudonyms; yet, does not set out an explicit balancing test demonstrating its reasoning. Although such cases seem to pertain to the immense privacy interest in children involved in sexual abuse cases.

In Doe v. Merten, a constitutional challenge was brought by Virginia students that were not U.S. citizens in lieu of their failure to be admitted into six Virginia colleges, but were unable to precede anonymously as their immigration status was not considered a “matter of sensitive and highly personal nature.” Factors that are considered:

“(1) to preserve privacy in a matter of sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the person whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and relatedly (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.”

Doe v. Porter the Sixth Circuit granted Plaintiffs’ request for anonymity in a claim against the Board of education, which allowed a program called the Bible Education Ministry to take place across three county schools.  In weighing the factors, the Court reasoned that due to the sensitive “quintessentially private matter” of religion, plaintiffs would have faced immense vilification by the conservative religious community if they were denied anonymity. In addition, a letter to the local newspaper stating that the plaintiff was a coward demonstrated that plaintiffs would withstand retaliatory harm. I would argue that community backlash could similarly present itself in an on-line forum concerning a “simple” sexual harassment or other type of case previously denied anonymity. Because of recent technological advances, the vast interconnectedness of the people that “know” each other, and the swift way in which communication occurs; the current approach favoring anonymity in litigation falls short. Courts should be require a factor balancing test, one that avoids pigeonholing specific categories of claims as inadequate for the “preservation of privacy” under the first prong and broadens the second prong of harm.

Balancing of the 1^st Amendment Open Access to Court Proceedings

The importance of maintaining privacy whilst seeking justice is paramount, as a simple take down of content doesn’t necessarily rid the web of the private information. In Doe v. Smith, 412 F.Supp.2d 944 (2006), a woman brought a claim against an old boyfriend for distributing a videotape of the two engaged in a sexual act when she was a minor. Considering the nature of the tape, the woman hoped to proceed to litigate the case under a pseudonym but was denied. Following a remand from the Seventh Circuit, Justice Easterbrook noted that that medical issues alone are not sufficient. In addition, the court cited Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir.2004) stating that: “The concealment of a party's name impedes public access to the facts of the case.”

The court again reaffirmed the Seventh Circuit’s demonstration that sexual harassment cases are not to be brought anonymously—unlike rape cases, or where a “likely target of retaliation by people who would learn her identity only from a judicial opinion or other court filing.”  Moreover, the court noted that Smith would face considerable disgrace in conjunction with the charges and thus, she should share in the “limelight” of public opinion. In addition, the court found it important that she was already “known” to be the girl in the recordings. However, in light of the sheer vast number of people on the internet, the argument that she was already know to be the girl on the recording ignores the real threat of further mental harm of the video resurfacing or new people learning of her identity.

Following this logic, Ralph L. Jacobson speaks to the ease of the publics’ ability to access court files freely. He goes onto proclaim that even within a simple auto accident, glaring back at the person viewing the claim could relay private medical information—as damages may have necessitated the disclosure of a PTSD diagnosis. Under this line of analysis, privacy does not just entail the subject matter of the claim but possibly extends to other private information.

A Legal Test Should Be Employed When Anonymity Is Requested Allowing for a Balancing of First Amendment Rights Against the Public’s Right

Perhaps one could argue that if Plaintiff must defend himself publically, it is only equitable that the plaintiff not be the only person in the limelight of public opinion. Because the First Amendment favors openness, giving the public a chance to scrutinize the judicial process should remain essential; decidedly, courts could still create greater protection in light of technological development by limiting access.

In light of the presumption of access to judicial proceedings under the First Amendment, federal courts have employed various balancing tests in regards to whether to allow plaintiffs the ability to litigate under a pseudonym. Notably in federal criminal cases, the government has uniformly protected juveniles. In regards to an adult victim seeking to be anonymous, courts have shown apprehension in light of defendant’s Sixth Amendment right to confront one’s accuser.

Although there is no uniform consensus in regards to a particular balancing test, courts generally given great weight to the request for anonymity when it involves victims of sexual assault, juveniles, and religious and political speech/religious. In Anonymity and the Law, A. Michael Froomkin notes that “political speech receives the highest constitutional protection because it ‘occupies the core of the protection afforded by the First Amendment.’

Victims of Sexual Assault Are Especially at Risk of Re-Victimization by Technology

Being a child doesn’t guarantee going forth in anonymity. Courts need to take a much stricter approach in regards to not only sexual assault claims but harassment. Because of the legal framework surrounding the First Amendment Right to be anonymous, girls that undergo sexual harassment are subject to the pernicious nature of many online “opinions” relayed in blogs, tweets, and even through similar shared friends on Facebook.

A Kansas District Court denied Plaintiffs’ anonymity for a claim against their teacher for a claim of childhood sexual harassment and battery. Although it was noted that the teacher “allegedly traced his finger . . . between her breasts, and . . . squeezed her left buttock.” The court’s reasoning that disclosure will at most create an embarrassing situation—which alone does not justify anonymity—further detailing that following the Tenth Circuit, it was not a highly sensitive matter. Now this may very well be true in older cases but current sexual harassment cases—especially involving young girls—should arguably be waived in favor of anonymity.

In contrast, Diego v. John Roe 543 U.S. 77, U.S., Dec. 06, 2004

A police officer used a pseudonym in the case where he was discharged by the police department. The department found the online video of him stripping off his police uniform. In relationship to the privacy rights of an unwanted sex tape—where the girl was only 16-year-old at the time, it is obvious what constitutes a “sensitive and highly personal nature.” Although a uniform test for balancing when anonymity may be utilized may not solve the subjectivity problem but it is a starting point. Moreover, I would argue that the factors of the Fifth Circuit should be expanded upon to encompass a broader view of the first prong.

Advancement in Technology Requires a Uniform Test

Technology is not only rapidly advancing but the ease in the collection of private information is astounding. The ever increasing encroachment of privacy in relationship to technology should warrant greater anonymity; notably, in cases such as Doe v. Smith as continued online involvement simply exacerbates the victim’s suffering. Courts however are inconsistent in regards to permitting anonymity in civil and criminal law. “Some courts have concluded that sexual abuse victims should be given fewer rights to use pseudonyms in civil cases because the victim voluntarily filed a civil case.”

However, claiming the plaintiff should share in the public acknowledgement of the sexual harassment claim weights heavily against the victim in light of the quick explosion of news stories. Sexual harassment cases are not simply an embarrassing disclosure; but can become a recurring traumatizing event. Simply denying specific cases like Doe v. Smith and other more serious sexual harassment cases the right to anonymity merely creates a podium for online abuse.