Of Sex Tapes, Pseudonymous Litigation, and Judicial Bungling
posted by Daniel Solove
Lior Strahilevitz (law, Chicago) has a wonderful post over at the Chicago Law Faculty Blog about a very problematic Seventh Circuit opinion — and blunder. The case, Doe v. Smith, involves a teenage girl whose boyfriend secretly videotaped them having sex and then emailed the video to his friends. The issue is whether the plaintiff could proceed on federal Wiretap Act claims. The court said yes. But then the court stated:
On remand, the district judge must revisit the question whether the plaintiff should be allowed to proceed anonymously. The judge granted her application to do so without discussing this circuit’s decisions, which disfavor anonymous litigation. The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret. Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity – yet it is Smith, and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegation’s are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.
Lior Strahilevitz persuasively attacks the court’s reasoning:
In a nutshell, the court’s view is that a plaintiff alleging invasion of privacy should have to proceed under her own name in a lawsuit, so that just in case anyone failed to hear the private information that the defendant is alleged to have revealed in the first instance, the press can report on the juicy facts and the plaintiff’s identity with impunity once the lawsuit has been filed. The end result of an anti-psuedonmity rule would be that virtually no one would ever file a meritorious invasion of privacy lawsuit. The incremental harm to the plaintiff’s privacy from the plaintiff’s own lawsuit would almost always be greater than the incremental harm from the defendant’s acts.
Pseudonymous litigation is currently way too restricted in the United States. There is a “presumption that parties’ identities are public information.” Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004). It is generally up to the discretion of courts as to whether to allow people to proceed with a fictitious name such as “Doe.” The judge must find “exceptional circumstances.” In many privacy cases, therefore, people must proceed by revealing their names, further publicizing the very matters that they are suing about. To get a legal remedy for a privacy violation, ironically, people must surrender even more of their privacy and disseminate the information even more widely.
Courts are all over the place in exercising their discretion about whether people can proceed under a pseudonym. As I wrote in an article:
A trial court can permit a plaintiff to proceed anonymously with the use of a pseudonym. Courts can also permit anonymous juries when jurors might otherwise be placed in danger. These decisions, however, are within the discretion of the trial court, and courts differ greatly in the exercise of their discretion. For example, one court permitted a woman raped at a train station who sued Amtrak to keep her identity secret because of the potential embarrassment she would suffer if the fact she was raped became widely disclosed. Doe v. Nat’l R.R. Passenger Corp., No. CIU.A. 94-5064, 1997 WL 116979, at *1 (E.D. Pa. Mar. 11, 1997). In contrast, another court held that a victim of sexual assault could not sue her assailant for civil damages under a pseudonym because “[f]airness requires that she be prepared to stand behind her charges publicly” and because she was “seeking to vindicate primarily her own interests.” Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996); see also Bell Atl. Bus. Sys. Servs., 162 F.R.D. at 422 (D. Mass. 1995) (rejecting use of pseudonym for plaintiff alleging a sexual assault by her supervisor at work and that she might have been infected with HIV).
Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137, 1156-57 (2002).
Like Strahilevitz, I am relatively unconvinced by courts’ arguments about restricting pseudonymous litigation. There have been many “Doe” or “Roe” cases in federal court: Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J. 1990), Doe v. Chao, 124 S. Ct. 1204 (2004), Doe v. SEPTA, 72 F.3d 1133 (3d Cir. 1995) to name a few. And there’s the famous Roe v. Wade, 410 U.S. 113 (1973), as well as Whalen v. Roe, 428 U.S. 589 (1977).
Strahilevitz also points to Florida Star v. B.J.F., 491 U.S. 524 (1989), a case that is particularly interesting because: (1) the plaintiff lost the case in the Supreme Court; and (2) the courts themselves redacted her name. As the Court mentioned in a footnote: “In filing this lawsuit, appellee used her full name in the caption of the case. On appeal, the Florida District Court of appeal sua sponte revised the caption, stating that it would refer to appellee by her initials, ‘in order to preserve [her] privacy interests.’ Respecting those interests, we, too, refer to appellee by her initials, both in the caption and in our discussion.”
Courts have yet to offer any principled rule for why some cases allow parties to litigate with a pseudonym and others don’t. The rule appears to turn on little more than the attitudes of individual judges.
Strahilevitz also criticizes the court’s administrative error of failing to redact the girl’s name on a brief that it posted on its website:
[T]he outrage, as How Appealing points out, is that the Seventh Circuit then posted on its web site an unredacted version of the Appellant’s brief, which prominently includes the plaintiff’s real name for all to see. (The portion of the brief containing this information is required by Circuit Rule 26.1, so it seems that her lawyers were obliged to provide her real name in this portion of their filing, though I wonder why they did not seek a waiver of that rule.) By publishing the brief, the Seventh Circuit itself has permanently introduced the plaintiff’s name onto the Internet, where it will be archived and Google-accessible for the rest of her life.
This administrative error is outrageous. Courts, especially in these days where inforamtion is distributed online, must be more careful about protecting people’s privacy. Mistakes seem to happen a lot in this regard. In the Kobe Bryant rape case, for example, the court mistakenly emailed sealed transcripts to the media. In re People v. Bryant, 94 P.3d 624 (Colo. 2004).
Courts have been spending a lot of time addressing how to balance privacy with greater electronic access to court files, but they have not put in place a system to ensure greater care in protecting the privacy of litigants — even when their policies dictate that litigants’ privacy is to be protected.
Thanks to How Appealing which first pointed out the case and the court’s administrative gaffe.
UPDATE: Will Baude offers his thoughts on the case here.
November 22, 2005 at 10:30 am
Posted in: Privacy
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Responses (7)
Paul M. Secunda - November 22, 2005 at 11:56 am
As far as recent pseudonymous litigation in the U.S. Supreme Court, see also City of San Diego v. Roe (U.S. Dec. 2004), in which the Court, per curiam, upheld the discharge of a San Diego policeman for producing and distributing porn starring himself (under a pseudonym) on eBay. Fascinating First Amendment public employee case that I thought of when I read this and Lior’s post.
Concurring Opinions - November 22, 2005 at 12:18 pm
More on Pseudonymous Litigation
Howard Bashman offers these further thoughts about the issue of pseudonymous litigation and the sex tape case I blogged about earlier today: In terms of assessing blame, however, in my view it is the attorney for the pseudonymous party who…
Ciarand Denlane - November 22, 2005 at 1:04 pm
“Thanks” to How Appealing? I enjoy reading that website. So do a lot of other people. Isn’t that a problem in this context? By highlighting the publication of the name in an appellate brief that might have otherwise been little read or noticed, Mr. Bashman may have greatly magnified the privacy invasion he was deploring. It’s hard to say, for sure, as the key words in the prior sentence are “might” and “may,” so perhaps Bashman has done the broader cause of litigant privacy a service. But it still strikes me that an e-mail to the clerk of the court would have been better than a posting on a prominent website.
arbitraryaardvark - November 22, 2005 at 7:33 pm
For those who havent had the pleasure of dealing with the 7th circuit’s electronic filing system, it is my guess it was her lawyer who put the document online, as instructed, and failed to make arrangments to have the key info under seal.
I had a lower court in indianapolis unfairly, I thought, dismiss plaintiff “Anonymous” in Majors v Abell, a case about anonymity. Since it is reviewable under an abuse of discretion standard, I didn’t appeal on that ground – there were more important errors at issue, but it was an early clue we faced a hostile court.
Ted - November 23, 2005 at 11:08 pm
I agree with Aardvark. Before criticizing the court for an “outrageous” error, be sure that there’s an error. If Doe made a motion to file part of the brief under seal, and the motion was granted, there’s an outrageous error. If she didn’t, the clerk has no way of knowing that the pdf file that was submitted is supposed to have a redacted 26.1 submission, and Doe has no one to blame but her attorney. I hate to accuse you and Lior of ivory-towerism, but any attorney with experience with documents filed under seal knows that a separate motion needs to be made in the appellate court. You’ll note that Bashman doesn’t blame the court, but simply asks who bears responsibility.
Daniel J. Solove - November 23, 2005 at 11:57 pm
Ted — check out my follow-up post here where I discuss the problems with the lawyers.
Busy Lawyer - December 31, 2006 at 1:38 pm
thanks SO MUCH for sharing your expertise; last minute pleading — very helpful!!!
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