White Paper: Anonymous Civil Litigants

A Problem of Court Access
Feature
Page Number: 
58

Plaintiffs are often allowed to proceed anonymously in the Fairfax, Va., courts under a state law.

By Tom Isler, McCormick Foundation Legal Fellow. This is adapted from a longer "white paper" that will be available on our web site soon.

Last June, a jury in Fairfax County, Va., awarded $500,000 to a medical patient who alleged that, while he was undergoing a colonoscopy, two doctors disparaged and defamed him to each other and to the medical staff in the operating room. The patient, who was fully anesthetized for the procedure, never would have heard the doctors’ running commentary — joking that he suffered from syphilis and tuberculosis, which he did not; ridiculing his masculinity; suggesting that doctors found him tiresome and annoying — except that he had recorded the audio of the entire operation on his cell phone because, he claimed, he thought he would have difficulty understanding or recalling post-procedure instructions and wanted to record them. The patient was awarded $100,000 for defamation (for the comments about syphilis and tuberculosis), $200,000 for medical malpractice, and $200,000 in punitive damages.

The case and verdict garnered widespread media attention. The Washington Post even obtained and posted excerpts of the audio recording on YouTube.[1] But in all of the media coverage, one detail was absent: the patient’s name.

In his complaint, the patient identified himself only by his initials, “D.B.,” and stated that he was “commencing suit anonymously pursuant to Code of Virginia § 8.01-15.1,” a provision of state law that sets out the criteria for challenging the “propriety” of maintaining “anonymous participation” in a “proceeding commenced anonymously.” D.B. never sought the court’s permission to proceed anonymously. He didn’t file any motion to withhold his full name, and the defendants never formally challenged his anonymity. The court never entered any order, written or oral, addressing anonymity. The issue simply never came up. D.B. decided he didn’t want to reveal his name, and that was that. (The lawsuit and The Washington Post both named the doctor, Tiffany M. Ingham.)

Throughout the country, anonymous or pseudonymous litigation[2] is generally disfavored, but courts have considerable discretion to permit it. Frequently, as in D.B.’s case, courts permit the arrangement without explanation or analysis. While some jurisdictions now have local rules or statutes that articulate a standard for pseudonymous litigation and factors for the courts to weigh, the case law related to anonymity is far less developed than doctrine concerning courtroom access or sealed documents. As recently as 2007, an appellate court in Indiana wrote that “[a]lthough anonyms have appeared in Indiana state cases, there is no reported Indiana decision where the use of anonym has been challenged. Hence, we have no specific criteria to apply.” Doe v. Town of Plainfield, 860 N.E.2d 1204, 1206–07 (Ind. Ct. App. 2007). Federal case law is more abundant, but not all circuit courts of appeals have yet ruled on the standards governing anonymity.[3]

Reasons for this disparity may be that anonymity requests are less common than sealing or closure orders, or that litigants and the press do not challenge anonymity as much as they do other protective orders, resulting in fewer court orders and opinions. Another reason may be that, when the issue is addressed, it is frequently resolved in oral or written orders that do not end up in published reporters or searchable legal databases like Westlaw or Lexis, making the precedent harder to find.[4] And even when the issue is addressed in writing or formal opinions, the discussion is frequently without analysis.[5] Courts may simply be less focused on the issue because they do not view a litigant’s identity as an important aspect of court transparency, because no courtroom is being closed to the public and no document is being sealed.

But anonymity or pseudonymity is a form of court closure, a kind of redaction or sealing that withholds from the public potentially valuable information about pending litigation, and should be treated as such by the courts. The benefits of an open and transparent court system and the press’s ability to report on legal proceedings — subjecting all players to extensive scrutiny, guarding against a miscarriage of justice, giving assurance that proceedings are fair, discouraging perjury and decisions based on bias, providing context to the legal proceedings[6] — are all potentially undermined when the public and the press cannot tell who has invoked the power of public courts to resolve disputes. And when parties are permitted to litigate under pseudonyms, other secrecy tools_ — sealed documents, gag orders, courtroom closures — often will be employed as well, further limiting public oversight of those matters.[7]

Individuals are not the only civil litigants who request to use pseudonyms. Corporations also seek anonymity, raising different and potentially broader issues of public concern. For example, baby carrier manufacturing company ErgoBaby unsuccessfully tried to remain anonymous while suing the U.S. Consumer Product Safety Commission to keep a government safety report about one of its products out of the Commission’s online database.[8] Anonymity raises still other questions when invoked by, or bestowed upon, a criminal defendant, whose prosecution and imprisonment may be shrouded in secrecy.[9]

There may well be situations where a litigant’s anonymity should be maintained, for example, when there is an imminent risk of physical harm to the litigant if his or her identity is revealed, or if revealing the litigant’s identity would expose him or her to criminal liability. But courts should recognize that anonymity is a form of closure, redaction or sealing, and require litigants seek permission to use a pseudonym, so that the parties themselves do not solely determine whether to withhold their identity from the public. Courts should be required to enter specific findings on the record justifying the use of a pseudonym, in recognition of the public interest in the openness of court proceedings. Anonymity should be permitted only if the litigant demonstrates a compelling need and if less restrictive measures would not protect the harm to be avoided, consistent with First Amendment principles.

AP Photo

Norma McCorvey, right, may be the most famous anonymous plaintiff ever; she was Jane Roe in the landmark 1973 abortion rights lawsuit Roe v. Wade.

Overview of case law regarding pseudonymous litigation

It is difficult to quantify how prevalent pseudonymous litigation is, because courts employ an endless array of pseudonyms beyond the popular monikers “John Doe” or “Jane Roe.” There are many variations on the “Doe” theme: Boe, Coe, Foe, Hoe, Koe, Loe, Moe, Noe, Poe, Soe, Voe, Woe, and Zoe.[10] Some pseudonyms are descriptive (“Pseudonym Taxpayer,” “Patient A”),[11] while others are more evocative (“Jane Endangered,” “Unwitting Victim”).[12] Still others fail to announce their fiction: “Alfred Little,” “David Becker.”[13] And then there are litigants who proceed only by their initials.

The U.S. Supreme Court has never addressed when parties should be permitted to litigate without using their real names, although cases like Roe v. Wade[14] and, more recently, Adoptive Couple v. Baby Girl,[15] appear to show tacit approval of the practice in certain situations.

Courts generally reject a categorical approach to anonymity and instead weigh the circumstances of each case.[16] Courts tend to allow the use of pseudonyms when the interests favoring anonymity outweigh the public interest in disclosure. Although some courts, including the Third Circuit, consider the “magnitude of the public interest in maintaining the confidentiality of the litigant’s identity,” Doe v. Megless, 654 F.3d 404, 409 (3d Cir. 2011) (emphasis added), more federal circuit courts ask whether “the plaintiff’s interest in anonymity” outweighs “the public interest in disclosure and any prejudice to the defendant.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (citing cases from the Fifth, Ninth, Tenth and Eleventh Circuits) (emphasis added).

In practice, courts often grant anonymity “when identification creates a risk of retaliatory physical or mental harm,” “when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature,” or “when the anonymous party is ‘compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.’” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). Some federal circuit courts have attempted to identify more specific factors to assess the strength of the litigant’s need for anonymity and the likelihood and severity of harm that would result from disclosure.[17] But even within this framework, courts’ discretion is broad.

Anonymity is most prevalent in cases involving juveniles or victims of sex crimes. Many states have statutes or court rules specifically addressing anonymity in these subcategories.[18] Pseudonyms are also frequently requested and granted in matters involving reproductive rights (such as abortion), mental illness, or other cases in which the litigant must disclose conduct or a medical condition or an immutable characteristic that carries significant social stigma.[19]

Courts generally refuse to grant anonymity when the litigant seeks only to prevent unwanted publicity, personal embarrassment or economic harm.[20] But others have held that “an adequate threat of personal embarrassment and social stigmatization” is proper grounds for granting anonymity. See Jane Roes 1-2 v. SFBSC Mgmt., LLC, --- F. Supp. 3d ---, No. 14-3616, 2015 WL 163570, at *3 (N.D. Cal. Jan. 12, 2015) (allowing two exotic dancers to use pseudonyms in a Fair Labor Standards Act class action lawsuit against a nightclub operator).

Although many courts speak of permitting pseudonyms only in “exceptional circumstances,”[21] in practice, courts tend to conduct simple balancing tests to resolve disputes about pseudonyms.

Unfortunately, those balancing exercises tend to systemically undervalue the somewhat abstract benefits of court transparency in favor of more immediate, concrete harms alleged by litigants. See Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 551 (D.N.J. 2006) (discounting the public interest in openness because “this interest exists in some respect in all litigation and does not outweigh the strength of the factors in favor of Plaintiff’s use of a pseudonym”). A better approach would be to require compelling reasons for anonymity. Under such a system, courts would still have discretion to grant anonymity in appropriate cases, but would resolve issues in favor of openness when litigants do not have substantial privacy interests to protect and who merely seek to avoid publicity, notoriety, or embarrassment.

Ergobaby, a manufacturer of baby carriers, fought to keep its name anonymous as it sued the Consumer Product Safety Commission over a report about one of its products.

Making the case for disclosure

Journalists who find themselves covering a proceeding with an anonymous litigant and who want to challenge the use of a pseudonym, may want to seek to intervene or more informally invite the court to review the use of pseudonyms. The following are arguments that could be made against anonymity.

Disclosure is the default; pseudonyms are disfavored. Most courts have rules that require parties to provide their names on complaints and court filings. Notably, according to the Federal Rules of Civil Procedure, in federal court the “title of the complaint must name all the parties . . . .” Fed. R. Civ. P. 10(a). A presumption of disclosure should be the starting point for anonymity analysis, and those seeking to use a pseudonym should have to justify any departure from the normal procedure. See, e.g., Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) (noting the presumption against anonymity). Granting anonymity to litigants is actively “disfavored.” See, e.g., Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997) (Posner, J.).

Pseudonymity is a form of court closure, sealing or redaction. Permitting anonymity has the effect of shutting the public out of the courtroom for any discussion of the litigant’s identity, or placing a litigant’s name under seal in every document filed, or redacting every reference to a litigant’s name, all of which implicate the First Amendment and common law rights of access to civil proceedings and documents.[22] Although some courts resist this analogy, because the public is not physically barred from the courtroom or denied access to any court documents, access cases turn on access to information and the ability to scrutinize the judicial process, not on gaining physical entry to a courtroom or access to pieces of paper or digital files. Withholding names of litigants denies access to information and inhibits the public’s ability to scrutinize the judicial process. Invoking this familiar and established doctrine may help to underscore the public interests at stake and the effect pseudonyms have on the public’s understanding of a lawsuit. It may also signal to the court the need to justify any order granting anonymity.

Pseudonymity should be analyzed under a First Amendment standard. Withholding a litigant’s identity should be subject to the U.S. Supreme Court’s First Amendment test for denying public access to court proceedings or records, which requires “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enter. Co. v. Superior Court, 487 U.S. 1, 9 (1986) (“Press-Enterprise II”).[23] The Supreme Court employs an “experience and logic test” to determine whether a First Amendment right of access attaches by asking “whether the place and process” at issue “have historically been open to the press and general public,” as well as “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. at 8.

• Historically, litigants’ names have been public. Both experience and logic dictate that the public have presumptive access to litigants’ names. The use of pseudonyms in litigation “is without precedent in English or early American common law, when the pseudonym ‘John Doe’ was used only to designate a defendant in the pleadings until his real name could be ascertained or to designate the fictitious plaintiff in the action of ejectment.” Steinman, supra, at 18. In fact, only within the last 50 years has the practice of suing anonymously, or proceeding as an identified, pseudonymous defendant, become more common. See id. at 1 n.2 (“federal decisions concerning Doe plaintiffs or known Doe defendants are rare prior to 1969”). Because “historically both civil and criminal trials have been presumptively open,” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980), and because the use of pseudonymity is a modern invention, a presumptive right of access to litigants’ identities enjoys the favorable judgment of experience.

• Access to litigants’ names helps the judiciary functions properly. Access to a litigant’s identity helps the press fulfill its beneficial role that the courts have described in access cases. Openness, generally, gives assurance that the court is fulfilling its public duty appropriately. Transparency also discourages perjury and bias, and heightens public respect for the judiciary. The benefits of public scrutiny are more limited when the public does not have access to a litigant’s name, because pseudonymity makes it more difficult for the press or the public to root out perjury or bias.[24] Knowledge that court documents and proceedings are open to the public should encourage truthfulness and discourage frivolous lawsuits or unsupportable claims or assertions. In addition, disclosure of a litigant’s identity may be necessary to conduct jury selection properly.[25]

The common law standard for court closures and sealing should prevent the use of pseudonyms in many cases. Courts do not analyze all sealing or redaction requests under a First Amendment standard. Instead, some requests are analyzed under a less rigorous common law standard, which effectively requires a balancing of interests. Many existing tests for the use of pseudonyms also adopt this kind of balancing test. By invoking the benefits of openness from court access and sealing cases, one can argue that public benefits in openness outweigh private desire for anonymity. Challengers also may ask the court to look not at the private need for anonymity but the societal interest in permitting the litigant to proceed under a pseudonym. Only in the face of compelling, countervailing societal needs should the presumption of openness be overcome.

Pseudonymity denies the public valuable information about the use of public courts. Although a legal case may not turn on the particular identity of a litigant, that information may be central to the public’s broader understanding of the case, the law, and the functioning of the judiciary. Anonymity greatly hinders, for example, a journalist’s ability to research the litigant’s background, including business interests or political interests. Anonymity also prohibits journalists from identifying family members, friends, employers, coworkers, classmates and other acquaintances who may help the journalist put a given dispute in context. Knowing a litigant’s identity may help illuminate such details as the motivation for suing; his or her relationships with defendants, other trial participants, or the court; or the litigant’s credibility, among other things. Such information may be instrumental to the public’s understanding of how the legal system works and to advocate for changes in the law — even if the information does not make a legal difference in a particular lawsuit.

The public has a right to know who is using the public court system. Courts are funded with public money, and litigants who invoke the power of the courts are seeking a public benefit. One tradeoff for receiving that public benefit should be disclosure of one’s identity.[26] This rationale is particularly strong when litigants are challenging democratically enacted laws, because the public has an interest in knowing who seeks to disrupt the legal status quo.

Critics of this “waiver” rationale argue that forcing plaintiffs to reveal their identity may discourage them from filing suit at all, effectively precluding them from vindicating their own rights. But surely a stringent standard for permitting the use of pseudonyms would still permit courts enough discretion to permit anonymity when absolutely essential to a plaintiff’s ability to vindicate their own legal rights (after all, the public has an interest in allowing individuals to pursue enforcement of their rights), while making it more difficult for plaintiffs who merely wish to avoid publicity, criticism, or embarrassment.

Openness may discourage frivolous or harassing lawsuits. Disclosure and public scrutiny may simultaneously discourage plaintiffs from bringing frivolous, harassing or unnecessary suits.

Openness promotes the appearance and reality of fairness in the courts. The public is more apt to believe that courts are performing their duties responsibly when key facts, such as a litigant’s identity, are not hidden from view. “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 572 (1980).

Litigants should not be permitted to reverse the default presumption of openness. Many litigants seeking anonymity attempt to flip the framework of the analysis by arguing that disclosure is not necessary for the lawsuit to progress or that there is little or no public interest in ascertaining the plaintiff’s identity. These arguments obfuscate the fact that the court system has a default preference for openness, and those seeking anonymity must justify any departure from that practice. By focusing on whether the particular defendant or the public has compelling reasons for disclosure, litigants sidestep the main issue of whether there is a strong private or societal interest in anonymity that outweighs the recognized interests in openness.

Litigants may lack compelling reasons for pseudonymity. Mere embarrassment or a desire to avoid publicity should not be sufficient to justify anonymity. Neither should the mere presence of sensitive information, or general or conclusory assertions of a threat or risk of physical or pecuniary harm. Many plaintiffs might prefer anonymity, but they should demonstrate a sufficiently compelling need, and courts should document that need with specific findings. If the court system permitted anonymity whenever a litigant could avoid embarrassment, humiliation, or ridicule, anonymity likely would be rampant, in each instance making it harder for the public and press to monitor court proceedings and accept the work of the courts as unbiased and trustworthy.

Less restrictive means may be available to prevent the perceived risk. In many cases, narrowly tailored sealing or redaction will be able to protect truly sensitive and highly personal data, or other information comprising the basis for the anonymity request.

Conclusion

The use of pseudonyms has been consistently permitted in litigation without the proper level of attention from the courts, given that anonymity is a form of court closure, sealing or redaction. Courts should require litigants seeking to proceed under a pseudonym to justify the need to depart from the normal practice of disclosure, and should grant or deny its use after making specific findings on the record that a compelling interest outweighs the public interest in disclosure, and that less restrictive alternatives would not prevent the harm to be avoided.

The news media, whose newsgathering stands to improve with disclosure, should be attentive to the casual, unjustified use of pseudonyms, and place pressure on the courts to justify secrecy. Requiring litigants and courts to walk through these procedural steps, and paying close attention to the validity of claims for the need for anonymity, should reduce unnecessary anonymity while permitting it in justified cases.

Endnotes:

[1] See The Washington Post, Audio: Anesthesiologist trashes sedated patient, YouTube (June 24 2015), https://youtu.be/Kar52idHgho.

[2] These terms are used mostly interchangeably throughout this paper to refer to litigation being brought or defended by known individuals identified in court papers only by a pseudonym or by their initials, rather than their full names. The use of “John Doe” or other pseudonyms in litigation to refer to individuals who have not yet been identified is outside the scope of this paper. It likewise does not address anonymous juries (examined by the Reporters Committee in a previous paper, available at https://www.rcfp.org/secret-justice-anonymous-juries) or the subcategory of anonymous parties defending anonymous speech online (see https://www.rcfp.org/category/tags/anonymous-speech), or the issue of criminal prosecutions against known, pseudonymous defendants.

[3] The First, Eighth, D.C., and Federal Circuits do not appear to have addressed this issue.

[4] See, e.g., Order, Doe v. Corr. Corp. of Am., No. 3:15-cv-68 (M.D. Tenn. Jan. 27, 2015), ECF No. 11 (placing the words “ORDER: Motion granted,” with the magistrate judge’s signature, in the upper-right-hand margin of Plaintiff’s Motion for Protective Order); Order, Patient A v. Vt. Agency of Human Servs., No. 5:14-cv-206-GWC (D. Vt. Oct. 27, 2014), ECF No. 3 (granting the plaintiff’s motion to proceed under a pseudonym in a text order on the docket, without analysis).

[5] See, e.g., United States v. Doe, Nos. 13-50614 & 14-50015, 2015 WL 3483962, at *1 n.1 (9th Cir. Jun. 3, 2015) (stating “[w]e grant defendant appellant’s motion to refer to him by a pseudonym in this disposition,” without further analysis); see also Joan Steinman, Public Trial, Pseudonymous Parties: When Should Litigants Be Permitted to Keep Their Identities Confidential?, 37 Hastings L.J. 1, 43 n.179 (1985) (“In the vast majority of pertinent cases the courts have allowed, and perhaps sometimes disallowed, pseudonymity without analysis and consideration of the competing interests in access. If analysis was done, it was not reflected in published opinions.”)

[6] See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (describing benefits of openness); Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (same).

[7] See, for example, the case of Dwyer v. United States, No. 14-4387 (2d Cir. Feb. 26, 2015), in which a reporter is challenging extensive secrecy in a criminal case against a John Doe defendant. The Reporters Committee submitted an amicus brief in support of the reporter’s appeal, which is available at http://rcfp.org/x?rfn. As of this writing, the matter is still pending.

[8] See Company Doe v. Public Citizen, 749 F.3d 246, 254 (4th Cir. 2014); Alison Frankel, How ‘Company Doe’ — now revealed as ErgoBaby — triggered 1st Amendment case, Reuters, May 8, 2014, available at http://goo.gl/fjvwVg, archived at https://perma.cc/6ASW-AG39.

[9] See United States v. Doe, 778 F.3d 814, 817 n.1 (9th Cir. 2015) (granting defendant’s motion for pseudonymity because “the defendant may face ‘a risk of serious bodily harm if his role on behalf of the Government were disclosed to other inmates’”).

[10] See, e.g., Foe v. Cuomo, 892 F.2d 196 (2d Cir. 1989) (using pseudonyms Frank Foe, Walter Woe and Wilma Woe).

[11] See Pseudonym Taxpayer v. Miller, 497 F. Supp. 78 (D.N.J. 1980); Patient A v. Vt. Agency of Human Servs., No. 5:14-cv-206-GWC, 2015 WL 589367 (D. Vt. Feb. 11, 2015).

[12] See Jane Endangered v. Louisville/Jefferson Cnty. Metro Gov’t Dep’t of Inspections, No. 3:06CV-250-S, 2007 WL 509695 (W.D. Ky. Feb. 12, 2007) (using pseudonyms “Jane Endangered” and “Jane Imperiled”); Unwitting Victim v. C.S., 47 P.3d 392 (Kan. 2002).

[13] See Deer Consumer. Prods., Inc. v. Little, 938 N.Y.S.2d 767 (N.Y. Sup. Ct. 2012); In re State v. Becker, No. 0809008237, 2009 WL 2424659 (Del. Fam. Ct. Jun. 25, 2009).

[14] 410 U.S. 113 (1973).

[15] 133 S. Ct. 2552 (2013).

[16] See, e.g., Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) (“We advance no hard and fast formula for ascertaining whether a party may sue anonymously.”); Doe v. Howe, 607 S.E.2d 354, 356 (S.C. Ct. App. 2004) (“We believe the better practice is one which avoids a rigid, formulaic approach, thereby allowing the trial courts a degree of flexibility in this fact-sensitive area.”).

[17] The Third Circuit, for example, has identified nine factors:

(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant’s identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; . . . (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. . . . [(7)] the universal level of public interest in access to the identities of litigants; [(8)] whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s interest which is normally obtained; and [(9)] whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated.

Megless, 654 F.3d at 409. See also Does I thru XXIII, 214 F.3d at 1068 (identifying several factors); Sealed Plaintiff, 537 F.3d at 190 (collecting factors from federal case law).

[18] See, e.g., California Rules of Court, rule 8.401 (providing for anonymity of juveniles in court proceedings); Fla. Stat. § 92.56(3) (permitting pseudonyms for certain categories of victims of crimes against children or certain sexual offenses); Tex. Civ. Prac. & Rem. Code § 30.013(c)(3) (providing for pseudonyms for sexual abuse of a minor).

[19] The privacy organization Without My Consent has a useful round-up of case law, court rules, and statutes from around the country related to pseudonymous litigation on its website, http://www.withoutmyconsent.org/50state. The group approaches pseudonymity from a different perspective than I do. It describes itself as “seeking to combat online invasions of privacy” and “empower[ing] individuals to stand up for their privacy rights and inspire meaningful debate about the internet, accountability, free speech, and the serious problem of online invasions of privacy.” Who We Are, Without My Consent, http://www.withoutmy consent.org/who-we-are (last visited Aug. 19, 2015), archived at http://perma.cc/78MS-E63K.

[20] See Megless, 654 F.3d at 408 (“That a plaintiff may suffer embarrassment or economic harm is not enough.”); Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) (“the fact that Doe may suffer some personal embarrassment, standing alone, does not require the granting of his request to proceed under a pseudonym”); Roe v. Bernabei & Wachtel PLLC, --- F. Supp. 3d ---, No. 14-cv-1285-TSC, 2015 WL 1733648, at *4 (D.D.C. Mar. 26, 2015) (“Personal embarrassment is normally not a sufficient basis for permitting anonymous litigation.”) (citing cases); Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 573 (S.D.N.Y. 2004) (denying anonymity when the party sought only to prevent economic harm).

[21] See, e.g., Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997) (Posner, J.).

[22] As the U.S. Court of Appeals for the Fifth Circuit stated in Doe v. Stegall, “[p]ublic access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings.” 653 F.2d 180, 185 (5th Cir. 1981). The court acknowledged that the “equation linking the public’s right to attend trials and the public’s right to know the identity of the parties is not perfectly symmetrical,” but, “[n]evertheless, there remains a clear and strong First Amendment interest in ensuring that ‘(w)hat transpires in the courtroom is public property.’” Id.

[23] The Press-Enterprise standard was applied by the Supreme Court in criminal cases; the Court has not directly addressed whether the constitutional right applies to civil proceedings. However, the California Supreme Court noted that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999).

[24] See Brett Lake, Deputy state’s attorney gave false testimony, records show, Carroll County Times, Apr. 25, 2012, archived at http://perma.cc/HKS2-LJ5D (reporting on evidence obtained by the newspaper that contradicted testimony given by a law enforcement officer). The deputy later lost a lawsuit against the newspaper for defamation. See Chuck Tobin & Drew Shenkman, Report That Prosecutor Gave ‘False Testimony’ Not Actual Malice, MLRC Media Law Letter, August 2013, archived at http://perma.cc/EN6Q-Z2FB.

[25] See A.B.C., 660 A.2d at 1204 (“in order to question potential jurors on voir dire about their knowledge of any of the parties, including possible connection with the corporate defendant as a possible employer of a prospective juror or a juror’s family member, or even as a stockholder, the names of the parties would have to be disclosed in open court to the jurors”).

[26] Justice Scalia made an analogous point in Doe v. Reed, in which the Supreme Court held that disclosure of referendum signatures did not violate the First Amendment rights of the signatories. See Doe No. 1 v. Reed, 561 U.S. 186, 228 (2010) (Scalia, J., concurring) (“There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”)