John Doe Is Alive and Well: Designing Pseudonym Use in American Courts

John Doe Is Alive and Well: Designing Pseudonym Use in American Courts Donald P. Balla I. INTRODUCTION This year the Arkansas Supreme Court took its first good look at the issue of pseudonyms. Three members of an undocumented immigrant family brought suit in the circuit court under the names of John, Jane, and Junior Doe. 1 They challenged an Arkansas statute that removes or denies a driver s license to any person who lacks documents showing citizenship or legal immigration status. 2 The Doe plaintiffs sought declaratory and injunctive relief. 3 However, they were never close to prevailing. The State, without answering the complaint, objected to the use of pseudonyms in a Rule 12(b)(6) motion to dismiss, citing Arkansas Rules of Civil Procedure 8(a), 10(a), and 17(a). 4 The judge agreed, and the plaintiffs appealed to the Arkansas Supreme Court. Although the supreme court affirmed the trial court s decision, Justice Paul E. Danielson, writing for the court, added this interesting comment: In his brief and at oral argument, appellants counsel urged this court to consider adopting rules to provide guidance on this issue in future litigation. We agree that some rules in this area are essential and, therefore, we refer this matter to the Civil Practice Committee. 5 Professor of Business and Law, John Brown University, Siloam Springs, Arkansas. J.D., University of Arkansas School of Law; CPA, University of Illinois; B.M., Southern Illinois University; M.M., Florida State University; M.S.F.S., The American College, Bryn Mawr, Pennsylvania. 1. Plaintiff s Second Amended Complaint, Doe v. Weiss, No. Civ. 2008-1287-1 (Benton Cnty. Cir. Ct. Aug. 4, 2008). 2. ARK. CODE ANN. 27-16-1105(a) (Repl. 2008). 3. Plaintiff s Second Amended Complaint, supra note 1, at 12. 4. Doe v. Weiss, 2010 Ark. 150, at 2. These rules are essentially the same as the federal rules and have the same numbers. 5. Id. at 6.

692 ARKANSAS LAW REVIEW [Vol. 63:691 Wisely, the Arkansas Supreme Court sidestepped the patchwork approach to pseudonym rules that has plagued the federal circuit courts. When Arkansas s Civil Practice Committee tackles the Arkansas Supreme Court s assignment, the result could be the first comprehensive pseudonym policy in America. If done thoughtfully, Arkansas s rules could influence the United States Supreme Court when it finally resolves the differences among the circuits. This article is about what those rules should be. Currently there are no court rules about pseudonym use. The rules of civil procedure, both federal and in Arkansas, are silent on the matter. Decisions opposing pseudonym use cite the lack of authority allowing it, while courts allowing the use of pseudonyms point out the lack of a ban. 6 In 2008, Professor Ross E. Cheit decried the lack of uniform standards for pseudonyms, noting that the matter seem[ed] to be entirely in the discretion of judges. 7 The 2007 Sedona Conference, a legal think-tank, reporting on what they considered to be the best practices for keeping names confidential, called on courts to provide clear guidelines to civil litigants. 8 In spite of this rule vacuum, some judges who have denied pseudonym petitions still cite the federal rules failure to authorize the practice. 9 Joan Steinman, in her 1985 article still the most quoted and influential of all pseudonym studies considers this a mistake: Almost all courts that have considered this question, however, have held that the Rules silence on the issue, or even their contrary implications, are not dispositive. 10 Nevertheless, almost all pseudonym cases that reach the appellate level begin with Rules 10(a) and 17(a) of the Federal Rules of Civil Procedure or their state equivalents. 11 Arkansas 6. See, e.g., Ew v. N.Y. Blood Ctr., 213 F.R.D. 108, 109-10 (E.D.N.Y. 2003); Doe v. Ind. Black Expo, Inc., 923 F. Supp. 137, 138-39 (S.D. Ind. 1996). 7. Ross E. Cheit, Tort Litigation, Transparency, and the Public Interest, 13 ROGER WILLIAMS U. L. REV. 232, 275 (2008). 8. THE SEDONA CONFERENCE WORKING GROUP ON PROTECTIVE ORDERS, CONFIDENTIALITY & PUBLIC ACCESS, THE SEDONA GUIDELINES BEST PRACTICES ADDRESSING PROTECTIVE ORDERS, CONFIDENTIALITY & PUBLIC ACCESS IN CIVIL CASES 19 (2007) [hereinafter SEDONA GUIDELINES]. 9. See, e.g., Ind. Black Expo, 923 F. Supp. at 139. 10. Joan Steinman, Public Trial, Pseudonymous Parties: When Should Litigants Be Permitted to Keep Their Identities Confidential?, 37 HAST. L.J. 1, 35 (1985). 11. See, e.g., Ind. Black Expo, 923 F. Supp. at 139.

2010] PSEUDONYM USE IN AMERICAN COURTS 693 Rule of Civil Procedure 10(a) reads, Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number and a designation as in Rule 7(a). In the complaint, the title of the action shall include the names of all the parties.... The rule contains no guidance as to what parties should do to keep their names confidential. An anonymous complaint one with a missing name would clearly violate Rule 10(a) and could properly be dismissed with a Rule 12(b)(6) motion. However, as so many pseudonym cases show, pseudonyms, where allowed, do not produce defective complaints. The pseudonym is the party s name, albeit not his given one, and seems to fulfill Rule 10(a). Rule 17(a) of the Arkansas and federal rules similarly lacks any discussion of pseudonym use: Every action shall be prosecuted in the name of the real party in interest. 12 Rule 17, as one judge wrote, has more to do with getting the right people than about getting the right name. 13 So the Rules of Civil Procedure contain a void that new pseudonym rules could fill. Thoughtfully designed pseudonym rules offer hope for a consistent and cohesive policy. Legal practitioners throughout Arkansas and the United States are calling for clarity in this area. Let us be proud that Arkansas courts have heard the call. II. THE BASIS FOR PSEUDONYMS: THE CONSTITUTION AND JUSTICE A. Past Decisions Have Lacked a Common Foundation One reason for the split of opinions in the appellate courts on pseudonym use is that courts have based their opinions upon different foundations, limited by the arguments of counsel from both sides. In many pseudonym cases, the issue never comes up. Before Doe v. Weiss, there were seven Arkansas Supreme Court cases with Doe as a plaintiff; defendants objected to the use of a pseudonym in only one case. 14 Even in famous federal 12. ARK. R. CIV. P. 17(a). 13. See Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 504 n.27 (M.D. Pa. 2007). 14. Doe v. Ark. Dep t of Human Servs., 357 Ark. 413, 128 S.W.3d 107 (2004); United Food and Commercial Workers Int l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003); Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002); Stilley v. City

694 ARKANSAS LAW REVIEW [Vol. 63:691 pseudonym cases such as Roe v. Wade 15 and Plyler v. Doe, 16 the parties never placed the pseudonym issue before the United States Supreme Court. Early federal appellate decisions emphasized the authoritative weight on the side of pseudonym opponents. For some, the issue went no further than the use of the word name in Rules of Civil Procedure 10(a) and 17(a) and the assumption that a pseudonymous name is not good enough. 17 Others considered open courts to be the highest value trumping all other constitutional mandates. As one court wrote, [I]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts. 18 Others point to a series of First Amendment decisions 19 hammered out in criminal cases 20 where the media has consistently won access to most court information. [H]aving judicial proceedings fully open to the public so that the public may fully assess the merits of the lawsuit and the quality of the courts is in the public interest. 21 Courts issuing these decisions considered pseudonym use as a First Amendment violation. Over time, federal appellate courts began permitting pseudonyms on a seemingly ad hoc basis. The open-court argument operated only as a presumption and not as an of Conway, 343 Ark. 124, 31 S.W.3d 870 (2000); Doe v. Union Pac. R.R. Co., 323 Ark. 237, 914 S.W.2d 312 (1996); Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993); Doe v. Porter, 3 Ark. 18, 1840 WL 269 (1840). Only in Doe v. Union Pacific Railroad Co. did the defendants object. 323 Ark. At 239, 914 S.W.2d at 313. 15. 410 U.S. 113 (1973) (challenging an abortion law). 16. 457 U.S. 202 (1982) (challenging a Texas law denying education to undocumented children). 17. E.g., Roe v. New York, 49 F.R.D. 279, 281 (S.D.N.Y. 1970). Four boys challenged the care they received from a state juvenile school. Id. The court ruled that their complaint was a nullity because the court had to be able to identify from the complaint at least one plaintiff by name. Id. at 280-81. 18. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (alteration omitted) (quoting Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997)). The Tenth Circuit considers a complaint void from a fatal jurisdiction flaw if permission to file pseudonymously is not granted before filing. W.N.J. v. Yocom, 357 F.3d 1171, 1172 (10th Cir. 2001). 19. E.g., Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 549 (D.N.J. 2006). 20. SEDONA GUIDELINES, supra note 8, at 16 (discussing public-access concerns in criminal cases). 21. Qualls v. Rumsfeld, 228 F.R.D. 8, 13 (D.D.C. 2005)

2010] PSEUDONYM USE IN AMERICAN COURTS 695 absolute, unreviewable license to deny their use. 22 The early decisions gave the impression that a court could tell whether a petitioner could proceed pseudonymously simply by the type of case. However, exceptions arose and the type-of-case method of deciding on pseudonym use broke down. Courts began weighing various pros and cons, 23 but these weighing processes were so loose and undefined that decisions could easily boil down to the arbitrary leanings of individual judges. Steinman declared this ad hoc process of deciding to permit pseudonyms unsatisfactory. 24 Because of these diverse foundations, gleaning a pseudonym policy from existing appellate court decisions requires discernment. Writers of pseudonym policy will not be reading cases for precedent. They will be looking for policies that make the most legal sense. Courts deciding future pseudonym cases need a logical, wellunderstood foundation if the American legal system is ever going to offer parties something solid to stand on. B. Courts Should Base Pseudonym Decisions on Justice and the Constitution 1. Justice Is Equalizing the Scales The purpose of court rules is to balance the scales of justice for injured members of the public. We all know what justice looks like. She is the blindfolded lady holding the balance. When people suffer harm, they sense the weight of loss on their side of the balance. Justice is the process of evening the balance. When the injured cannot even the balance themselves, they turn to the courts for help. Usually the courts help. When court rules add unnecessary extra harm to one party s side of the balance, the court ceases to be a tool of justice. Of course, some harm is inescapable. Justice, for example, is expensive, and the cost of the legal system cannot be ignored. So court systems do their best and learn to live with unfixable imperfections. But where the added harm is so great 22. James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). 23. A survey of the practice used by other circuits demonstrates a consistent trend towards the use of a balancing of the equities-type test.... Hartford Life, 237 F.R.D. at 549. 24. Steinman, supra note 10, at 2.

696 ARKANSAS LAW REVIEW [Vol. 63:691 that it effectively bars access to the courts, and where the solution is simple with minimal harm to adverse parties and the public, court systems have redesigned the rules of civil procedure to remove those unnecessary burdens. It is their job to do so. When justice and court rules collide, justice trumps. In certain cases, using one s own name can add heavy weights of retaliatory, privacy, or legal harm to one s side of the scale. When that happens, the hope of balancing the scale via the courts disappears, and disheartened people abandon their legitimate claims. These harms exist when the trial process requires the exposure of sensitive information. When sensitive information must be made public, the easiest and most narrowly tailored way to avoid this extra harm is to keep party-names confidential. Thus courts have waded into the pseudonym arena with what is now a hefty armload of common-law decisions. Not every court is sympathetic to those suffering the extra harm imposed by the Rules of Civil Procedure. Femedeer was the pseudonym for a convicted sex offender suing to stay off a state sex-offender registry. 25 The trial court ordered him to use his own name and the Tenth Circuit affirmed, adding, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials. 26 Pseudonym opponents commonly quote this rules-trump-justice point of view. 27 New pseudonym rules, if they are to remove this unnecessary harm, will need to make it clear that their purpose is to keep the court system open, as much as possible, as a tool for justice. 2. Constitutional Requirements at Times Call for Pseudonym Use Trial judges perform more uniformly when court rules clearly guide them. In the same way, rule designers can create rules more effectively when guided by constitutional requirements. Where these requirements appear to conflict, rule designers must chart a course to address them all. In the pseudonym arena, there are five guiding constitutional issues. On the pseudonym-opponents side is the 25. Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000). 26. Id. 27. See, e.g., Doe v. Ind. Black Expo, Inc., 932 F. Supp. 137, 139 (S.D. Ind. 1996).

2010] PSEUDONYM USE IN AMERICAN COURTS 697 qualified First Amendment right that the public should have access to court proceedings. 28 The public has a legitimate interest in knowing all the facts of a case, including the identities of the parties. 29 On the petitioner s side are the following four constitutional protections: (1) a set of privacy rights hammered out in a number of liberty cases; 30 (2) state and federal constitutional guarantees of access to courts to redress wrongs; 31 (3) the Fifth Amendment protection from self-incrimination; 32 and (4) courts responsibility to review legislative acts for constitutionality. 33 a. First Amendment Rights Grant Limited Access to Courts There is a First Amendment right, hammered out in criminal cases, to keep judicial proceedings open. 34 This right belongs to the public, who may intervene and petition courts for more information. The right is not absolute; the normal practice of disclosing the parties identities yields to a policy of protecting privacy in certain circumstances. 35 There are valid policy reasons for enforcing this First Amendment right: (1) Open courts protect against judicial abuse 36 and insures accountability. 37 They assure fair trials 38 and guard against corruption, bias or partiality on the part of the court. 39 Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification. 40 28. See, e.g., Press-Enter. Co. v. Superior Court, 464 U.S. 501, 508-10 (1984) (discussing purposes of open access to criminal trials). 29. Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992). 30. See, e.g., Riniker v. Wilson, 623 N.W.2d 220, 226-27 (Iowa Ct. App. 2000). 31. See discussion infra Part II.B.2.b. 32. See Steinman, supra note 10, at 58. 33. See discussion infra Part II.B.2.e. 34. SEDONA GUIDELINES, supra note 8, at 16. 35. S. Methodist Univ. Ass n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir. 1979) (quoting Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974)). 36. Steinman, supra note 10, at 13. 37. SEDONA GUIDELINES, supra note 8, at 17. 38. Steinman, supra note 10, at 13 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980)). 39. See id. at 14. 40. Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000), quoted in United States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008).

698 ARKANSAS LAW REVIEW [Vol. 63:691 (2) Open courts cause all trial participants to perform their duties more conscientiously 41 and inform the public on the workings of the court. 42 (3) Open courts promote public respect for and confidence in the judicial system. 43 (4) Open courts offer the public the therapeutic value of seeing criminals brought to justice 44 and unconstitutional laws removed from the books. b. Court-Defined Privacy Rights Can Conflict with the First Amendment The Supreme Court has recognized privacy as one of the liberty rights Americans enjoy. 45 The types of privacy recognized and protected in the First Amendment include issues about abortion, 46 the marital bedroom, 47 extramarital sexual conduct, 48 procreation and conception, 49 child rearing, 50 education and the acquiring of useful knowledge, 51 and any other personal privacy right that is either fundamental or implicit in the concept of ordered liberty. 52 This means that government actors, including courts, may not expose this information about identified parties without good cause when there exists a simple, nonbiasing solution to prevent it. Pseudonyms have become a solution. About the time the 41. Steinman, supra note 10, at 14 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979)). 42. SEDONA GUIDELINES, supra note 8, at 17. 43. Steinman, supra note 10, at 15. 44. See id. 45. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965); see also M.M. v. Zavaras, 139 F.3d 798, 800 (10th Cir. 1998) ( Of course privacy interests are recognized in particular circumstances to be in the public interest. ). In that case, the court found that M.M., an inmate who wanted an abortion, did not have a sufficiently high privacy interest. Id. at 802-03. 46. E.g., Roe v. Wade, 410 U.S. 113, 153 (1973). 47. Griswold, 381 U.S. at 485-86 (1965). 48. Eisenstadt v. Baird, 405 U.S. 438 (1972) (voiding a state law that made it a crime to give a contraceptive to an unmarried woman). 49. Carey v. Population Servs. Int l, 431 U.S. 678, 684-85 (1976). 50. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). 51. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). 52. Palko v. Connecticut, 302 U.S. 319, 325 (1937).

2010] PSEUDONYM USE IN AMERICAN COURTS 699 Supreme Court started recognizing privacy rights, the use of plaintiff pseudonyms took off. 53 The Arkansas Supreme Court has allowed pseudonym use to protect the privacy of plaintiffs. Those plaintiffs were: (1) a third grade girl allegedly raped; 54 (2) a pair whose criminal records had been expunged; 55 (3) a bus driver fired for having a positive drug screen; 56 and (4) a minor allegedly made pregnant by her minister. 57 But a sexual-touching lawsuit was not of utmost privacy and, therefore, did not merit pseudonym use. 58 Federal pseudonym cases protecting privacy rights have included these issues: religion, 59 mental health, 60 minors, 61 homosexuality, 62 abortion, 63 trade secrets, 64 and protection of the attorney-client privilege. 65 Cases involving information not sufficiently private to warrant pseudonym protection have included: the fear of making public some personal medical information, 66 high-school students claiming that a history teacher used sexually explicit material, 67 alcoholism, 68 sexual 53. See Carol M. Rice, Meet John Doe: It Is Time For Federal Civil Procedure To Recognize John Doe Parties, 57 U. PITT. L. REV. 883 (1996), for a thorough history of pseudonym use. 54. Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002). 55. Doe v. Ark. Dep t of Human Servs., 357 Ark. 413, 182 S.W.3d 107 (2004). 56. Doe v. Cent. Ark. Transit, 50 Ark. App. 132, 900 S.W.2d 582 (1995). 57. Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993). 58. Doe v. Union Pac. R.R. Co., 323 Ark. 237, 914 S.W.2d 312 (1996) (discussing Doe v. Frank, 951 F.2d 320 (11th Cir. 1992)). 59. Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981). 60. Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 549 (D.N.J. 2006) ( [M]any courts have recognized pseudonym use in mental health cases. ). 61. A court should consider, inter alia, the ages of the persons whose privacy interests are sought to be protected. James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). We emphasize the special status and vulnerability of the child-litigants.... Stegall, 653 F.2d at 186. The more tender the years, the more likely a court is to consider granting pseudonym protection. 62. E.g., Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y. 1988); Doe v. Chafee, 355 F. Supp. 112 (N.D. Cal. 1973). 63. Doe v. Deschamps, 64 F.R.D. 652 (D. Mont. 1974). 64. Leucadia Inc., v. Applied Extrusion Tech., Inc., 998 F.2d 157, 166 (3d Cir. 1993), cited in SEDONA GUIDELINES, supra note 8, at 17. 65. Doe v. A Corp., 709 F.2d 1043 (5th Cir. 1983). 66. Jane Noe v. Carlos, No. 2:08 cv 227, 2008 U.S. Dist. LEXIS 79441 (N.D. Ind. Sept. 25, 2008); Singer v. Rosenkrantz, 903 N.E.2d 191, 193-94 (Mass. 2009). 67. Doe v. Pleasant Valley Sch. Dist., No. 3:07cv854, 2007 U.S. Dist. LEXIS 55846 (M.D. Pa. Aug. 1, 2007). 68. Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992).

700 ARKANSAS LAW REVIEW [Vol. 63:691 discrimination by a landlord, 69 the common annoyance and criticism that all plaintiffs face, 70 and the risk of some embarrassment. 71 These are common-law privacy rights, and they are not limited by the fact that some statutes allow pseudonyms in narrow circumstances. 72 Not every judge deciding a pseudonym case sees constitutionally protected privacy as meriting protection. Usually, the constitutionality of the protection never comes up. Instead, courts look to see if the harm is, in their estimation, sufficient. Some use an utmost privacy standard. 73 While this may be appropriate for privacy issues not granted constitutional protection, courts should not run roughshod over constitutionally protected privacy rights. Courts should first consider whether the case involves one of those constitutionally protected privacy issues. If justice demands publishing the private information, then courts should consider one of the several non-prejudicial methods of allowing pseudonyms. New pseudonym rules should make it clear that risk of harm to constitutionally protected privacy is always significant harm. Immigrant status is not constitutionally protected as a privacy right. In Doe I v. Merten the court held that unlawful or problematic immigration status was not the type of personal information of the utmost intimacy that warrants abandoning the presumption of openness in judicial proceedings. 74 In Day v. Sebelius, a district court used similar reasoning. 75 Pseudonym opponents commonly quote these two cases as issue-settling precedent. They fail to mention that the judges in both Sebelius and Merten moved on from the discussion of privacy harm to measure the risk of retaliatory and legal harm that immigrants might suffer. 76 Since the issue of 69. Luckett v. Beaudet, 21 F. Supp. 2d 1029, 1029 (D. Minn. 1998). 70. James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). 71. Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000). 72. For example, the Arkansas Code allows pseudonyms for a minor seeking an abortion without parental permission. ARK. CODE ANN. 20-16-804(2)(B) (Repl. 2005). 73. E.g., Doe v. Union Pac. R.R. Co., 323 Ark. 237, 239, 914 S.W.2d 312, 313 (1996) (noting language used by the trial court). 74. 219 F.R.D. 387, 392 (E.D. Va. 2004); see also Doe v. Sebelius, 227 F.R.D. 668 (D. Kan. 2005). 75. 227 F.R.D. 668, 677 (D. Kan. 2005). 76. Day v. Sebelius, 227 F.R.D. 668, 676-77 (D. Kan. 2005); Doe I v. Merten, 219 F.R.D. 387, 393-94 (E.D. Va. 2004).

2010] PSEUDONYM USE IN AMERICAN COURTS 701 access to courts for undocumented aliens will be relevant for decades to come, new pseudonym rules should make it clear that permission for undocumented aliens to proceed pseudonymously hinges not on privacy harm but on other types of harm. c. Our Constitutions Guarantee Access to Courts The United States and Arkansas constitutions guarantee access to the courts to redress wrongs. The Arkansas Constitution provides, Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character.... 77 The First Amendment of the U. S. Constitution contains a similar guarantee: Congress shall make no law... abridging... the right of the people peaceably... to petition the Government for a redress of grievances. 78 However, sometimes state and federal rules of civil procedure needlessly block plaintiffs access to courts. Injured parties can be effectively blocked from access to the courts if the rules require them to use their own names when doing so threatens additional retaliatory, privacy, and legal harm. The in terrorem effect of scaring plaintiffs away from bringing lawsuits has long been considered an improper purpose. The Supreme Court has held that judges may keep trial information confidential where there is reason to believe that the court files would become a vehicle for improper purposes. 79 Examples of the risk of retaliation harm which have been found to justify pseudonym use include: a federal witness fearing reprisal, 80 a Jewish mother who feared physical and mental harassment from Christians, 81 legal Chinese-immigrant workers suing their employer, 82 and undocumented aliens contesting city ordinances in an openly hostile local environment. 83 Retaliation can be physical, mental, 84 or 77. ARK. CONST. art. 2, 13. 78. U.S. CONST. amend. I (emphasis added). 79. Steinman, supra note 10, at 26 (citing Nixon v. Warner Commc ns, Inc., 435 U.S. 589, 598 (1978)). 80. United States v. Doe, 655 F.2d 920, 922-23 (9th Cir. 1980). The court s discussion in note 1 on page 922 is particularly helpful. Id. 81. Doe v. Stegall, 653 F.2d 180, 181 (5th Cir. 1981). 82. Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1062-63 (9th Cir. 2000). 83. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 507-08 (M.D. Pa. 2007).

702 ARKANSAS LAW REVIEW [Vol. 63:691 economic harm from harassment, ridicule, or personal embarrassment. 85 On the other hand, one court held that a group of women law students suing law firms faced no greater threat of retaliation than the typical plaintiff alleging Title VII violations. 86 Harm to privacy, even if not recognized as constitutionally protected, can still effectively block access to the courts. Thus, courts may need to take steps to protect the identities of, for example, minors and crime victims in order to give life to the constitutional guarantee of access to courts. 87 New pseudonym rules should give life to constitutional guarantees of access to courts and should reject past pseudonym decisions that have blocked access. For example, the judge in Qualls v. Rumsfield denied pseudonym use to a soldier seeking to prevent the Army from unilaterally extending enlistment contracts. 88 The judge was comfortable knowing the soldier would drop his case if denied the right to proceed pseudonymously. 89 Requiring plaintiffs to use their own names, the court explained, encourage[s] suits by the most zealous, passionate and sincere litigants.... 90 A similar argument to this court s reasoning is that access to courts is synonymous with the ability to file a lawsuit. Unreasonable procedural hurdles or risk of extraordinary harm do not deny this access, the argument goes plaintiffs are free to take it or leave it. 91 However, Steinman writes that this either-or approach interferes with plaintiffs constitutional right to have claims adjudicated by the court, and should be rejected. 92 The Fourth Circuit held that a trial judge had abused his discretion when the judge wrote: 84. Does I thru XXIII, 214 F.3d at 1068; Qualls v. Rumsfeld, 228 F.R.D. 8, 10-11 (D.D.C. 2005). 85. United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980). 86. S. Methodist Univ. Ass n for Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979). 87. The type of legal harm that could impermissibly block a party from access to the courts is discussed in Part IV.A.2. 88. Qualls, 228 F.R.D. at 9, 13. 89. See id. at 9. 90. Id. at 13. 91. See Steinman, supra note 10, at 33. 92. Id. (citing Doe v. Bodwin, 326 N.W.2d 473, 474-76 (Mich. Ct. App. 1982)).

2010] PSEUDONYM USE IN AMERICAN COURTS 703 That [harm to the children] seems to me a risk you take when you undertake to try your case in what is going to be a public forum. I m not trying to discourage litigation, but to be able to proceed in secret, in effect, is not my notion of how a case ought to proceed. 93 Finally, writers of pseudonym rules may be tempted to play loose with the words every person in our constitutional guarantees of access to the courts. It is tempting to deny access to justice by defining every person to mean everyone but our currently least-favored group. Let us not do so. The thought that any government would choose to design justice for us and kangaroo courts for them is too much for a moral society to bear. New pseudonym rules should make it clear that one of their purposes is to keep courts open for everyone to redress injuries and wrongs. d. The Fifth Amendment Prevents Courts from Compelling Self-Incrimination The Fifth Amendment of the United States Constitution guarantees that No person shall be... compelled in any criminal case to be a witness against himself.... 94 As with the other constitutional protections at work in pseudonym decisions, 95 a thorough study of the Fifth Amendment is important to understand why it implicates pseudonym use. Such thoroughness, though, is outside the scope of this article. For now it is enough to show that the United States Supreme Court recognizes that the sole concern [of the protection] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts. 96 Thus, a judge who would deny a claim of the Fifth Amendment privilege must be perfectly clear, from a careful consideration of all the circumstances in the case, that 93. James v. Jacobson, 6 F.3d 240-42 & n.1 (4th Cir. 1993) (alterations in original). 94. Article II, section 8 of the Arkansas Constitution is essentially identical. 95. See, e.g., Steinman, supra note 10, at 19 ( Finally, secrecy hampers the structural function of the [F]irst [A]mendment. ). 96. Ullmann v. United States, 350 U.S. 422, 438-39 (1956) (internal quotation marks omitted) (quoting Boyd v. United States, 116 U.S. 616, 634 (1886)).