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)).
704 ARKANSAS LAW REVIEW [Vol. 63:691 the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate. 97 This constitutional provision applies only to a single type of pseudonym case, where the case is: (1) for declaratory judgment; (2) challenges the constitutionality of a statute, ordinance or rule; (3) and proof of standing requires the plaintiff to self-incriminate. 98 Federal courts have normally allowed pseudonym use in these cases. 99 To have standing in a declaratory-judgment case, the plaintiffs must show that the challenged statute impacts their rights and that they have a personal stake in the outcome. 100 This means they must claim that they are the intended targets of the law. This confessing to a violation of criminal laws places plaintiffs at the very threshold of self-incrimination. All that remains is revealing their names. Self-incrimination is a two-part process: the first part is confessing to a violation of, or an intent to violate, a law; the second part is identifying oneself. Announcing to the world I am a robber! is not an incriminating statement if no one knows the announcer s identity. So when plaintiffs must confess all the elements of a crime in order to have standing, the only missing pieces of information are their names. Courts should take seriously the government-ordered confession required when plaintiffs seeking judicial review of unconstitutional statutes must plead incriminating facts to prove standing. Requiring such parties then to use their own names completes the self-incrimination process. Eroding a party s Fifth Amendment protection is always significant harm. 101 Nor can courts claim to uphold Fifth Amendment protections by allowing plaintiffs to waive their constitutionally guaranteed access to the courts. There is no need for such constitutional 97. Hoffman v. United States, 341 U.S. 479, 488 (1951) (emphasis omitted) (quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1, 11-14 (1964). When government is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclosure, some members of the Court have argued for a relaxation of the Hoffman standard. See California v. Byers, 402 U.S. 424, 441-42 (1971) (Harlan, J., concurring). 98. See discussion infra Part IV.A.2, for details about these left-end cases. 99. See discussion infra Part IV.A.2.b, for details. 100. See Baker v. Carr, 369 U.S. 186, 204-08, 236-37 (1962). 101. See, e.g., Couch v. United States, 409 U.S. 322, 327 (1973) ( By its very nature, the privilege [against self-incrimination] is an intimate and personal one. ).
2010] PSEUDONYM USE IN AMERICAN COURTS 705 damage, especially when easy, nonprejudicial pseudonym solutions exist. New pseudonym rules should, in these cases, require judges to recognize and protect all constitutional rights, including the Fifth Amendment protection from selfincrimination. e. Current Rules Allow Rulemaking Bodies to Avoid the Judicial Review of Unconstitutional Laws Courts have a constitutional duty to review statutes, ordinances and other laws. The United States Constitution and its state counterparts divide their governments into three branches. Working together, they form a system of checks and balances to prevent bias in favor of any individual branch. 102 One of those checks is the judiciary s power and responsibility to review laws for constitutionality. 103 Without proper pseudonym rules, Congress, legislatures, and other lawmaking bodies will use the Rules of Civil Procedure, in their current form, to sidestep this check. 104 In declaratory-judgment cases challenging the constitutionality of a law where plaintiffs must plead facts to the verge of self-incrimination, 105 government defendants can always intimidate plaintiffs by threatening the legal harm of arrest, imprisonment, fine, confiscation, or deportation. Granting government defendants the power to intimidate plaintiffs with legal harm is an abdication of judicial-review responsibilities. This constitutional issue goes hand-in-glove with the Fifth Amendment protection from self-incrimination. Steinman believes that forced self-incrimination inhibits important statutory challenges. 106 Few plaintiffs will stay the course, especially if they realize that the court system itself designed this daunting disadvantage. Citizens will lose opportunities to have unconstitutional laws reviewed; respect for the courts will suffer. Courts should not be complicit, 102. See, e.g., Buckley v. Valeo, 424 U.S. 1, 120-22 (1986). 103. See id. 104. See Steinman, supra note 10, at 35. 105. E.g., La. Affiliate of Nat l Org. for the Reform of Marijuana Laws v. Guste, 380 F. Supp. 404 (E.D. La. 1974) (considering a challenge to the constitutionality of a law prohibiting the private possession and use of marijuana). 106. Steinman, supra note 10, at 62.
706 ARKANSAS LAW REVIEW [Vol. 63:691 consciously or otherwise, with this improper purpose. New pseudonym rules should make it impossible for rulemaking bodies to subvert judicial review by scaring plaintiffs away with threats of criminal sanctions. New pseudonym rules should properly reflect this constitutional environment. Court rules rather than trial judges should balance the First Amendment against constitutional (1) duties of judicial review; (2) protections against selfincrimination; (3) guarantees of privacy; and (4) access to courts. Let the new pseudonym rules, if faithfully followed, chart the course that best handles all these constitutional mandates. III. PROCEDURAL RULES FOR PSEUDONYM USE Federal procedural practices are not uniform. There are no United States Supreme Court decisions on pseudonym use. The D.C. Circuit and the Fourth Circuit both encourage ex parte hearings to seek permission from a judge before filing a complaint pseudonymously. 107 Other circuits permit motions to proceed pseudonymously either with the complaint, soon after the complaint, 108 or after a defendant s motion to dismiss. Professor Steinman recommends that the motion to proceed pseudonymously contain affidavits and a request for a protective order. 109 Professor Cheit calls for notice and a hearing. 110 Cheit also notes the difficulties posed by the current lack of any uniform standards for the pseudonyms themselves. 111 New pseudonym rules will work best if they clearly exclude Rules 10(a) and 17(a) from having any connection with 107. James v. Jacobson, 6 F.3d 233, 235 (4th Cir. 1993); Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005). 108. See Doe v. Stegall, 653 F.2d 180, 181-82 (5th Cir. 1981) (holding that the plaintiff could proceed under a fictitious name to challenge public-school Bible readings when a protective order was filed after her complaint). This is not so in the Tenth Circuit. In one case, although the plaintiffs received permission to use a pseudonym from a magistrate soon after filing the complaint pseudonymously, the Tenth Circuit dismissed the case for lack of appellate jurisdiction because the permission had not been granted prior to filing the complaint. W.N.J. v. Yocom, 257 F.3d 1171, 1173 (10th Cir. 2001). 109. Steinman, supra note 10, at 87. 110. THE CONNECTICUT PRACTICE BOOK 11-20A (2010) (requiring notice to be given for public comment), available at http://www.jud.ct.gov/publications/practicebook/ PB_2010.pdf (last visited Oct. 22, 2010). 111. See Cheit, supra note 7, at 278.
2010] PSEUDONYM USE IN AMERICAN COURTS 707 pseudonyms. As mentioned in the introduction, federal and state rules of civil procedure are silent about pseudonyms. If the new rules import rules 10(a) and 17(a), they import ambiguity. Some judges will likely interpret the new rules to deny pseudonyms. Others will give them little weight.. A few courts have expressed belief that rules 10(a) and 17(a) mean that judges should allow pseudonyms very, very rarely; denying pseudonyms summarily, then, is statistically the safest choice. 112 One critical problem is that violations of rule 10(a) and 17(a) may properly be handled through a rule 12(b)(6) motion to dismiss. However, no appellate case has ever endorsed such a practice for pseudonyms. Rule 12(b)(6) requires a decision based only on the facts pleaded in the complaint, 113 denying the defendant any input. All courts now require judges to consider many more factors than those the federal and state rules of civil procedure expressly require complaints to contain. 114 Here is an example of a procedure that could work. First, the plaintiff would file the complaint using a pseudonym. The 12(b)(6) motion to dismiss would not available, so the defendant answers. After the answer, either the plaintiff files a motion to proceed pseudonymously, or the defendant would file an objection to pseudonym use. If neither party filed the motion, the court sua sponte should bring up the matter to consider the First Amendment interests of the public. 115 Finally, there should be an information-gathering process, a hearing and a decision. Common results of this process may be that courts: (1) allow plaintiffs to use pseudonyms with special rulings to mitigate any harm to the defendant; (2) require plaintiffs to provide real names via one of several protective orders to keep the names confidential; 116 (3) deny use of pseudonyms and order 112. See, e.g., Roe v. New York, 49 F.R.D. 279, 281 (S.D.N.Y. 1970) (finding the reasons to use pseudonyms in that case to be insufficiently weighty). 113. See, e.g., Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 96, 685 S.W.2d 164, 165 (1985). 114. See Rice, supra note 53, at 915-16. 115. See Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997) ( The use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts. ). 116. Options the Sedona Conference lists, from most severe to most narrowly tailored, are as follows: sealing documents, lodging documents, redacting information, and
708 ARKANSAS LAW REVIEW [Vol. 63:691 appropriate protection of any remaining constitutional rights; or (4) allow opponents to renew their objections to pseudonyms at the damages stage of the trial where the plaintiffs names may be more relevant. 117 IV. SUBSTANTIVE RULES FOR PSEUDONYM USE There are so many competing and conflicting rules for pseudonym use that there is little value in listing all the variations. Once again, designers of pseudonym rules should not consider the armload of pseudonym cases as precedent but as a library of ideas. Some ideas work; some do not. Some support justice and the five constitutional foundations; some build upon lesser foundations. This section presents a workable set of pseudonym rules and the rationale for those rules. A. Pseudonym Decisions Lie on a Continuum of Possibilities Pseudonym decisions based on the facts of each case result in a continuum of cases from those that may never use pseudonyms to those that may always use pseudonyms. Imagine a long horizontal line. To the right the First Amendment dominates; a default rule says that parties must use their own names unless weightier constitutional issues arise. On the left, the Fifth Amendment protection against self-incrimination as well as the constitutionally guaranteed access to courts and the checks-and-balances duty of judicial review team up to grant pseudonyms always. In the middle is a weighing process. Legal practitioners would greatly benefit from nailing down both ends of the continuum. They must be able to see the constitutional tension stretching the continuum like a strip of rubber. If either nail comes loose, the continuum snaps to the opposite end, and decisions go awry. So this article looks first at each end of the continuum. permitting pseudonyms. See SEDONA GUIDELINES, supra note 8, at 18. In Arkansas, one should consult Administrative Order 19 for options, which include the first three listed by Sedona Conference. Administrative Order No. 19, Access to Court Records (2007). 117. See Avila-Blum v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190, 192 (S.D.N.Y. 2006) (allowing plaintiff s immigration status to be questioned).
2010] PSEUDONYM USE IN AMERICAN COURTS 709 1. Nailing Down the Right End of the Continuum The First Amendment The First Amendment allows the press and the public open access into the workings of the courts. 118 Therefore, unless competing constitutional issues arise, parties must use their own names in their pleadings. Pseudonym use should be patently clear. Parties wishing to proceed pseudonymously should identify their names as pseudonyms. As varying pseudonyms impede legal research in this area, standardizing use of the names John and Jane Doe is a good idea. 119 Multiple pseudonymous parties can use numbers, as in Does I thru XXIII v. Advanced Textile Corp. 120 Pseudonyms for civil plaintiffs are and should be rare. Older decisions regularly comment on this rarity. 121 However, new pseudonym rules should make no comment about frequency. There are too many pseudonym opinions where rarity meant a quick dismissal of all further constitutional considerations. A constitutionally designed and properly followed set of pseudonym rules will result in the rare use of pseudonyms without biasing judges against them. 2. Nailing Down the Left End of the Continuum The Bright Line Rule At the left end of the continuum is the type of case that may always use pseudonyms where: (1) the claim is for declaratory judgment; (2) it challenges the constitutionality of a statute, ordinance, or rule; and (3) proof of standing requires plaintiffs to 118. Steinman, supra note 10, at 8. 119. See Cheit, supra note 7, at 278. For example, without reading the case, no one would know that Femedeer in Femedeer v. Haun, 227 F.3d 1244 (10th Cir. 2000), is a pseudonym. But maybe the plaintiff gave us a hint! A feminine deer is a doe. 120. 214 F.3d 1058 (9th Cir. 2000). 121. See, e.g., Doe v. Hallock, 119 F.R.D. 640, 642 (S.D. Miss. 1987) (noting that in 1970 pseudonyms were rare in litigation); Doe v. Rostker, 89 F.R.D. 158, 161 (N.D. Cal. 1981) (limiting pseudonym use to a few limited categories of threatened harms).
710 ARKANSAS LAW REVIEW [Vol. 63:691 plead facts to the verge of self-incrimination the only facts lacking being the plaintiffs names. For simplicity, we will call these cases left-end cases. Strong constitutional foundations call for pseudonyms in these cases. 122 Those foundations include the protection from selfincrimination, the right to access the courts to redress wrongs, and the judiciary s responsibility to review laws for constitutionality. 123 These three constitutional foundations offer redundant justifications. Even one constitutional foundation in a left-end case is sufficient to justify permitting pseudonyms. Compromising any constitutional mandate in a court proceeding is never justified where simple nonbiasing remedies are available. This is especially so when, as in left-end cases, pseudonyms cause little or no harm to the opposing party. a. The Legal Harm from Compromised Fifth Amendment Protection Is Always Great Harm Lost Fifth Amendment protection is the most serious of all the constitutional harms implicit in pseudonym decisions. 124 Compared to the First Amendment, the protection against selfincrimination is weightier. 125 If both the First and Fifth Amendment rights were lost, the Fifth Amendment loss would always be the greater. Later, this article argues that in left-end cases, plaintiffs pseudonyms harm government defendants very little, if at all, and actually benefit the public. 126 But even if that were not case even if plaintiff s pseudonyms disadvantaged the government greatly the government should always lose the pseudonym battle. In criminal trials, even if the government s case will die without enforced self-incrimination, the government goes without the information. Even national security cannot justify forced self-incrimination. 127 In the same 122. See Steinman, supra note 10, at 61-62. 123. See discussion supra Part II.B.2. 124. See Part II.B.2.d, supra, for a discussion on why the Fifth Amendment applies in these cases. 125. However, apparently the Supreme Court has never decided a case where these two constitutional rights have butted heads. 126. See discussion infra Part IV.A.2.d. 127. Although a detailed review of the Fifth Amendment protections would benefit those designing new pseudonym rules, such a review is outside the scope of this article. In
2010] PSEUDONYM USE IN AMERICAN COURTS 711 way, no matter how badly the government claims it needs the plaintiffs names, in left-end cases it goes without. Not all judicial-review cases deserve to be at the left end of the continuum or even in the middle because not all implicate the Fifth Amendment. For example, in Donovan v. Priest, an Arkansas case, a voter had standing to sue for declaratory and injunctive relief to stop an unconstitutional citizens initiative. 128 The plaintiff needed to confess to no crime, so the defendant could not intimidate the plaintiff from her day in court, and therefore the Arkansas judiciary was in no danger of losing its power of judicial review in that case. No contrary constitutional issues move this case off the right end of the continuum. Result: no pseudonyms. There are no left-end cases where the legal harm is so slight as not to require the protection a pseudonym offers. What if the plaintiff is challenging an unconstitutional traffic law where the legal harm is $100? While it is tempting to rule that the harm in this case is too small, one cannot forget the harm to people and society as a whole whenever a branch of our government casually justifies enforced self-incrimination. This harm is perhaps even greater when the governmental branch that forces the self-incrimination is the judiciary the very branch with the job of preventing Fifth Amendment violations elsewhere. So, forcing plaintiffs to waive their Fifth Amendment protections in order to gain access to the courts is always a major harm. It should never happen. New pseudonym rules should place no stamp of approval on court-ordered self-incrimination. Ullmann v. United States, 350 U.S. 422 (1956), the United States Supreme Court stated that a witness could be compelled to give self-incriminating testimony before a grand jury investigating espionage only because the Immunities Act gave the witness full immunity from prosecution stemming from his testimony. Id. at 436-39. The privilege is not to be interpreted literally. Id. at 438. Rather, the sole concern [of the privilege] 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. Id. (quoting Boyd v. United States, 116 U.S. 616, 634 (1886)). 128. 326 Ark. 353, 359, 931 S.W.2d 119, 122 (1996), cert. denied, 519 U.S. 1149 (1997).
712 ARKANSAS LAW REVIEW [Vol. 63:691 b. In Left End Cases, Government Defendants Can Use Legal Harm to Intimidate Plaintiffs from Their Constitutionally Protected Access to the Courts For a long time, courts have recognized that plaintiffs need the protection of pseudonyms when challenging statutes that impose legal punishments. 129 Legal harm is similar to retaliation harm with one difference. With retaliation there is always a bad mind or wrong motive. With legal harm there are no bad guys only a rulemaking body composed of imperfect human beings who may have written an unconstitutional law. Ill-intended or not, in left-end cases the risk of legal harm automatically appears and operates as effectively as steel bars to block access to the courts. Risk of legal harm springs from constitutional requirements for standing. The United States Constitution permits laws to be challenged only by people impacted by those laws. 130 So plaintiffs who challenge laws potentially expose themselves to all the negative consequences attached to those laws. One would guess that such an obvious barrier to the proper function of judicial review would invite pseudonym use, and one would be right. From the very beginning, these types of plaintiffs regularly gained the right to proceed pseudonymously. One of the earliest pro-pseudonym factors was the presence of a government defendant. The Fifth Circuit noted in Southern Methodist University Ass n of Women Law Students v. Wynne & Jaffe that all of the plaintiffs previously allowed in other cases to proceed anonymously were challenging the constitutional, statutory or regulatory validity of government activity. 131 Steinman wrote, There is a substantial group of cases in which persons suspected, or who fear they might be accused, of criminal activity or unprofessional conduct sought to sue or be sued pseudonymously. Usually courts granted these requests. 132 In other words, courts have long used pseudonyms to protect plaintiffs challenging improper laws from the risk of legal harm. 129. See Steinman, supra note 10, at 43-60. 130. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 131. S. Methodist Ass n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979). 132. Steinman, supra note 10, at 58.
2010] PSEUDONYM USE IN AMERICAN COURTS 713 c. Two Flavors of Legal Harm Lead to Arbitrary Decisions Lately two flavors of legal harm have evolved. When challenged laws contain their own undesirable consequences (as many laws do), courts commonly define the legal harm imposed as suffering the injury litigated against. 133 In other cases, though, where the challenged statute incorporated by reference consequences housed elsewhere, courts define the legal harm placed on the plaintiff more generally, recognizing the plaintiffs bringing such suits are compelled to admit intention to engage in illegal conduct, thereby risking criminal prosecution 134 or be subject to punishment by the state. 135 This distinction has led to arbitrary results. Judges shop for their preferred flavor of legal harm. In 2008, for example, 1,305 bills addressing immigration were introduced and 205 laws were enacted in 41 states. 136 Many of those laws incorporate by reference parts of the federal immigration statutes, bringing into play federally defined legal harm such as, arrest, deportation, undisclosed confinement, and loss of property. In one case where undocumented immigrants challenged these laws, the court disregarded the legal harm from immigration statutes and rejected the use of pseudonyms, suggesting that the plaintiffs did not suffer the injury litigated against. 137 On the other hand, judges who wished to grant pseudonyms recognized and weighed the federal legal harm. A clear example of this phrase-shopping shows up in the Doe 1 v. Merten opinion. 138 There, the judge followed Southern Methodist University Ass n of Women Law Students, which cited as support for granting pseudonyms the fact that the plaintiffs had to admit that they either had violated state laws or 133. Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000) (quoting Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)). 134. Does I thru XXIII v. Advanced Textile Corp., 951 F.2d 320, 324 (11th Cir. 1992) (quoting Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981)). 135. Qualls v. Rumsfeld, 228 F.R.D. 8, 11 (D.D.C. 2005). 136. States Immigration Legislative Activity Still at Peak, NAT L CONFERENCE OF STATE LEGISLATURES (Dec. 18, 2008), http://ecom.ncsl.org/programs/press/2008/ pr121808stateimmigrationreport2008.htm. 137. Doe I v. Merten, 219 F.R.D. 387, 392-93 (E.D. Va. 2004). 138. 219 F.R.D. 387.
714 ARKANSAS LAW REVIEW [Vol. 63:691 government regulations or wished to engage in prohibited conduct. 139 But in the next sentence, the judge switched flavors stating [t]hat dictum refers to cases where plaintiffs are allowed to proceed anonymously in challenging the very laws or regulations they have violated or wish to violate. 140 New pseudonym rules should remove this ability to phraseshop. The wording should recognize all types of legal harm, including the major harm of court-ordered self-incrimination. With the constitutional guarantee of access to courts as one of our foundations, there is no logical basis for discounting harm that can deter plaintiffs from pursuing legitimate claims simply because the legal harm is separate from the challenged law. To do so invites lawmakers to write their laws to take advantage of this loophole. d. In Left-End Cases, Harm to Government Defendants Is Low One justification for having a bright-line rule is that in leftend cases the harm to the government defendant is at a minimum. The government will know if the issue has already been adjudicated. Res judicata harm is missing. Names of past plaintiffs will not be relevant unless they involved damages. Unlike tort cases against governments, in left-end cases standing harm is always low. Those with standing are always part of a large targeted group. Although the government may claim that it has the right to make sure the plaintiff is in the targeted group, the plaintiff s name is never critical in proving standing. The court can determine standing to its own satisfaction without divulging plaintiffs names to the defendant. As the judge wrote in Lozano v. City of Hazleton, [T]he individual identities and interest of the plaintiffs are not at issue in this case to the degree they were in Merten [where students sought admission to a university] and are not necessary to reach the issue of constitutionality raised by the lawsuit. 141 Some harms to defendants collateral strategy have been judged too slight to justify discovery of information that would 139. Id. at 392 (citing S. Methodist Ass n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)). 140. Id. at 392-93. 141. 496 F. Supp. 2d 477, 508 (M.D. Pa. 2007).
2010] PSEUDONYM USE IN AMERICAN COURTS 715 threaten plaintiffs from continuing their cases. These have included: impeachment of the plaintiff for falsifying employment papers, 142 challenge of the legality of the plaintiff s legal services, 143 checking tax returns to verify citizenship, 144 and fishing for fraud when not part of the merits of the case. 145 e. Current Attitudes About Undocumented Immigrants Have Led to Unjustifiable Decisions About Legal Harm In spite of the consistent recognition of legal harm in judicial-review cases, some courts feel it proper to deny pseudonyms to undocumented immigrants who seek to challenge unconstitutional laws. One rationale ignores legal and retaliatory harm by assuming that the Doe I v. Merten quote about privacy harm is the final word: After considering the various cases from the federal courts, we feel certain that status as an undocumented immigrant alone is not enough to permit a party to proceed anonymously. This is because unlawful or problematic immigration status is simply not the type of personal information of the utmost intimacy that warrants abandoning the presumption of openness in judicial proceedings. 146 This argument omits that the district court in Doe I v. Merten analyzes legal harm later in its opinion. 147 A second rationale considers immigration harm to be too little, but this runs afoul of a long string of federal appellate in terrorem labor law cases. In these cases the immigrants use their own names, but later bring Rule 26(c) motions to prevent discovery of immigration status. Federal courts consistently grant these requests 148 because [t]he potential danger of 142. Avila-Blum v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190, 191 (S.D.N.Y. 2006). 143. In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987). 144. Flores v. Albertsons, Inc., No. CV00100515AHM(SHX), 2002 WL 163623, at *6 (C.D. Cal. 2002). 145. See id. 146. Doe v. Weiss, No. 09-1071, 2010 WL 1253216, at *2 (quoting Doe v. Merten, 219 F.R.D. 387, 392 (E.D. Va. 2004)). 147. 219 F.R.D. at 392-93. 148. See Zeng Liu v. Donna Karan Int l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002) ( In fact courts addressing the issue of whether defendants should be allowed to
716 ARKANSAS LAW REVIEW [Vol. 63:691 deterring a plaintiff from having her day in court by inquiring into a non-relevant matter such as her immigration status is precisely the type of oppression Rule 26(c) was designed to prevent. 149 Confidentiality agreements between the parties could not resolve the fear; there would still remain the danger of intimidation and the danger of destroying the cause of action that could inhibit plaintiffs in pursuing their rights. 150 Even should the immigration information be relevant, the risk of injury to the plaintiffs if such information were disclosed outweighs the need for its disclosure. 151 So courts regularly and consistently have recognized that immigration-related legal harm is serious enough to merit a court remedy. Immigrant judicial-review cases are the Fifth Amendment flip side of these immigrant labor-law cases. In judicial-review cases, immigrants must first confess immigration violations and thereafter seek to keep their names confidential. In labor-law cases, immigrants must first give their own names and thereafter seek to keep immigration status confidential. In judicial-review cases, the name is only marginally relevant. 152 In labor-law cases, immigration status is marginally relevant. 153 But put the discover plaintiff-workers immigration status in cases seeking unpaid wages brought under the FLSA have found such information to be undiscoverable. ). 149. Topo v. Dhir, 210 F.R.D. 76, 79 (S.D.N.Y. 2002). Compelling discovery of immigration information would result in a miscarriage of justice. Flores, 2002 WL 1163623, at *4. 150. Zeng Liu, 207 F. Supp. 2d at 193. 151. Id. at 192-93; see also Flores, 2002 WL 1163623, at *6 (holding that immigration harm outweighed any harm the defendant claimed to be exposed to as a result of the pseudonym use). 152. So say some judges, anyway. See Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir. 2000); Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 513 (M.D. Pa. 2007). Pseudonym decisions are all over the map on the relevancy of the plaintiff s name and the seriousness of a plaintiff s right of access to the courts to redress wrongs. Steinman, supra note 10, at 20, 43-85. 153. Unlike their pseudonym counterparts, labor-law cases are consistent in declaring immigration status to be of marginal importance compared to a plaintiff s right to have her day in court. See generally In re Reyes, 814 F.2d 168 (5th Cir. 1987); Baca v. Brother s Fried Chicken, No. 09-3134-MLCF-SS, 2009 U.S. Dist. LEXIS 42306 (E.D. La. 2009); Avila-Blum v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190 (S.D.N.Y. 2006); Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295 (D.N.J. 2005); Flores v. Albertsons, Inc., No. CV0100515AHM (SHX), 2002 WL 1113023 (C.D. Cal. 2002); Topo v. Dhiv, 210 F.R.D. 76 (S.D.N.Y. 2002); Zeng Liu v. Donna Karan Int l, Inc., 207 F. Supp. 2d 191 (S.D.N.Y. 2002); but see Romero-Hernandez v. Alexander, No. 3:08CV93-M-A, 2009 WL 1809484 (N.D. Miss. June 24, 2009) (where the plaintiff had to reveal some immigration-related information to prove a right to back pay).
2010] PSEUDONYM USE IN AMERICAN COURTS 717 name and immigration status together and defendants can always terrorize plaintiffs away from bringing their legitimate claims. Disclosing both the crime and the name threatens arrest, jail, property loss, and the loss of plaintiffs basic rights to shelter, education and a livelihood through deportation. 154 The constitutional injury is even stronger in left-end cases where the demander, receiver, and user of the court-ordered selfincriminating information is a government. Immigration-related legal harm is serious harm, as is the harm from the forced waiver of Fifth Amendment protections. These harms scare away potential plaintiffs. In left-end cases, courts have allowed pseudonyms for immigrants seeking access to courts and protection from self-incrimination. 155 There is no legal justification for ignoring or discounting immigrationrelated legal harm. f. Summary: The Call for a Bright Line Rule Therefore, new pseudonym rules should communicate the constitutional foundation of the left end of the continuum, and should nail down the left end of the continuum with the type of case in which pseudonyms may always be used, namely (1) declaratory judgment cases (2) challenging the constitutionality of a statute, law, or ordinance (3) where proof of standing requires the plaintiffs to plead facts to the verge of selfincrimination the only facts lacking being the plaintiffs names. 3. The Middle: Justice, Privacy, and Access to Courts Between the default rule where parties may never use pseudonyms and the bright-line rule where plaintiffs may always use pseudonyms is the middle territory where judges must use their discretion. 154. 496 F. Supp. 2d at 507. 155. Plyler v. Doe, 457 U.S. 202, 205 (1982) (holding undocumented children could use pseudonyms when challenging a Texas law that denied them a public education); Does I thru XXIII, 214 F.3d at 1062-63 (where Chinese immigrant workers sued their employer); Lozano, 496 F. Supp. 2d at 508 (where undocumented immigrants challenged city laws targeting them); Doe v. Miller, 573 F. Supp. 461, 464 & n.1 (N.D. Ill. 1983) (allowing an undocumented mother to use a pseudonym when she had to confess her illegal status to get aid for her eligible children).
718 ARKANSAS LAW REVIEW [Vol. 63:691 Court rules should guide this discretion. Where pseudonym use hinges on the dispositions of individual judges, decisions will be arbitrary. The emerging practice seems to require judges to weigh a list of harms on both sides, although past decisions have offered little or no guidance as to how to do so. 156 New pseudonym rules should make it clear that cases do not move away from the default requirement to use one s own name unless a competing constitutional protection requires it. Any one of the following constitutional issues should be sufficient to move a case into the middle: (1) The case must expose the petitioners constitutionally protected privacy. 157 (2) The case must expose the petitioners privacy, albeit not constitutionally protected, and the petitioners must allege that proceeding under their own names would add such an extra risk of privacy harm of the scale that the court would cease to be a tool for justice, thereby effectively denying the petitioners access to the court to redress wrongs. 158 (3) The petitioners must allege that proceeding under their own names would add such an extra risk of retaliation harm to their side of the scale that the court would cease to be a tool for justice, thereby effectively denying the petitioners access to the court to redress wrongs. 159 (4) Any combination of the above three. New pseudonym rules will need to tackle the question of burden of proof. Formerly, when courts were reluctant to accept pseudonyms, they placed the burden on plaintiffs to overcome a presumption of disclosure mandated by procedural custom. 160 On the other hand, in the in terrorem labor-law cases, where the 156. See Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 550 (D.N.J. 2006); see also Rice, supra note 53, at 885. 157. E.g., Lozano, 496 F. Supp. 2d at 542. 158. E.g., Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y. 1988). 159. E.g., Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). 160. Stegall, 653 F.2d at 185; see also Qualls v. Rumsfeld, 228 F.R.D. 8, 13 ( [F]ederal courts operate openly by default and... a defendant facing a pseudonymous plaintiff need not come forward with reasons why this default procedure should be followed. ).
2010] PSEUDONYM USE IN AMERICAN COURTS 719 desired information would subject plaintiffs to the risk of injury, federal courts required those seeking discovery of the information to demonstrate that their need outweighed the injuries caused by the disclosure. 161 Now, once the movants claim a constitutional justification that moves a case into the middle of the continuum, both parties find themselves on equal footing, and neither side has a presumed right that the other must overcome. Once a competing constitutional requirement moves a case into the middle part of the continuum, judges weigh the risks of harm to all parties. The default rule ceases to be relevant. In other words, judges may not decide that the petitioners additional risk of harm is insufficient to overcome the default rule against pseudonyms. Instead, judges must compare the articulated risk of harm to the petitioner with the articulated risk of harm to the opponents and the public and craft a solution that best protects all constitutional rights. 162 a. Apples with Apples: Comparing Risk of Harm In order to properly weigh the interests of the two parties, judges must compare apples with apples. If new pseudonym rules of civil procedure allow a judge to place apples on the petitioner s side of the scale and oranges on the opponents side, the judge is free to be arbitrary. New pseudonym rules should clearly define what the middle section measures and require that measurement be used for both sides. The best apple is risk of harm. Risk is a well-understood quantitative concept, 163 illustrated by the following equation: risk of harm = probability of harm amount of harm Considering risk of harm allows judges to discount unlikely harm and more fully weigh harm that is likely. 164 For example, if the likelihood that the community will retaliate against the petitioner is only ten percent, a judge may reduce the feared 161. See Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 325 (D.N.J. 2008) (discussing Fair Labor Standards Act cases where employees sought to discover the plaintiffs immigration status). 162. See, e.g., James v. Jacobson, 6 F.3d 233, 241 (4th Cir. 1993). 163. McLaughlin v. Williams, 801 F. Supp. 633, 639 (S.D. Fla. 1992) (defining risk of harm with respect to medical procedures). 164. See, e.g., Doe v. Hartz, 52 F. Supp. 2d 1027, 1047 (N.D. Iowa 1999).
720 ARKANSAS LAW REVIEW [Vol. 63:691 retaliation harm by ninety percent. On the other hand, if a person is certain to lose employment, a judge can give that factor full weight. All parties should clearly list specific harm. The trial court in Day v. Sebelius properly ignored the plaintiffs vague, conclusory allegations. 165 This requirement goes for both parties. Those opposing pseudonyms should state specifically how pseudonym use will harm them and the public. Claims that pseudonyms will harm the opponents right to challenge standing and the public s right to open courts are too vague and conclusory to be useful. 166 Opponents should explain the harm clearly. Orange words ruin the weighing process. Since judges should compare apples with apples, and since risk of harm makes the best apple, orange words factors not identifying a risk of harm throw an arbitrary value into the equation. Arbitrary values always negate any prior objectivity. Two plus two equals four, but two plus two plus an arbitrary number always equals an arbitrary number. A review of past pseudonym decisions shows judges using the following orange words to deny pseudonym use: considering harm only if highly personal; 167 considering harm only if of the utmost intimacy; 168 calling the use of fictitious names disfavored; 169 stating pseudonym use is a rare dispensation in critical or unusual cases; 170 discussing a [c]ustomary and constitutionally-embedded presumption of openness; 171 and allowing pseudonyms only where there is a compelling justification. 172 165. 227 F.R.D. 668, 680 (D. Kan. 2005). 166. For example, when prisoner M.M. sued to be able to get an abortion, she wanted to use a pseudonym. M.M. v. Zavaras, 139 F.3d 798, 799-800, 803 (10th Cir. 1998). Without listing any specific harm to the defendant or the public, the judge wrote, I find that whatever interest in privacy is claimed on behalf of the plaintiff, the numerous countervailing public interests clearly and decisively outweigh it. Id. at 800 (quoting the district court). 167. Doe I v. Merten, 219 F.R.D. 387, 392 (E.D. Va. 2004). 168. Id. 169. Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004). 170. Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)) 171. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (quoting Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001)). 172. Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
2010] PSEUDONYM USE IN AMERICAN COURTS 721 New pseudonym rules should scrupulously screen orange words from the weighing process. b. Risk of Harm Makes the Best Apple Risk is a better term than fear, although fear actually seems to be the proper idea. After all, it is the petitioners fear that opponents use to scare them away from the courts. However, fear is difficult to measure. Judges may arbitrarily allow or ban pseudonyms by claiming to see or disbelieve professions of fear. Measuring fear would cause petitioners to present evidence of their personal feelings rather than the causes of those feelings. Risk is a satisfactory proxy for fear, for judges may legitimately decide that a person s fear is greater where the risk of harm is greater. Risk of harm is more logical than the risk-threshold policy that some courts have used. These judges, rather than measure a risk of harm, have rejected all harm completely if the probability fails to reach a certain threshold, such as substantial evidence that the harm will eventuate. A risk-threshold judge would accept a ninety percent probability of a small harm, but ignore a ten percent probability of devastating harm, although both may equally frighten parties. So the risk of harm makes a better measuring device than any risk-threshold policy. It is inappropriate to ignore specific types of harm. As pseudonym rules evolved, when one court would recognize one type of harm, a lower court would assume the precedent denied all other types of harm. However, most recent cases have recognized all types of harm: physical, mental, economic, and social. 173 There is little reason for rejecting risk of normal harm. The students in Southern Methodist University Ass n of Women Law Students faced no greater threat of retaliation than the typical plaintiff alleging Title VII violations. 174 The trial court dismissed that harm, and the Fifth Circuit affirmed. 175 173. E.g., James, 6 F.3d at 241 (emotional harm); Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) (physical harm); Doe v. Sebelius, 227 F.R.D. 668, 677 (D. Kan. 2005) (social harm); contra Qualls, 228 F.R.D. at 12 (rejecting risk of economic harm as a consideration when deciding pseudonym use). 174. S. Methodist Univ. Asso n of Women Law Students v. Wynne and Jaffe, 599 F.2d 707, 713 (5th Cir. 1979). 175. Id.
722 ARKANSAS LAW REVIEW [Vol. 63:691 However, if these harms routinely scare Title VII plaintiffs away from bringing their lawsuits, that seems little rationale for dismissing the harm. With a foundation of justice and the constitutional guarantee of access to courts, it makes the most sense to consider all types of harm. There is no legal or logical reason to ignore future harm or harm to loved ones. The Femedeer court rejected the plaintiff s pseudonym petition for lack of real, imminent personal danger. 176 Perhaps the court should have discounted the harm for future uncertainty rather than weigh it as no harm at all. It seems unjustifiable to count as zero the risk of harm to a petitioner s family members, as did the judge in Day v. Sebelius who wrote: The [petitioners ] families are non-parties and might be considered innocent. However, this is always the case when an undocumented alien files a lawsuit that does not also involve his or her family members. The court declines to adopt in effect what would be a general rule protecting illegal immigration status of non-party family members. 177 Similarly, the Ninth Circuit declared it an abuse of discretion for a judge to ignore the following: (1) risk of retaliation by parties not before the court; (2) risk of economic harm; (3) harm from petitioner s vulnerability to retaliation; and (4) whether the public interest was served by the petitioner s disclosure. 178 It is valid to consider the reliability of the evidence of fear. A plaintiff may use newspaper clippings to justify fear of community retaliation. 179 Although the rules of evidence may not necessarily apply in these circumstances, it is certainly appropriate for a judge to weigh an asserted harm as zero if the judge doubts the harm exists. For example, the court in Qualls ignored harm asserted through only hearsay evidence. 180 176. Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000). 177. 227 F.R.D. at 680. 178. Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000). 179. Doe v. Stegall, 653 F.2d 180, 182 n.6 (5th Cir. 1981) (noting evidence of public outrage over a lawsuit to stop school prayer). 180. Qualls v. Rumsfeld, 228 F.R.D. 8, 12 (D.D.C. 2005).
2010] PSEUDONYM USE IN AMERICAN COURTS 723 c. Standing Harm May Be Great or Small Inability to challenge standing is a harm defendants commonly claim. Challenging standing is an important tool on a defendant s tool belt, and any harm to that tool is great harm. Judges can protect defendants as well as save time by fully considering all standing issues along with the pseudonym issue. In tort cases, a defendant may need to know the plaintiff s identity in order to properly defend against the claim. In these cases, if risk of harm to the plaintiff is low, it would be proper to deny her a pseudonym. However, if risk of harm to the plaintiff is high, the court could protect both parties by informing the defendant of the plaintiff s identity, but protecting the plaintiff via protective orders, sealed or redacted documents, pseudonym use, or any combination thereof. In federal labor-law cases, where the protected information is relevant only for standing (and other collateral issues) and not for the merits of the cases, decisions have consistently found such harm to be small. 181 In the same way, where a petitioner s name is relevant only for collateral purposes and irrelevant to the merits of the case, risk of harm to the party s collateral issue is small harm and should not trump the constitutional issues that call for pseudonym use. In left-end cases discussed above, 182 the plaintiff s name is never relevant to the merits of the constitutional challenge. In such cases, any risk of harm to the defendant s ability to challenge standing (or to any other collateral issue), will never trump the three constitutional foundations on the left end of the continuum. Left-end cases may likely have no pseudonym hearing, so if there is any standing challenge later, the judge should allow the defendant such other remedies as are reasonably necessary to mitigate any harm the defendant and the public might suffer. d. Summary: In the Middle Section of the Continuum, Judges Weigh Harm to Constitutional Rights New pseudonym rules should contain the following concerning the weighing process: (1) cases should require a 181. See, e.g., Advanced Textile Corp., 214 F.3d at 1070. 182. See discussion supra Part IV.A.2.f.
724 ARKANSAS LAW REVIEW [Vol. 63:691 party to use its own name unless a competing constitutional right requires otherwise; (2) the rules should require judges to compare the risk of harm to each party when one party seeks to use a pseudonym; (3) risk of harm = probability of harm amount of harm; (4) pseudonym rules should avoid subjective orange words that would change guided objective discretion into arbitrary decisions; (5) judges should consider risk of all types of harm, however distant or improbable, including risk of harm to the petitioners community; and (6) judges could and perhaps should handle standing issues at the same time as handling pseudonym issues. B. The Weighing Process: Judges Weigh Specific Factors and Exercise Discretion The weighing process in the middle section of the continuum seems to call for the following steps. Step 1. Weigh the risk of harm to each party and the public. Step 2. Compare the risk of harm to the petitioner with the risk of harm to the opponent and the public. Step 3. Decide on pseudonym use. a. If the risk of harm for the petitioners is greater than the risk of harm to the opponents and the public, grant the use of pseudonyms. b. If the reverse, deny the use of pseudonyms. Step 4. As much as possible, design protections for the losing parties to mitigate the risk of harm to their constitutional rights. Some courts have adopted weighing factors in order to help determine when pseudonym use is appropriate. Some of these factors are listed below. Factor 1. Risk of harm from revealing legal names. The more severe the threat, the more reasonable the fear, the more likely the harm, and the more vulnerable the petitioners due to age or other attributes, the greater is the weight on the petitioners side. 183 183. See discussion supra Part II.B.2; see also Yacovelli v. Moeser, No. 1:02CV596, 2004 WL 1144183, at *6-7 (M.D.N.C. May 20, 2004).
2010] PSEUDONYM USE IN AMERICAN COURTS 725 Factor 2. Risk of harm to petitioners or the public from plaintiffs abandoning the case. The greater the harm to petitioners or the public should the petitioners abandon the case as when there are no named petitioners to continue the case the greater is the weight on the petitioners side. The type of harm in this category ranges from the loss of small tort awards to the loss of constitutional protections for millions of people. 184 Judges should consider the risk of harm to others targeted by improper laws. Constitutional harm, like the loss of constitutionally guaranteed access to courts, is always great harm. On the other hand, where the parties seeking to proceed pseudonymously are defendant-intervenors, the risk to the public interest from denying the pseudonym is slight, as the remaining parties in the lawsuit can continue to protect the intervenors interests. Here, count risk of harm to the public and innocent third parties 185 should the petitioners drop their case. The public may want an important issue litigated and may care little about the petitioners names. For example, the plaintiff in an early challenge to abortion laws 186 is more likely to interest the public (and thus gain the right to use a pseudonym) than a later plaintiff litigating a narrower individual claim. 187 Factor 3. The petitioners harm has been or can be mitigated. The more the petitioners have kept their names confidential, the more costly or broadly tailored alternative solutions are, the greater is the weight on the petitioners side. This issue discounts the risk of harm from the previous two factors. If the public and other parties already know the litigants own names, there is little extra harm from using those names on court documents. For example, where the identities of a sex offender and child-pornography convict were on unsealed public records and were already identified on a web site, and where a prisonerplaintiff had already used his own name on all court 184. See Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 507 (M.D. Pa. 2007). 185. James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (finding that risks from identifying the parties to that case caused even more critical harm to innocent nonparties). 186. E.g., Roe v. Wade, 410 U.S. 113 (1973). 187. E.g., M.M. v. Zavaras, 139 F.3d 798 (10th Cir. 1998).
726 ARKANSAS LAW REVIEW [Vol. 63:691 documents, 188 there was little advantage in granting pseudonymity. 189 Similarly, where undocumented immigrants have kept their identities strictly confidential, pseudonym use avoided significant legal harm, but where the undocumented immigrants have already admitted illegal status in applications with immigration authorities, judges saw little extra harm from requiring plaintiffs to use their own names. 190 Factor 4. Prejudice to the opponent. The less purely legal the case is, the more contested the facts are, the more relevant the name is to the merits of the case; 191 and the more important the reliability of the petitioners testimonies, the greater is the weight on the opponents side. Judges should measure any risk of unfairness to the opponents caused by pseudonym use. 192 In tort cases, it may be difficult to justify allowing reputational harm to the defendant for being sued, while allowing the plaintiff to avoid reputational harm through pseudonym use. 193 Defendants have claimed to be disadvantaged in their ability to make standing challenges, res judicata, jurisdiction challenges, and to litigate other collateral issues. 194 For example in one case, when undocumented students sought to enter a university in spite of a law denying them access, a grant of pseudonyms would have cost the university-defendant the ability to 188. Daly v. Fed. Bureau of Prisons, No. 09CV01722 BNB, 2009 U.S. Dist. LEXIS 66450, at *4 (D. Colo. July 21, 2009). 189. United States v. Stoterau, 524 F.3d 988, 1013 (9th Cir. 2008); Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000). 190. Compare Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 507 (M.D. Pa. 2007), and Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 n.11 (9th Cir. 2000), with Day v. Sebelius, 227 F.R.D. 668, 680 (D. Kan. 2005), and Doe I v. Merten, 219 F.R.D. 387, 393 (E.D. Va. 2004). The author believes this last conclusion to be mistaken. The risk of harm may actually be greater for undocumented immigrants with pending immigration applications. First, since the process can take many years, the petitioners may have entered the United States without inspection since filing the application. If so, it is likely that the application does not reveal any illegal status. Second, because immigration authorities have significant discretion, they may decide that an applicant s challenge of a United States law makes him unfit for a visa, invalidating a frustrating fifteen-year wait and thousands of dollars spent. Attorneys for plaintiffs who are already visa petitioners should make sure courts understand this high risk. 191. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008). 192. Yacovelli v. Moeser, No. 1:02CV596, 2004 WL 1144183, at *6 (M.D.N.C. May 20, 2004). 193. See S. Methodist Univ. Ass n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979). 194. See generally Steinman, supra note 10.
2010] PSEUDONYM USE IN AMERICAN COURTS 727 determine whether it had applied the law to bar the students. 195 However, where the identity was relevant only for the issue of standing, or where the defendant offered no evidence of how the pseudonym would prejudice him, the weight favored pseudonyms. 196 Factor 5. Harm to the public if it cannot discover the real names. The more renowned the plaintiff is, 197 the more the case is unique where the plaintiff is not just part of a larger group, the more the public interest lies in facts compared to the legal issues, 198 the more universally the public wants to know the plaintiff s identity, 199 the greater is the weight on the opponents side. There is legitimate room for disagreement about the harm the public might suffer should the petitioner use a pseudonym. Some judges, but not all, see any injury to the First Amendment right as extreme harm. 200 A few judges refer to this as the open courts doctrine and defend it strongly. 201 However, that extreme weight and perhaps the phrase open courts itself may be inappropriate, as this quote explains: 195. See Doe I v. Merten, 219 F.R.D. 387, 394 (E.D. Va. 2004). 196. See Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 512 (M.D. Pa. 2007) ( While standing is a clear constitutional requirement, it is also a preliminary question and one we find we can answer for the anonymous plaintiffs without discovery of their identities. ); Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 557 (D.N.J. 2006) ( [O]pposing counsel does not object to Plaintiff s proceeding under a pseudonym and offers no evidence that doing so would in any way prejudice [it]... since the parties are well aware of Plaintiff s identity. ). 197. See Hartford Life, 237 F.R.D. at 549 (including among other relevant factors whether, because of the subject matter of the 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 ) (quoting Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 468 (E.D. Pa. 1997)). 198. See id. (including, among factors that would support pseudonym use, 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. ) (quoting Provident Life, 176 F.R.D. at 468). 199. Id. at 550 (noting that a factor weighing against pseudonym use might be the universal level of public interest in access to the identities of litigants ) (quoting Provident Life, 176 F.R.D. at 468). 200. See Lozano, 496 F. Supp. 2d at 513 ( [T]he public s interest in the identities of the individual plaintiffs is not so strong as to justify the danger of disclosing the identity of plaintiffs with a legitimate fear for the consequences of that disclosure. ). 201. See Steinman, supra note 10, at 22 & n.98.
728 ARKANSAS LAW REVIEW [Vol. 63:691 The public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself. Party anonymity does not obstruct the public s view of the issues joined or the court s performance in resolving them. The assurance of fairness preserved by public presence at trial is not lost when one party s cause is pursued under a fictitious name. These crucial interests served by open trials are not inevitably compromised by allowing a party to proceed anonymously. 202 The Sedona Conference report, discussing entire documents but applicable to information on those documents, argues, If the documents in question have little or no relation to the merits of the case... the presumption of public access that arises from the mere fact that these have been filed with the court is quite weak. 203 Professor Steinman wrote: Very early in the litigation the public will have relatively little interest in the litigants names. Despite the fact that pleadings and other filings that identify the litigants are historically part of the public record, their accessibility, apart from any judicial decision in the case, does not promote the [F]irst [A]mendment values and policy grounds that form the foundation of public rights of access. 204 The public may have more interests in trial outcomes than in learning the petitioners names. Privacy interests in particular circumstances are in the public interest. 205 The public has a legitimate interest in justice for all, and as such probably disagrees with the court in Doe I v. Merten, which felt comfortable scaring away some plaintiffs because even if the five plaintiffs at issue here might be discouraged from bringing this suit if required to disclose their identities, at least one of 202. Does v. Stegall, 653 F.ed 180, 185 (5th Cir.). Past decisions use anonymously and pseudonymously interchangeably. The author recommends pseudonymously (using a fictitious name), because anonymous filings (those without a plaintiff name) clearly violate Rules 10(a) and 17(a). 203. SEDONA GUIDELINES, supra note 8, at 17. 204. Steinman, supra note 10, at 36 (citation omitted). 205. E.g., M.M. v. Zavaras, 139 F.3d 798, 800 (10th Cir. 1998).
2010] PSEUDONYM USE IN AMERICAN COURTS 729 these many eligible illegal aliens in Virginia would likely be willing to bring suit and reveal her identity. 206 So harm to the public is more complicated than an appeal to open courts might indicate. Accordingly, judges must compile a list of specific risks of harm to the public in order to measure this factor. Factor 6. Difficulty in mitigating the harm to the opponents and the public. The more difficult or costly to mitigate any disadvantage to the opponents case, the greater is the weight on the opponents side. This factor is the opponents version of factor 3. It functions to lower the harm identified in factors 4 and 5. Concurrently with his motion to proceed pseudonymously, a petitioner can, and perhaps should, proffer remedies for any harm to the opponents or the public. In one case, the Fourth Circuit found an abuse of discretion where the trial court did not consider two such proffers. 207 In James v. Jacobson, a case against a doctor who used his own sperm to fertilize a mother s eggs, the plaintiffs sought for their children s sakes to file pseudonymously but offered in compromise to give their real names and allow open court testimony. To limit the risk of sudden, unplanned revelation at [the] particular time in [the children s] lives while they [were] in particularly vulnerable preadolescence, 208 the court s order: forbade disclosure by defendants... of any information that directly or indirectly identified plaintiffs or their children to any person unless that person first executed a non-disclosure agreement....; required that all papers filed with the court or disseminated to any person who had not executed a non-disclosure agreement should use the... pseudonym in reference to plaintiffs, and required that any document that identified plaintiffs or the children either directly or indirectly be filed under seal, with redacted copies to be placed in the public files; required defendants to disclose to plaintiffs counsel all insurance company personnel to whom the plaintiffs true identities had been or would be disclosed, and required plaintiffs in turn to disclose to defendants counsel the names and 206. 219 F.R.D. 387, 396 (E.D. Va. 2003). 207. James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993). 208. Id. at 241 (emphasis omitted).
730 ARKANSAS LAW REVIEW [Vol. 63:691 addresses of all persons to whom plaintiffs had confided matters alleged in their pleadings; forbade defendants representatives during investigation to reveal, either directly or indirectly, the true identities of plaintiffs to any person unless the person first signed a non-disclosure agreement; required defendants to obtain leave from a designated magistrate judge, on prior notice to plaintiffs, to contact any person thought to have relevant information about the case... allowed defendants to notice and depose witnesses using... pseudonyms... when the witnesses were unacquainted with plaintiffs, and using actual names when the witnesses... had knowledge of the matters alleged by plaintiffs.... 209 There is some question about whether court orders maintaining the confidentiality of immigrant petitioners would work to protect them. The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 prevents any federal, state, or local governmental entity or official (e.g., a court or judge) from prohibiting any government entity or official (e.g., a government defendant and its attorney) from passing immigration information to immigration authorities. 210 Presumably, this statute eliminates some of the optional pseudonym compromises. 211 The application of this statute to a court order has never been decided. 212 Whether this statute is 209. Id. at 235-36. 210. Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 642(a), 110 Stat. 3009, 3009-707 (1996) (codified at 8 U.S.C. 1373(a) (2006)). 211. See Merten, 219 F.R.D. at 394-95. The judge in Doe I v. Merten believed this statute cast doubt on the propriety of protective orders for immigrant plaintiffs. Id. 212. While section 1373(a) of title 8 of the United States Code has never specifically been tested against a court order, there has been an occasion where a party has made the argument that a court is prohibited from issuing an order because of this statute. See Lozano v. City of Hazleton, No. 07-3504538, at *19 (3d Cir. Sept. 9, 2010). In Lozano v. City of Hazleton, the appellant argued that because the district court is an entity of the federal government, it was prohibited by [8 U.S.C. 1373(a)] from preventing [the appellant] from communicating with federal immigration authorities about the citizenship or immigration status of the Doe Plaintiffs. Id. However, the court noted that although it was not convinced that 1373(a) does, or could, limit the inherent powers of the federal courts in the way the appellant argued, it declined to reach that question because the appellant s argument failed on other grounds. Id.
2010] PSEUDONYM USE IN AMERICAN COURTS 731 constitutionally valid, 213 parties perhaps can achieve the same result through confidentiality agreements between the parties themselves. C. Some Factors Are Perhaps Not Useful in the Weighing Process Although most factors identified in past pseudonym decisions have been integrated into the six factors above, 214 other factors may not be useful. The proposed rules that follow eliminate some factors from the weighing process for the reasons that follow. 215 1. Government defendants Early pseudonym decisions showed an inclination to grant pseudonym use when the defendant was a government. 216 Although this sometimes shows up as a bias against government defendants, this should not be the case. Most of those decisions that have found this factor relevant were for declaratory judgments where the plaintiff had to plead facts to the edge of self-incrimination. 217 Where the government is a defendant in a tort case, there is little reason for a rule to bias the government. Furthermore, the weighing process measures apples with apples. Risk of harm is an apple, but bias against a government defendant is not. Accordingly, this factor appears only in the bright-line rule. 218 Otherwise, government defendants should be allowed to plead the risk of harm they could suffer like any other defendant. 2. Improper Petitioner Motive Professor Steinman lists, as one factor in the pseudonym analysis, the presence of an improper petitioner motive. 219 In 213. It seems doubtful that Congress, or any state legislative branch for that matter, has the authority to dictate how any judicial branch operates. 214. See discussion supra Part IV.A.3.d. 215. See discussion supra Part IV.A.3.d. 216. See supra note 104 and accompanying text. 217. See discussion supra Part II.B.2.d. 218. See discussion supra Part IV.A.2. 219. Steinman, supra note 10, at 41.
732 ARKANSAS LAW REVIEW [Vol. 63:691 Lozano v. City of Hazleton, it was not an improper purpose for undocumented immigrants to seek to avoid adverse immigration legal harm unrelated to the rights they sought to vindicate in the litigation. 220 This factor appears in the proposed rules as an absolute requirement, not as part of the weighing process. 3. Improper Opponent Motive The proposed rules incorporate improper opponent motive 221 in two places. First, it appears in the bright-line rule. 222 The rule automatically grants the right to use pseudonyms when governments improperly seek to terrorize petitioners away from their constitutional access to the courts, or demand that petitioners choose between court-ordered selfincrimination or a waiver of the constitutional right of access to the courts, or block a court s duty to review statutes, ordinances, and other laws. Second, the proposed rules recognize opponents improper motive of intimidating petitioners away from their constitutional right of access to the courts by moving cases out of the default rule at the right end of the continuum into the middle section. There, the weighing process makes sure that the threatened harm does not unjustly prevent petitioners from having their day in court. Furthermore, this factor is not an apple, and as such makes a poor addition to the weighing process. For any other improper motives opponents might have, it is hard to see why they should strengthen a petitioner s argument for pseudonym use. D. Abuse of Discretion Decisions Shed Light on the Pseudonym Process The few abuse-of-discretion cases involving pseudonyms are useful for illustrating how courts might make pseudonym decisions. [T]rial courts have no unreviewable license either to grant or deny [pseudonymity] on general principles; they may only grant or deny pseudonymity on the basis of an informed 220. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 513 (M.D. Pa. 2007). 221. Steinman, supra note 10, at 42. 222. See discussion supra Part IV.A.2.
2010] PSEUDONYM USE IN AMERICAN COURTS 733 discretion. 223 This section lists the three types of abuse of discretion and applies them to pseudonyms. First, an obvious manifestation of abuse of discretion is the failure or refusal, either express or implicit, actually to exercise discretion, deciding instead as if by general rule, or even arbitrarily, as if neither by rule nor discretion. 224 The judge s statement in James that he thought party anonymity was simply not permitted 225 and the judge s failure to inquire into the circumstances of the case to determine whether the dispensation was warranted were an abuse of discretion. 226 It was likewise abuse of discretion in Sealed Plaintiff v. Sealed Defendant for the trial judge to assume that, without an express provision in the state rape-shield law allowing pseudonyms, rules 10(a) and 17(a) of the Federal Rules of Civil Procedure controlled to forbid them. 227 To assure proper discretion, judges should state their reasons for whatever action they take. 228 The standard of review for this type of error is de novo. 229 The second type of abuse of discretion happens where a judge does weigh the evidence, but fails to adequately take into account judicially recognized factors. 230 In James, ignoring proffers of compromise was evidence the court was not open to persuasion, and so did not exercise discretion. 231 The Ninth Circuit in Does I thru XXIII found that the trial court erred by: Failing to consider evidence of threatened retaliation by parties not before the court; concluding that risks of extraordinary economic injury are insufficient as a matter of law to satisfy plaintiffs burden; failing to consider as a factor plaintiffs vulnerability to retaliation; failing to identify specific prejudice to defendants; and failing to 223. James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993) (emphasis added). 224. Id. at 239. A judge s personal unwillingness to allow pseudonyms was sufficient to prove abuse of discretion. Id. at 239-40. 225. Id. at 239. 226. Id. at 239, 241. 227. See 537 F.3d 185, 187, 190 & n.3 (2d Cir. 2008). 228. Cheit, supra note 7, at 270. 229. Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 548 (D.N.J. 2006). 230. James, 6 F.3d at 239. 231. Id. at 241-42.
734 ARKANSAS LAW REVIEW [Vol. 63:691 decide whether the public s interest was best served by requiring plaintiffs to reveal their identities. 232 Where judges consider the wrong factors or ignore the right ones, the standard of review is de novo. 233 The final type of abuse of discretion is where a judge s exercise of discretion is flawed by erroneous factual or legal premises. 234 The standard of review in this case is abuse of discretion. 235 New pseudonym rules should clearly communicate the manner of informed discretion judges should exercise and the required written explanation of the judge s decision. 236 E. Summary of the Middle Portion of the Continuum Pseudonym decisions lie on a continuum from the default rule on the right to the Bright Line Rule on the left with the weighing process in the middle. The First Amendment right to access to the courts is the foundation for the default rule that all parties must use their own names. The bright-line rule is founded on three strong constitutional mandates: the right of access to courts, the protection from self-incrimination, and the court s separation-of-powers responsibility to review constitutionally doubtful laws. In declaratory-judgment cases challenging the constitutionality of a law where proof of standing requires plaintiffs to plead facts to the verge of selfincrimination the only fact missing being their names plaintiffs should always be able to proceed pseudonymously. Cases move into the middle part of the continuum only when competing issues of constitutionally protected privacy or constitutionally guaranteed access to courts arise. In these cases, judges plot a course that best protects all constitutional interests. Judges compare articulated risks of harm to all parties, including the public, to decide whether to allow pseudonyms. 232. Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000). 233. See Hartford Life, 237 F.R.D. at 548 (explaining that a de novo standard of review is applied for interpretation and application of the applicable law ). 234. James, 6 F.3d at 239. 235. See Hartford Life, 237 F.R.D. at 548 (stating that an appellate court should apply the abuse of discretion standard to [the trial judge s] factual analysis and conclusions ). 236. See Cheit, supra note 7, at 270.
2010] PSEUDONYM USE IN AMERICAN COURTS 735 After making the decision, judges then make the necessary protective orders to mitigate any remaining harm. New court pseudonym rules should guide judges in their discretion. Abuse-of-discretion rules make sure that judges do exercise discretion, do follow the given guidelines, and do reach conclusions supported by the evidence. V. CONCLUSION This is a good time for any court to write rules for pseudonym use. The current federal and Arkansas Rules of Civil Procedure offer more confusion than clarification. Not only do legal practitioners need guidance, but the entire pseudonym process needs the solid ethical and legal foundation of justice and the constitution. That constitutional foundation consists of: (1) The First Amendment right of the public to open courts; (2) federal and state constitutional rights of access to the courts to right wrongs; (3) Supreme Court-defined privacy rights; federal and state constitutional protections from enforced self-incrimination; and (4) the courts duty to review laws for constitutionality. Decisions about pseudonym use fall somewhere on a continuum. At the right end is the default rule that, barring any conflicting constitutional claim, parties to lawsuits use their own names. At the left end of the continuum is the type of case that may always permit pseudonyms: (1) The case is for declaratory judgment; (2) challenging the constitutionality of a statute, ordinance or rule; and (3) proof of standing requires plaintiffs to plead facts to the verge of self-incrimination the only facts lacking being the plaintiffs names. Between these two ends is middle ground where judges weigh the risk of harm to all parties and chart a course to protect the competing constitutional interests. Past decisions have hammered out a series of weighted factors, although these decisions are by no means uniform. This article proposes six factors synthesizing all those introduced by other courts. A proposed set of rules for pseudonym use, offered for preliminary discussion, follows in Appendix I. The cases presented in this article are not binding precedent in Arkansas. They contain the thoughts of judges and justices
736 ARKANSAS LAW REVIEW [Vol. 63:691 who have had the courage to tackle this issue without guidance. Writers of new pseudonym rules and those attorneys who vote on those rules will read these cases with an eye for wisdom and sound logic. When Arkansas s Civil Practices Committee concludes its work, may the final result be the best pseudonym rules in the country.
2010] PSEUDONYM USE IN AMERICAN COURTS 737 APPENDIX I. SAMPLE COURT RULES FOR PSEUDONYM USE Proposed changes to Arkansas Rule of Civil Procedure 10. (a)(2). Parties desiring to use pseudonyms shall use the names John Doe or Jane Doe and shall proceed according to Rule 12(j). Proposed changes to Arkansas Rule of Civil Procedure 12. (j). Motion to Proceed Pseudonymously, or Motion to Object to Pseudonym Use. (1) Definitions. (i) Harm includes any type of injury, including physical, mental or economic harm from retaliation, harassment, ridicule, personal embarrassment, or legal consequences resulting from the use of or inability to use pseudonyms. (ii) Constitutional harm includes (a) limitations to the First Amendment right of access to court information, (b) exposure of constitutionally protected privacy, (c) obstacles to constitutionally guaranteed access to the courts, (d) erosion of the Fifth Amendment protection against self-incrimination, and (e) compromises of a court s responsibility to review laws for constitutionality. (iii) Risk of harm is the probability of harm multiplied by the amount of harm. (iv) Petitioners are the parties seeking to use pseudonyms. (v) Opponents are the parties opposing the use of pseudonyms. (2) Procedural Rules. (i) Petitioners who believe they qualify to use pseudonyms under part (3) of this rule shall file their court documents using pseudonyms according to Rule 10(a)(2). (ii) The use of a Rule 12(b)(6) Motion to Dismiss is not available to object to pseudonym use. (iii) The court shall consider the pseudonym issue after either (a) the petitioners Motion to Proceed Pseudonymously, or (b) the opponents Objection to the Use of Pseudonyms, or (c) the court s sua sponte initiative.
738 ARKANSAS LAW REVIEW [Vol. 63:691 (iv) The court shall allow information gathering, affidavits, testimony and all other evidence before making its decision according to these rules. (v) The court shall use its discretion in weighing the factors in part (4) below and in making its decision to allow or disallow pseudonyms. (vi) The court shall issue appropriate protective orders to mitigate any remaining harm to the constitutionally protected rights of all parties. (3) Qualifications for pseudonym use. (i) The default rule is that all parties must use their own names in court proceedings, unless the exceptions in (3)(ii) or (3)(iii) apply. (ii) Petitioners may proceed pseudonymously as a matter of law if: (A) the case is for declaratory judgment; (B) the case challenges the constitutionality of a statute, ordinance or rule; and (C) where proof of standing requires the petitioners to plead facts to the verge of self-incrimination the only facts remaining being the petitioners names. (iii) Courts shall use their discretion as guided in part (4) of this rule to allow or disallow pseudonyms in cases where petitioners, with no illegal or unjust ulterior motives: (A) Risk exposure of constitutionally protected privacy, or (B) Risk exposure of privacy not constitutionally protected, and allege that proceeding under their own names would add such a risk of privacy harm that the court would cease to be a tool for justice, thereby effectively denying the petitioners access to the courts to redress wrongs. (C) Allege that proceeding under their own names would add such a risk of retaliation harm that the court would cease to be a tool for justice, thereby effectively denying the petitioners access to the court to redress wrongs. (D) Any combination of the above three. (4) The weighing process. If the case qualifies under (3)(iii) of this rule, the court shall weigh specific risk of harm to all
2010] PSEUDONYM USE IN AMERICAN COURTS 739 parties. Risk of constitutional harm is always significant harm. If the risk of harm to petitioners outweighs the risk of harm to opponents and the public, then the court shall grant pseudonym use. Otherwise the court shall deny pseudonym use. The court shall weigh the following factors: (i) Harm from revealing names. The more severe the threat, the more reasonable the fear, and the more vulnerable the petitioners due to age or other attributes, the greater is weight on the petitioners side. (ii) Harm from plaintiff abandoning the case. The greater the harm to the petitioners or the public should the petitioners abandon the case, the absence of other named parties remaining in the case who can promote the petitioners interest, the greater is the weight on the petitioners side. (iii) Mitigating petitioner harm. The more the petitioners have kept their names confidential, the more costly or broadly tailored alternative solutions are, the greater is the weight on the petitioners side. (iv) Importance of identity to the opponents. The less purely legal the case, the more contested the facts, the more relevant the petitioners names are to the merits of the case, the more important the reliability of the petitioners testimonies, the greater is the weight on the opponents side. (v) Importance of identity to the public. The less the petitioners are merely representatives of a larger group, the more renowned the petitioners are, the more the public interest lies in facts as compared to the legal issues, the more universally the public wants to know the petitioners identities, the greater is the weight on the opponents side. (vi) Mitigating opponent harm. The more difficult or costly to mitigate any disadvantage to the opponents case, the greater the weight on the opponents side.