Brown University is not known for effervescent school spirit at sporting events, but the ol’ “which one’s Bruno?” cheer has stood the test of time. It usually starts with one really loud person yelling, “Let’s go Bruno!,” and then someone else yelling, “Which one’s Bruno?” The basic gist, which isn’t that clever but seems to work, is that Bruno is another word for Brown, since the Brown Bear is the school mascot. The other person yells “Which one’s Bruno?” to sow confusion among opposing fans, who are misled to believe that the Brown fans are cheering a player actually named Bruno. The only reason the cheer is effective is anonymity. There isn’t a player named Bruno, the cheer is for the entire team. The anonymous feature of the cheer feeds its power.
Anonymity can come up in many contexts on campus, including lawsuits. In a recent federal judicial decision, Doe v. Brown University, United States District Judge John McConnell ruled that a former university student can continue to prosecute his suit against Brown under a pseudonym instead of his real name. According to documents filed in the case, during disciplinary proceedings Brown initially found the anonymous plaintiff responsible for nonconsensual sexual conduct and suspended him. He sued Brown while still a student and received permission to proceed with the suit under a pseudonym. The case continued after the plaintiff graduated, and Brown filed a motion to require the anonymous plaintiff to proceed under his real name. The crux of Brown’s argument was that he had graduated and should be treated no differently from any other plaintiff who sues for discrimination and must litigate publicly. Brown argued that federal courts have a presumption of openness in judicial proceedings, and cited to an elaborate nine-factor test employed by federal courts in New Jersey and New Hampshire on when to permit anonymous lawsuits, including considerations such as the extent to which the litigant’s identity has been kept confidential, the magnitude of the public interest in keeping a person’s name secret, and the “universal level” of public interest in access to the litigant’s identity.
The anonymous plaintiff countered Brown’s motion by pointing out that it hadn’t opposed his request to proceed under a pseudonym when he filed the case, and there was no new evidence that justified changing the court’s initial determination. Substantively, the plaintiff argued that courts regularly allow plaintiffs to proceed anonymously when the litigant’s privacy interest is avoiding a social stigma on matters such as mental illness and sex. Since the plaintiff alleged mental illness based on Brown’s findings against him during the sexual assault investigation, he asserted that he had a significant private interest in avoiding social stigma. The plaintiff also stressed the damaging aspect of sexual misconduct allegations in the #MeToo era, arguing that connecting the misconduct allegations to his name would cause real harm and undermine his demand in the case to order Brown to expunge his school records to clear his name.
In a short decision, Judge McConnell saw no reason to revisit his earlier determination that the plaintiff should be allowed to proceed under a pseudonym. The decision emphasized that the plaintiff’s new status as a graduate did not change the calculus, and his former status as a student was not why the Court originally allowed him to proceed anonymously. Judge McConnell concluded that the “Plaintiff’s assertion of a social stigma from being identified as a perpetrator of sexual crimes that he claims he did not commit, remains no matter if he is a student.”
Judge McConnell’s decision sits at the intersection of competing legal forces. Like other tectonic forces, these countervailing trends have lots of mass, and when they bump into each other, there’s usually some friction.
One of these forces is the openness of courts enshrined in the First Amendment and other doctrines. Access to the courts is a core right. The public should be allowed to observe judicial proceedings and trials by going to court and watching the proceedings, and outside of child litigants, who are always allowed to proceed anonymously, this includes knowing who the litigants are. As the First Circuit has stressed in cases like In re Providence Journal Co., 293 F.3d 1 (1st Cir. 2002), “[c]ourts long have recognized that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system. This recognition has given rise to a presumption that the public has a common-law right of access to judicial documents,” and the public has a right to access most pretrial proceedings. The judicial antipathy to anonymity also plays out in substantive legal doctrines. If plaintiffs proceed anonymously, how does the public know if they really have skin in the game instead of litigating for improper ends? Rhode Island still recognizes causes of action for champerty and maintenance — “maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome.” Toste Farm Corp. v. Hadbury, Inc., 798 A.2d 901, 905 (R.I. 2002). The policy behind these types of claims is that it’s wrong to litigate under the banner of someone else. Allowing parties to use pseudonyms makes it virtually impossible for the public to know who’s doing what in a case.
The countervailing force is the general trend towards more privacy in judicial proceedings and in First Amendment law. These days, it isn’t heavy lifting to request a protective order to shield sensitive information from public view in judicial proceedings. Parties in cases usually agree to the format of the orders before presenting them to judges, leading most courts to grant them. Many orders allow the litigants to mark large swaths of information as confidential to keep them off the public docket. This is par for the course with the U.S. Supreme Court’s recent jurisprudence on the First Amendment, which encourages anonymous speech. Private individuals can easily mask campaign contributions by donating through corporations, and the Supreme Court has also held that individuals have a right to anonymous speech. Going public can subject an accuser or speaker to ridicule or threats. Here in the U.S. District Court for Rhode Island, the Court has recently started abbreviating the full names of litigants in social security disability cases that discuss sensitive mental and physical ailments (examples are here, here and here). With all these trends in mind, it’s not much of a leap to a judicial determination that a plaintiff accused of sexual assault should be protected from the open courtroom.
The problem is where to draw the line, which is pretty much the problem in every area of the law. The usual rule is that if a plaintiff is going to accuse a defendant of something, the accusation creates a right to access details that would otherwise be private. The starkest example of this is a lawsuit based on a plaintiff’s medical condition. Medical records are normally kept under lock and key, with severe penalties for disclosure. But once the plaintiff alleges a disability, those records become relevant to the case, and the defendant gets to see them, and so does the public if there’s a trial or an important pre-trial motion. Likewise, plaintiffs who are fired from their jobs and allege discrimination are almost always required to litigate in their own names, as are litigants who allege someone said something bad about them (defamation). It’s not uncommon for an employee to allege something like age discrimination, and for an employer to defend the case by stating that it took an adverse employment action because the employee engaged in sexual misconduct or harassment. These types of cases could come within the ambit of Judge McConnell’s decision.
There is an asymmetry in allowing a plaintiff to proceed under a pseudonym while suing a named defendant. It’s not really a rule of law, but the First Circuit is fond of saying that what’s good for the goose is good for the gander. E.g., United States v. Douglas, 907 F.3d 1, 7 n.9 (1st Cir. 2018); Martinez-Serrano v. Quality Health Servs., 568 F.3d 278, 284 n.2 (1st Cir. 2009); Johnson v. Watts Regulator Co., 63 F.3d 1129, 1134 (1st Cir. 1995). The standard federal jury instruction in Rhode Island tells jurors that “[t]his case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations of life. All parties are entitled to the same fair trial at your hands. All parties stand equal before the law, and are to be dealt with as equals in a court of justice.” (As an aside, there’s a great list of federal jury instructions on the District of Rhode Island’s website).
There are no easy answers to anonymous lawsuits and pseudonyms, and the core value of open court access will continue to bump into the core value of shielding sensitive and damaging information from public view. Once an allegation is in the public sphere, it’s hard to unring the bell in today’s internet age. The trend toward allowing greater privacy has at least one practical effect — it makes court proceedings a little more like private arbitrations. With the rise of private arbitration as an alternative dispute mechanism and aggressive judicial enforcement of arbitration agreements, perhaps increased privacy in the courtroom will encourage more litigants to try their cases before a judge and jury.