Public Trial, Pseudonymous Parties: When Should Litigants Be Permitted to Keep Their Identities Confidential
89 Pages Posted: 19 Sep 2011
Date Written: 1985
In recent years, the United States Supreme Court has been shaping the concept of the public criminal trial. The Court also has expanded rights of access to judicial records and proceedings enjoyed by the public and the press. At the same time, a growing number of federal litigants have sought to sue, or occasionally to be sued, pseudonymously in order to keep their true identities confidential from the public and, in some instances, from their adversaries and the presiding judge.
The desire to retain anonymity is attributable to a combination of factors. Parties most often seek to sue under fictitious names when the matters in suit are particularly private, stigmatizing, or so unpopular that plaintiffs fear retaliation. Yet before parties can use pseudonyms to shield their rights to privacy, those rights have to be legally recognized. Additionally, public law litigators, relying on judicial recognition of privacy interests in unpopular political and social associations, have attempted to expand the use of pseudonyms from sensitive private disputes to public interest controversies. Accordingly, the use of pseudonyms stems in part from the recent use of the courts by political and social activists who seek judicial intervention in public interest matters.
The apparent tension between expansion of public access to the judicial process and the increasing frequency of pseudonymous litigation raises a number of questions. First, is this apparent tension real, in light of the existing and evolving contours of public trial and public rights of access to judicial proceedings and records? Second, under what circumstances should litigants be permitted to keep their identities from the public? Third, what different considerations should influence a litigant's ability to shield his identity from his adversary or the court? Finally, what procedures should govern these decisions?
Despite the large number of cases involving fictitiously named parties, the courts have not yet refined an analysis for determining when litigants may sue or be sued pseudonymously. Nor have courts carefully explored the question of secrecy with respect to an opponent or the court. Additionally, the current ad hoc procedures for handling pseudonymity are unsatisfactory. The purpose of this Article is to provide courts with an analytical framework for resolving these issues. The Article also attempts to sensitize the bar and the judiciary to the first amendment issues raised by requests for pseudonymous litigation.
First, the Article analyzes the Supreme Court precedent involving public rights of access to criminal proceedings and judicial records, and demonstrates that courts should recognize an equivalent right of access to civil proceedings and records. It then explains the tension between pseudonymous litigation and public access rights. Next, the Article proposes a detailed analytical approach for courts to use in determining when pseudonymity should be permitted in civil actions. The Article then illustrates this analysis by examining various categories of cases in which pseudonymity typically has been sought, and evaluates the courts' approaches to those cases. Finally, the Article suggests procedures that should apply to requests for pseudonymity. It concludes that litigants sometimes should be permitted to sue, or to be sued, pseudonymously in order to protect security or privacy interests, but that pseudonymous litigation should not be available on demand.
Keywords: Names; Parties to action; Freedom of the press; Court records; pseudonyms
JEL Classification: K14
Suggested Citation: Suggested Citation