from BL v FeathermanIt was decided by Magistrate Judge Jessica Allen (DNJ) last Wednesday:
This case arose out of a plaintiff’s legal challenge to portions of the Mountain Lakes School District’s (“MLSD”) public-school curriculum on the grounds that it discriminated against white students…. [A]According to the plaintiffs, the defendants unlawfully discriminated [B.L.’s child] JL, violated his constitutional rights and subjected him to a hostile educational environment. BL brought his own claim, alleging that the defendants’ response to his concerns violated his constitutional rights….
Plaintiffs would have …[] Let the alias proceed… In support of their motion, BL claims that he has been portrayed as a “villain” for challenging MLSD’s curriculum, and that he has received threats, causing him to fear for his and JL’s safety. ….
“[O]ne of the essential qualities of a Court of Justice [is] that its proceedings should be public,” an “important dimension” of which is that the person using the court identifies himself. The use of pseudonyms “violates the public’s common law right of access to judicial proceedings….” Federal Rule of Civil Procedure 10(a). These principles reflect, stating “[t]He shall name all the parties in the title of the complaint…”
“Although not expressly permitted under Federal Rule of Civil Procedure 10(a), courts in exceptional cases have permitted a party to proceed anonymously.” To that end, courts have found such exceptional circumstances in matters such as “abortion, birth control, transsexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality.” That a litigant may suffer “embarrassment or economic loss is not sufficient” to justify proceeding by pseudonym. “Instead, a plaintiff must show ‘both (1) fear of serious harm, and (2) that fear of serious harm is reasonable.’
The court concluded that the plaintiff’s case for pseudonymity was undermined by the fact that they identified themselves to some other people in their community:
[T]He redacted instances in which the complaint details, occurring over several months, where BL personally contacted individual defendants regarding MLSD’s curriculum. BL’s coordination with another parent identified in the Amended Complaint as “Objector 2” included engaging in dialogue with MLSD about the school curriculum. Because the Amended Complaint details events that identify BL as the parent, it appears that the identities of both BL and JL are already known to members of MLSD and Objector 2, which weighs against proceeding by pseudonym. More importantly, BL does not specify how many individuals, friends, associates or others know that he is one of the plaintiffs in this case. Failure to provide this specific information to the court weighs against BL’s claim of confidentiality.
BL does not even attempt to address JL’s efforts to maintain confidentiality under the first factor, and the Court has not been provided with any information from BL or JL detailing steps taken by JL to protect his identity from members of the public, friends. , and others. Thus, Plaintiffs have failed to meet their burden of showing that their identities have been withheld.
The court also noted that this is not a case where the presence of a minor litigant justifies pseudonymity, as it appears that JL, who is now in college, is no longer a minor. And the court concluded that there was insufficient evidence of a serious threat to BL or JL:
Court analysis Dr Doe v. Felician Univ (DNJ 2019) Educational. There, the plaintiff sought to proceed anonymously due to alleged stalking, cyberbullying, and online threats of violence and disclosure of the plaintiff’s identity. The plaintiff, a Muslim woman of Palestinian origin, filed a complaint against Felician University alleging religious discrimination. After he filed the lawsuit, details of the complaint were published on a news website and an online blog that allegedly contained “harsh, hateful and bigoted rhetoric against Muslims.”[,]”and which allegedly advocated violence. The plaintiff identified the blog post he referred to and attempted to reveal his identity. The court concluded that the “disapproval and frustration expressed by some members of the public” did not amount to a threat or create a risk of “retaliatory damages.” ” The court also noted that the online posts did not specify a credible risk of harm and that the threat to reveal the plaintiff’s identity “does not qualify for the defense of substantial threat.”
Similarly, in Kamehameha, The Ninth Circuit affirmed the district court’s denial of four minor students’ requests to proceed in pseudonymity. The plaintiffs, who challenged alleged race-based school admissions policies, were the subject of express online threats. However, the Ninth Circuit found these statements to be online frustrations with plaintiffs, but that “many times people say things anonymously on the Internet that they would never say in other contexts and have no intention of managing . . . [,]”And the statements did not provide a basis for a reasonable fear of bodily harm…
BL relies on the following facts to support its apprehension of potential damages:
- BL received “a lot of pushback” from inside and outside the Mountain Lakes School District.
- People approached BL “angry” to file this action;
- BL received third-party messages on LinkedIn from a person she did not know identifying her as a plaintiff in the lawsuit and making “scareful comments” about her professional life;
- A newspaper identified a person as a plaintiff and put this person’s spouse on the front page;
- Someone identified a person they claim is the plaintiff and his family on Twitter;
- A woman created an online post identifying JL and the college she attends and encouraging people to contact the school to pressure the school to withdraw its offer of acceptance;
- BL is aware that people have posted a residential address of a person suspected to be the plaintiff online and possibly encouraged vandalism….
The use of pseudonyms is an extraordinary measure reserved for unique cases. Harm Indeed, BL refers only to some vague possibility of physical harm….
The court also rejected BL’s position that the controversy created by the case, JL’s need to attend college without threat, and the potential for “economic ruin” supported her request to proceed anonymously. I will have [the binding Third Circuit precedent] Clarifies that fear of negative public reaction or economic loss is insufficient to warrant proceeding anonymously. see more Doe v. Princeton (DNJ 2019) (noting that the alleged harm in the form of potential “job loss, stigma, and ridicule” is insufficient to support the use of a pseudonym)….
BL [also] Claims that revealing his identity would instill fear in potential witnesses, who would reasonably fear for their safety if publicly identified after opposing school policy. BL has not submitted any factual support for its claim… [And] Any party who is a minor shall be permitted to proceed using his or her initials in accordance with Rule 5.2, and therefore, there is no risk of being publicly identified. Accordingly, because BL has not established that other litigants would be precluded from litigating similar claims, this third reason does not support proceeding by pseudonym….
The court also noted that,
The plaintiffs challenge MLSD’s public-school curriculum, and BL brought a class action to protect the interests of the school district’s minor students. To that end, it is plausible that parents of students in the MLSD would want — and likely be entitled to know — the name and identity of the class representative proposed to challenge the curriculum on behalf of their children. For these reasons, this factor weighs against the use of pseudonyms.
The result appears to be consistent in most cases that have considered such questions and that do not involve threats of violence; But the law in this area is unstable, as I lay in mine The Law of Pseudonym Cases.