John Doe is Alive and Well - Arkansas Law Review - University of ...

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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



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)



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.



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).



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. 


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).



(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)). 



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).



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).



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). 



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).



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).



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. 


92. Id. (citing Doe v. Bodwin, 326 N.W.2d 473, 474-76 (Mich. Ct. App. 1982)).



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)).



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.”).



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. 


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). 




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). 


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.



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



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).



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 


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).



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



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).



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). 




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.



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).



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



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).



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).



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.”).



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).



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).



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.



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 


177. 227 F.R.D. at 680. 


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).



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.



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).



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).



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.



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.



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). 


204. Steinman, supra note 10, at 36 (citation omitted). 

205. E.g., M.M. v. Zavaras, 139 F.3d 798, 800 (10th Cir. 1998).



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). 


208. Id. at 241 (emphasis omitted).



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.



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. 




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). 


222. See discussion supra Part IV.A.2.



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.



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. 


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.



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



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.



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.



(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



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.

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