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Do Defamers Deserve Pseudonymity? – LexBlog


The underlying case was a travesty on level after level, as the pseudonymous “survivor” ended up with the credibility of a dead slug, having done pretty much everything humanly possible to demonstrate that the University of Maryland student fabricated claims of sexual assault against two male students. The two men were found not responsible, as it would be impolite to make a finding that the accuser was a  lying sack of shit.

But it didn’t end there, because this was Title IX and “believe the woman” doesn’t suffer the possibility that women lie, even after it’s conclusively proven that the woman lied. When the two co-presidents of the school’s “Preventing Sexual Assault” organization, which worked with and was given special access to and influence at the university’s Office for Civil Rights and Sexual Misconduct, persisted after John Doe was found not responsible in alerting clubs, sports teams and others that he was a “rapist,” Doe brought a complaint to the University of Maryland’s Title IX office. They ignored it, then dismissed. Doe then sued the university and the two PSA co-presidents.

After the complaint was filed, and the names of the two co-presidents were (and still are) apparent in the caption, the two young women moved for pseudonymous treatment. The plaintiff, who used the John Doe ‘nym, didn’t object and the court granted the accused defamers pseudonymity. It was then spotted on Eugene Volokh’s radar.

Both Defendants take pride in their work on behalf of men* and women victimized by conduct ranging from sexual assault to catcalling. They stand accused in this case of defamation committed with malice against the Plaintiff, a very serious allegation indeed.

Both Defendants just graduated from the University of Maryland, College Park. Defendant Two is still job hunting in her field. Defendant Three secured a job in her chosen field of public relations. Defendant Three, who has a less common name than many, was shocked to discover that a Google search of her name yields as the fifth entry, pleadings in this case. For Defendant Two, she shares her name with others with many online entries. Defendant Two is concerned that could change as the case progresses.

For both, however, searches on Google, PACER, Judiciary Case Search, etc. are all standard practices for many employers. They are at the beginning of their professional careers. They are greatly concerned about the potential impact on future employers because of these serious allegations which they absolutely reject. Defendant Two, in point of fact, defends these allegations in that she was simply uninvolved—distinct from Defendant Three who defends these allegations as simply wrong or grossly conflated.

Eugene was surprised by the court’s decision.

And the court granted the motion, without a written opinion.

This is highly unusual.

It’s unclear whether he means that it’s highly unusual that the court granted the motion or did so without a written opinion, but I find neither unusual. Outside of Eugene’s focus on pseudonymous litigation, it’s generally pretty routine when there is no objection. Courts tend not to create their own disputes when the parties are in agreement.

But this leads into Eugene’s new area of scholarship, relating to the public’s and media’s right to know the identities of litigants. It’s one thing to argue, as I have, that the accused in a campus Title IX sex inquisition should be categorically entitled to remain pseudonymous in a subsequent federal court challenge to the wrongful outcome and denial of due process since the gravamen of the claim is that he was falsely convicted due to sex discrimination and unconstitutional procedures. If the false accusations were tied in perpetuity to his name, the the price of challenging a wrongful conviction would be the very harm sought to be remedied. The male accuser would be caught in an untenable Catch-22 where he lost no matter what happened.

But what about these two women, co-presidents of this campus organization with special access to the Title IX infrastructure, the purpose of which was to attack and destroy men believed to be campus predators, whether true or, as in the case, knowingly and completely false?

So what’s happening here? Perhaps courts are in practice applying a subtle “promising young man/woman” exception to the standard non-pseudonymity norm (which might help explain why a lot of Title IX plaintiffs who claim that they were wrongly found guilty of sexual assault have gotten pseudonymity, see pp. 1401-02 and Apps. 4A & 4B of my The Law of Pseudonymous Litigation article). But any such special exception strikes me as hard to justify. Surely it’s difficult to get a job as a young person when there are publicly accessible allegations against you, but it may be even more difficult to get such a job when one is (say) in one’s fifties and looking for a new job in one’s established career.

Is there any young person accused of intentionally and maliciously harming another, an innocent person, who wouldn’t prefer to keep her name private so, regardless of outcome, she won’t be burdened by her wrongdoings in the future? And, as Eugene notes, is it any easier for a 50-year-old than a “promising young man/woman” to survive an internet tainting, whether or not extremely well deserved?

It’s understandable that the plaintiff, John Doe, didn’t object to the defendants’ motion for pseudonymity, both because it’s dangerous to ask it for oneself without acquiescing in it for others, and it’s fighting a motion with the ordinary time and expense,** for no gain. What does plaintiff care if the defendants’ go ‘nym? He knows who they are. And, indeed, a lot of pseudonymous litigation comes about that way, not because there’s a sound reason for it but because it’s just not an issue for the people involved and, unlike the old days where no one would ever know about a case unless it was sufficiently high profile to make the funny pages, the internet allows for access to massive amounts of litigation information and keeps it available, no matter how damning or baseless, in perpetuity.

But do these two defendants, whose names I’ve avoided using here even though they’re clear in the caption of the complaint, deserve pseudonymity for what they are alleged to have done here? Is there any reason they shouldn’t suffer what they tried to do, and did, to John Doe by ruining his life? Is there any reason why, going forward, people should not know that if they hire, associate or engage with these two women, they should expect the worst of them?

*It’s typically claimed that, because Title IX prohibits sex discrimination regardless of the sex of the victim, victim’s rights organizations protect men as well as women. These claims rarely survive scrutiny.

**The cost of litigating is often overlooked by academics, as it’s not a cost they have to pay. Regular folk, on the other hand, are acutely aware of the fact that every battle comes with a price tag.


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