Last week, an attorney for a former Tulane University student—identified in court documents as “John Doe”—argued to a Fourth Circuit Court of Appeals panel in Richmond that he should be able to anonymously sue a North Carolina woman who accused him of sexual assault.
Tulane expelled the plaintiff a month before his scheduled graduation in 2022, but he does not appear to have faced criminal charges, according to court records.
The case raises an interesting question in the #metoo era: Should an accused sexual predator be able to sue “to have his good name restored” while keeping his name secret?
In a federal defamation lawsuit filed in December, the plaintiff alleged that a woman he’d briefly dated—she identified herself in court documents as Lily Chin—became “outraged” after seeing him with another woman and told their fellow students that he’d sexually assaulted her. Then, Chin and another student, identified as “Sue Roe,” filed Title IX complaints against him. Roe, who remains unidentified, said Doe touched her genitals without her consent while he masturbated. Doe claims Roe conspired with Chin because he had spurned her and she “hated” him.
Their complaints led to Doe’s expulsion. Citing “emotional and psychological damage” and “past and future economic losses,” among other things, Doe’s lawsuit seeks more than $75,000 in damages.
Doe asked the federal district court in Raleigh to let him use a pseudonym because the “highly sensitive and personal nature of the allegations” made him “justifiably concerned about the potential irreparable harm, not only to his reputation, but also to his livelihood.” Doe added that there was no “public interest in learning” his identity.
Judge James C. Dever III rejected Doe’s request in January. “Basic fairness counsels against allowing plaintiff to proceed pseudonymously in this case,” Dever wrote. “It would be fundamentally unfair for plaintiff to be able to ‘clear his name’ and wield a potential judgment against [Chin] to his advantage but hide under a shield of anonymity if unsuccessful.”
Doe appealed, arguing that Dever failed to consider the “physical and psychological harm” that would accompany his name becoming a public record.
In an amicus brief opposing Doe’s request for anonymity, UCLA School of Law professor Eugene Volokh—author of the journal article “The Law of Pseudonymous Litigation” and namesake of the Reason blog The Volokh Conspiracy—told the Fourth Circuit that Doe shouldn’t be allowed to sue Chin into potential bankruptcy from behind a pseudonym.
“Nowhere is this public right to monitor the judicial process—and the public confidence in the process that this right can bring—more important than when defendants are facing financial ruin for the content of their speech,” Volokh wrote.
During oral arguments last Tuesday, the appeals court panel appeared to agree. The judges voiced skepticism that someone alleging that he was defamed needed privacy protections. If anything, Judge James Wynn seemed to suggest, those protections should extend only to Sue Roe, who is not part of the lawsuit.
“I would think if [Doe] wins this thing, he’s gonna want to put his name out there,” Wynn said early in the hearing. “… I don’t get why he wants to be anonymous.”
“If he won the defamation suit, wouldn’t he be going out there telling his name and that these were false allegations against him, or would he always leave it at John Doe?” asked Judge Stephanie Thacker. “How could he clear his name if he doesn’t say who he is? It seems to me he wants to have it both ways—he wants to hedge his bets in case he loses.”
Doe’s attorney, Kara Gorycki, countered that naming Doe could out Sue Roe, and said Doe deserves privacy because his case was tied to confidential Title IX proceedings. (Doe is also suing Tulane over his expulsion.) Gorycki argued that Chin’s allegations were contained to the relatively small community of Tulane’s campus.
“To the extent that people are aware of his identity, which would not be the public at large, he can go back and say, ‘I won this judgment,’” Gorycki said.
Thacker pointed out that Doe’s legal filings provide numerous clues to his identity: He was a member of the business fraternity Alpha Kappa Psi and the social fraternity Zeta Beta Tau, as well as treasurer of Tulane’s Food Recovery Network and one of 34 seniors selected to join the Omicron Delta Kappa honor society.
“His peers probably could figure this out,” Thacker said.
“I’m not sure, Your Honor, that that would actually happen, that just using Google and typing in a few of the facts that are alleged in the complaint, that he could be identified by name,” Gorycki said.
It took The Assembly fewer than 10 minutes of Googling to find the name of a former Tulane student who appeared to fit the complaint’s description. Attorneys for the plaintiff and defendant did not respond to requests to confirm the plaintiff’s identity or to be interviewed for this article.
It’s not clear when the appeals court will rule.
Jeffrey Billman reports on politics and the law for The Assembly. He is the former editor-in-chief of INDY Week in Durham. Email him at jeffrey@theassemblync.com.