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Publius v. Boyer-Vine

United States District Court, E.D. California

May 9, 2017

DIANE F. BOYER-VINE, in her official capacity as Legislative Counsel of California, Defendant.



         I. INTRODUCTION[1]

         Plaintiffs Doe Publius (“Publius”) and Derek Hoskins bring this civil rights case under 42 U.S.C. § 1983 (“§1983”), challenging California Government Code § 6254.21(c) (“§ 6254.21(c)”)[2] under the First Amendment, the Commerce Clause, and 47 U.S.C. § 230 (“§ 230”), against Defendant Diane F. Boyer-Vine, in her official capacity as Legislative Counsel of California. Docs. 1 & 12.

         Plaintiffs subsequently moved for a preliminary injunction to prevent Defendant from enforcing § 6254.21(c) against them. See Doc. 19-1 at 26. The Court determined that Plaintiffs are likely to succeed on their claims that § 6254.21(c) violates the First Amendment as applied to Plaintiffs, and also violates the dormant Commerce Clause as applied to Hoskins. Doc. 24. Accordingly, the Court preliminarily restrained and enjoined Defendant from applying or enforcing § 6254.21(c) against Plaintiffs. Id.

         On March 29, 2017, Plaintiffs filed their request that the Court issue an order allowing Publius to proceed pseudonymously. Doc. 26. Defendant filed her opposition, Doc. 27, and Plaintiffs replied, Doc. 29. The Court took this matter under submission on the papers pursuant to Local Rule 230(g). Doc. 30. For the following reasons, the Court GRANTS Plaintiffs' request.


         Under Federal Rule of Civil Procedure 10(a), the title of every complaint must “include the names of all the parties, ” and a plaintiff's use of a fictitious name may “run[] afoul of the public's common law right of access to judicial proceedings.” Does I through XIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). “The normal presumption in litigation is that parties must use their real names.” Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010). Nevertheless, the Ninth Circuit permits parties to proceed anonymously “in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” Id. at 1068; see also United States v. Doe, 488 F.3d 1154, 1155 n.1 (9th Cir. 2007) (“We are cognizant ‘that the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity”) (emphasis added). The decision of whether or not to allow a party to remain anonymous is within this Court's discretion and will not be reversed unless the Court relies on an erroneous view of the law, makes an erroneous assessment of the evidence, or strikes an unreasonable balance of the relevant factors.” See Id. at 1042 (citing Advanced Textile, 214 F.3d at 1069).

         III. ANALYSIS

         A. Publius' Need for Anonymity

         Publius argues that he has a “compelling need for anonymity” for several reasons. Doc. 26 at 4-8. First, he cites the risk of “harassment, injury, ridicule or personal embarrassment, ” noting that he has already received hostile messages from third parties on his blog, and that his employer would likely terminate him if persons opposed to this lawsuit were to criticize publicly the employer for its association with Publius. Id. at 4-5 (citing Advanced Textile, 214 F.3d at 1068); Publius Decl. at ¶¶ 5-6. Second, by this suit, he is challenging the constitutionality of § 6254.21(c), which necessarily discloses that he might have violated or intends to violate § 6254.21(c) -“Publius would prefer not to violate the law, which is the reason for filing this challenge now, rather than waiting to be sued.” Doc. 26 at 5-6. Therefore, without the mask of anonymity, Publius would risk exposure to the penalties laid out in § 6254.21(c), which potentially include thousands of dollars in attorneys' fees. Id. Third, Publius asserts that the First Amendment protects his right to speak anonymously when criticizing the government, noting that he has taken multiple steps to preserve his anonymity while blogging, and that being forced to disclose his identity would eliminate his right to continue engaging in anonymous political speech. Id. at 7-8.

         Defendant disputes each of these reasons. First, she argues that the potential harassment and economic harm that could befall Publius do not rise to the level of severity required to justify anonymity. Doc. 27 at 5-8. Second, she argues that Publius does not reasonably fear criminal prosecution and that as a matter of practicality, even if Publius remained anonymous in this lawsuit, if a future plaintiff were to sue him for violating § 6254.21(c), the plaintiff would be able to learn Publius' true identity to enforce the monetary judgment pursuant to § 6254.21(c)(2). Id. at 8-9. Relatedly, Defendant argues that “the entirely speculative possibility that Publius might choose not to proceed with his or her constitutional challenge … provides no reason to grant anonymity, ” especially given that Plaintiff Hoskins would presumably remain in the case. Id. at 9-10. Third, Defendant argues that the right to anonymous free speech does not extend to the right to litigate anonymously, suggesting that Publius could continue to speak anonymously through a different pseudonym. Id. at 11-12.

         The Court agrees with Defendant on two points. First, Publius potentially being discouraged from bringing this lawsuit if denied permission to proceed pseudonymously does not weigh in favor of granting him anonymously. Jessica K. v. Eureka Schools Dist., No. C 13-05854 WHA, 2014 WL 689029, at *2 (N.D. Cal. Feb. 21, 2014) (“That plaintiffs ‘may be' unwilling to proceed with this matter is insufficient. ‘May be' is too wishy-washy and speculative.”.).

         Second, the reasonableness of Publius' fear of physical and economic harm is not a sufficient reason to grant him anonymity in light of “the surrounding context and other listeners' reactions to the threats.” Kamehameha, 597 F.3d at 1044. Defendant correctly points out that Publius has received “only a small number of even arguably threatening online comments, with no indication that anyone actually had the intention to carry them out, ” and Publius' declaration does not state that he fears physical injury. Doc. 27 at 7. In Kamehameha, the Ninth Circuit upheld the district court's decision to deny the plaintiffs' request to proceed anonymously, even though they were minor children who had been the subject of anonymous online threats. 597 F.3d at 1044-45. Noting that courts must “consider the surrounding context and other listeners' reactions to the threats, ” the Ninth Circuit affirmed the district court's recognition that “many times people say things anonymously on the internet that they would never say in another context and have no intention of carrying out, ” and observed that “plaintiffs had culled only a few comments out of hundreds of anonymous comments regarding this case.” 597 F.3d at 1044-45; see also Doe v., Inc., Case No. C11-1709 MJP, 2011 WL 13073281, at *3 (W.D. Wash. Dec. 23, 2011) (finding that although the plaintiff received some “lewd and harmful messages” regarding her lawsuit, “readers of these comments would likely not perceive them to be actual threats against [the plaintiff], and that the plaintiff's fears were objectively unreasonable.). Nor is the possibility of Publius' termination from his employment a persuasive factor weighing in favor of anonymity. See Advanced Textile, 214 F.3d at 1071 (suggesting that “threats of termination and blacklisting are … typical methods by which employers retaliate against employees who assert their legal rights” and alone do not justify anonymity); 4 Exotic Dancers v. Spearmint Rhino, No. CV 08-4038 ABC (SSx), 2009 WL 250054 at *2 (C.D. Cal. Jan. 29, 2009) (“[T]he Court does not doubt that [the plaintiffs]' fears of economic retaliation are objectively reasonable and that they are vulnerable to such retaliation … But that does not alter the conclusion that pseudonymity is not necessary given that the feared injury is not extraordinary.”); accord Southern Methodist University Ass'n of Woman Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979) (vulnerability to retaliation from current employers, prospective future employers and professional association was insufficient to warrant anonymity).

         The parties dispute whether Publius' case can be analogized with Establishment Clause cases. The Court agrees with Plaintiffs on the issue. In the cited Establishment Clause cases, courts permitted plaintiffs to proceed anonymously because by filing their suits, the plaintiffs “made revelations about their personal beliefs and practices that [we]re shown to have invited an opprobrium analogous to infamy associated with criminal behavior.” Stegall, 653 F.2d at 18; Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) (“This suit-challenging a government activity-forces Plaintiffs to reveal their beliefs about a particularly sensitive topic that could subject them to considerable harassment”); Doe v. Madison Sch. Dist. No. 231, 147 F.3d 832, 833 n.1 (1988) (“Doe filed this case using a pseudonym because she feared retaliation by the community”), vacated on other grounds, 177 F.3d 789 (9th Cir. 1999) (en banc). Defendant attempts to differentiate these cases on account of the fact that these cases were all brought on behalf of minor children. Doc. 27 at 10. However, the reasoning from these cases regarding the private and sensitive nature of religious beliefs supports justifying anonymity in this case. The Court agrees with Plaintiffs that anonymity in both the Establishment Clause cases and this case is “both part and parcel of the underlying constitutional right, ” in that the Stegall, Porter, and Madison plaintiffs sought to protect their right to privacy in their First Amendment religious beliefs, and Publius is seeking to protect his First Amendment right to anonymous political speech. Doc. 29 at 4. The Court agrees that “the First Amendment right to express minority political opinions must be just as protected as the First Amendment right to engage in minority religious practices.” Id. As a matter of common sense and knowledge, political opinions, like religious beliefs, especially if they are controversial and in the ...

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