The United States Supreme Court has been shaping the concept of the public trial in recent years. In so doing, the Court has expanded public access to judicial proceedings and records. At the same time, parties have increasingly sought to litigate pseudonymously in an effort to keep their identities confidential. Litigants often wish to remain anonymous when the matters at issue are particularly private, stigmatizing, or so unpopular that the risk of retaliation is present. Additionally, public law litigators have attempted to expand the use of pseudonyms from the realm of sensitive private disputes to public interest controversies involving unpopular political or social issues. The tension between the Supreme Court's expansion of public assess to the judicial process and the increasing frequency of pseudonymous litigation raises questions about when litigants should be permitted to protect their identities from the public, their adversaries, and the court. Despite the prevalence of pseudonymous litigation, the courts have failed to develop a consistent framework for determining when parties may proceed under the shield of anonymity. The purpose of this Article is to provide courts with an analytical framework for resolving the issues inherent in pseudonymous litigation. The Article first demonstrates that the rationale underlying Supreme Court precedent affording public access to criminal proceedings and records is equally applicable in civil actions. After exploring the tension between public access rights and pseudonymous litigation, the Article recommends a detailed analytical approach for determining when pseudonymous litigation should be permitted in civil actions, and then illustrates this analysis by examining various categories of cases in which pseudonymity typically has been sought. The Article concludes that pseudonymous litigation should be permitted in certain cases to protect security or privacy interests, but that such protection should not be granted merely on demand. The proposed multi-factor balancing test for determining the propriety of pseudonymous litigation could assist the courts in reconciling first amendment values with litigants' competing interests in privacy and security.
Public Trial, Pseudonymous Parties: When Should Litigants be Permitted to Keep Their Identities Confidential,
37 Hastings L.J. 1
Available at: https://repository.uchastings.edu/hastings_law_journal/vol37/iss1/1