From yesterday's decision of the First Circuit in Doe v. MIT, by Judge Bruce Selya, joined by Judges Rogeriee Thompson and Gustavo Gelpi (note that I submitted an amicus brief in the case, in support of neither side):
[I.] The court reaffirms that there is a "strong presumption against the use of pseudonyms in civil litigation," but declines to follow many other courts in saying that this stems directly from the Federal Rules of Civil Procedure, or to the right of access to court records involved in sealing decisions. Rather, the court reasons,
[F]ederal courts enforce the presumption against party pseudonyms in civil litigation under their inherent power to "formulate procedural rules not specifically required by the Constitution or the Congress." This inherent power applies foursquare to the presumption against pseudonymity, which is a "polic[y] intrinsic to the litigation process." Courts have distilled such a presumption from a brew of custom and principle, including the values underlying the right of public access to judicial proceedings and documents under the common law and First Amendment….
Judicial hostility to a party's use of a pseudonym springs from our Nation's tradition of doing justice out in the open, neither "in a corner nor in any covert manner." In defending that tradition, we have explained that "[p]ublic access to judicial records and documents allows the citizenry to 'monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.'" "Identifying the parties to the proceeding is an important dimension of publicness." That is because—to a certain degree—letting a party hide behind a pseudonym dims the public's perception of the matter and frustrates its oversight of judicial performance.
Lacking knowledge of the parties' names, the public could learn virtually nothing about a case outside the facts and arguments in the record. The record, though, is not the alpha and omega of public concern. To take one example of important extra-record data, the real-world aftermath of a suit will sometimes bear upon the assessment of whether justice was done. Another example is the kind of institutional rot that is scrubbed from the record: judicial conflicts of interest, ex parte contacts, and the like. Anonymizing the parties lowers the odds that journalists, activists, or other interested members of the public would catch wind of such mischief. See Globe Newspaper Co. v. Pokaski (1st Cir. 1989) (acknowledging "the contribution to governance of investigative reporting" regarding such matters).
An even thornier issue involves protecting the appearance of fairness in judicial proceedings. "Litigating behind a curtain creates a shroud of mystery, giving the impression that something secret is going on." Secrecy breeds suspicion. Some may believe that a party's name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up. It is no answer to dismiss such beliefs as conspiracy theories because "justice must satisfy the appearance of justice." Distrust is toxic to the judiciary's authority, which "depends in large measure on the public's willingness to respect and follow its decisions." A judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts' work.
