“Canceling” First Amendment Freedoms: Proceeding by Pseudonym in the Digital Age

*¹

Introduction

The First Amendment guarantees certain freedoms that are imperative for the existence of a successful democracy.² Although not explicitly stated, the Constitution protects certain fundamental freedoms, including the right to privacy and the right to public access.³ Technological advancements have had a substantial impact on both of these rights.⁴ Some results, such as virtual court hearings and remote access to court documents, have led to increased civil participation and decreased administrative delays. ⁵ Additionally, online media has increased the public’s access to widespread information.⁶

However, these same advancements have perpetuated a conflict between the right to privacy, the press, and public access. ⁷ The right to proceed under pseudonym, a right stemming from the freedom of privacy, significantly clashes with the public’s right to access court hearings. ⁸ Maintaining privacy in the digital era is a growing concern for many Americans.⁹ The emergence of “cancel culture,”¹⁰ a modern version of public shaming arising when a person acts or says something offensive, has left many people believing that a new threat to constitutionally guaranteed freedoms has surfaced, renewing support for the importance of preserving privacy and anonymity.¹¹ Yet, allowing the public to observe the judicial process strengthens their trust and confidence in the legal system, thereby promoting the right to public access and in turn, disfavoring anonymity.¹² Although granting pseudonymity differs in each case, it tends to have at least one consistent result: a First Amendment freedom gets canceled.¹³

Doe v. Massachusetts Institute of Technology, a case of first impression for the First Circuit, attempted to mitigate this conflict by defining a plaintiff’s eligibility to proceed by pseudonym under a “totality of circumstances” test.¹⁴ This Case Comment will demonstrate that the new standard sets forth only an intermediate solution because the Court fails to recognize the influence of social media and digital developments on First Amendment rights, thus presenting a threat to the test’s viability. The purpose of this Comment is to critique the first three paradigms of the test; the fourth paradigm aligns with public policy and the theme of the forthcoming argument. Part I will analyze the First Amendment freedoms, past and current approaches to proceed by pseudonym, and judicial adaptations deriving from technological evolution. Part II reviews the facts, procedural history, and Court’s opinion in Doe v. Massachusetts Institute of Technology. Part III argues that, while the Court provides a clear standard, it fails to recognize the integral relationship between social media and First Amendment rights, as well as the potential consequences on future judicial proceedings. Part IV will argue that neglecting to consider the potency of internet influence generates uncertainties around the totality of the circumstances test and risks harmful implications to parties in civil litigation. Part V will provide alterations to the standard as if it considered the First Amendment rights equally and collectively with the internet.

I. Background

A. First Amendment Rights: The Penumbra

The First Amendment expressly protects the freedom of religion, speech, press, and assembly.¹⁵ In addition, other unenumerated rights are equally protected under the Constitution.¹⁶ These unenumerated rights are categorized within the penumbra of the First Amendment and exist so that the enumerated rights are “fully meaningful” and “help give them life and substance.”¹⁷ Their presence is essential to the “enjoyment of rights explicitly defined.”¹⁸ The purpose of broadly interpreting First Amendment rights is to ensure that liberty and freedom flow freely.¹⁹

The right of public access to courts emerges from the freedom of speech and the press.²⁰ In addition to the Constitution, this right is supported by common law and public policy.²¹ In Richmond Newspapers v. Virginia, the Supreme Court established that the public’s right to attend trials was an implicit right guaranteed by the First Amendment.²² The decision was reached on the premise that freedom of speech and press would be meaningless if people were unable to access the courts.²³ This reasoning is exemplary of how unenumerated rights foster the fluency of explicit rights and, furthermore, the importance of protecting both categories of rights.²⁴

Similarly, the right to privacy flows from the freedom of association.²⁵ The Supreme Court has consistently upheld the right to personal privacy as expressed through the penumbra of rights.²⁶ Griswold v. Connecticut, the pioneering case that led to several significant decisions in support of personal privacy, held that “[v]arious guarantees create zones of privacy.”²⁷ Over a decade later, the Supreme Court identified two interests that fall within the zone:²⁸ one aims to protect individuals from disclosing personal matters to the public, and the other facilitates the principle of independence when making those personal decisions.²⁹ However, the recent decision in Dobbs v. Jackson Women’s Health Org., which held that abortion does not fall within a zone of privacy, indicates that certain personal privacies may not be an implicit right.³⁰ Despite the Court stating that their decision should not be “understood to cast doubt on precedents that do not concern abortion,” the opinion creates uncertainties around the assurances of the right to privacy.³¹ Although the discussion surrounding this right is often referenced, it has been “infrequently examined,” and its outer limits remain undefined.³²

B. Proceeding by Pseudonym

While the right to public access and proceeding by pseudonym are in tension with one another, no courts have held that one right precludes the other.³³ The Federal Rules of Civil Procedure outline specific requirements for naming the parties in a lawsuit, as well as identifying the real party in interest.³⁴ Rule 17(a) states that “[a]n action must be prosecuted in the name of the real party in interest,” but it does not prevent the parties from amending their complaint to continue with or without a pseudonym.³⁵ Rule 10(a) notes that “[t]he title of the complaint must name all the parties.”³⁶ Although there are no provisions surrounding the use of pseudonyms in the Federal Rules,³⁷ Rule 5.2(a) permits minors to use initials in court filings instead of their real names, suggesting a narrow exemption to Rule 10(a).³⁸ Instances like these have permitted pseudonymity only in “exceptional circumstances,” requiring a court to weigh the litigant’s right to privacy against the “presumption of openness in judicial proceedings.”³⁹ However, the absence of a bright line rule leaves courts with the task of attempting to strike this balance.⁴⁰

1. The Public’s Interest: Right to Access Judicial Hearings

There is a strong presumption against pseudonymity in civil litigation.⁴¹ It has long been discouraged so that the public maintains its right to access the courts, thus safeguarding the quality, transparency, and confidence in our legal system.⁴² Knowledge of a party’s true identity is traditionally grounded within this right.⁴³

Alternatively, courts have held that proceeding by pseudonym does not directly impair the public’s ability to observe judicial proceedings, and in some cases, both the public and parties to the suit benefit from preserving anonymity.⁴⁴ In Doe v. Stegall, the Court reversed the District Court’s decision denying the parties request to proceed by pseudonym due to the substantial privacy interests of the vulnerable parties.⁴⁵ The Fifth Circuit Court of Appeals emphasized that the “assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name.”⁴⁶

2. The Party’s Interest: Right to Privacy

Due to the strong presumption against proceeding by pseudonym, courts have permitted pseudonymity in only “exceptional cases.”⁴⁷ InDoe v. Megless, the Court of Appeals for the Third Circuit endorsed the Provident Life test, which established six factors favoring anonymity and three factors disfavoring it.⁴⁸ Factors weighing for anonymity included:

(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant’s identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives.⁴⁹

Factors used to weigh against these were:

(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated.⁵⁰

Both federal and state courts have relied on these balancing factors to determine whether a party may proceed by pseudonym.⁵¹

Similarly, the court in Doe v. Borough of Morrisville listed special circumstances where anonymity would be favored in the interest of preserving privacy; these included “abortion, birth control, transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality.”⁵² Pseudonymity is especially favorable when there is “some social stigma” or a risk of physical harm to the party when they are required to disclose their true name.⁵³ Yet, anonymity does not overcome the public’s interest when it only serves to prevent economic harm or potential embarrassment.⁵⁴ Although these guidelines have assisted courts, they do not set an explicit standard.⁵⁵

C. The Emergence of Technology and Social Media

Technological advancements and the rise of social media have significantly impacted judicial procedures and privacy rights.⁵⁶ Decisions from several landmark cases show the Supreme Court’s willingness to adapt to the digital age.⁵⁷ In United States v. Jones, the Court held that installing a GPS device on a defendant’s vehicle was a violation of the right to privacy and the Fourth Amendment.⁵⁸ The Court explained a few years later, in Carpenter v. United States, that cell-site records pose an even greater threat to privacy than a GPS device.⁵⁹ Other courts have identified various types of technology that fall under the protection of the Fourth Amendment due to the sensitive nature of privacy interests, including cell phones, computers, and social media accounts.⁶⁰

States have enacted general laws pertaining to the right to privacy, some of which establish specific consumer data privacy laws.⁶¹ In Massachusetts, citizens are guaranteed a right “against unreasonable, substantial or serious interference with [their] privacy.”⁶² State laws have also addressed children’s online privacy due to the growing presence of minors on the internet.⁶³

Judicial attempts to adapt court proceedings in response to the emergence of technology are significant.[⁶⁴ For example, the Federal Rules of Civil Procedure have been updated to include electronic discovery.⁶⁵ Additionally, the Federal Judiciary Committee set forth new model jury instructions⁶⁶ that caution jurors against using social media during trials, outlining how exposure to social media can improperly influence a juror’s ability to reach an impartial verdict.⁶⁷ However, the impact of social media’s influence on First Amendment rights has been given limited attention outside the setting of data privacy.⁶⁸ Online court documents allow the public to access a widespread amount of private information on litigants, ranging from bank account numbers to psychological evaluations.⁶⁹ Court records are “littered with private and sensitive information about the litigants, witnesses, jurors, and others who come voluntarily or involuntarily into contact with the court system,” creating substantial fears around privacy protections.⁷⁰ Courts have difficulty determining which First Amendment rights should be sacrificed in the digitally dominant era.⁷¹ Therefore, there is a substantial concern that the First Amendment has fallen behind “in the technological, social media-focused landscape.”⁷²

II. The Court’s Opinion

A. Facts

In 2013, John Doe (“Defendant”) was a first-year student at Massachusetts Institute of Technology (“MIT”).⁷³ During his first year, the Defendant started a relationship with his classmate “Jane Roe” (“Roe”).⁷⁴ The relationship included occasional sexual intercourse and ended around the summer of 2014.⁷⁵ After Doe and Roe split, they continued to have consensual sex at times during the following semester.⁷⁶

On February 26, 2015, Roe went to the Defendant’s home to have him assist her in fixing her computer.⁷⁷ That evening, she “agreed to spend the night in his bed” and the two of them eventually fell asleep.⁷⁸ The pair had intercourse early in the morning the following day, February 27, 2015.⁷⁹ The Defendant believed Roe was fully conscious and that she provided nonverbal consent throughout the interaction; however, shortly afterward, Roe asked the Defendant what happened, and he told her they had sexual intercourse.⁸⁰ Months later, Roe told him that what transpired on the evening she slept over was “not okay.”⁸¹

Roe filed a complaint with MIT’s Title IX office in January of 2016, alleging that she had not consented to sexual contact nor intercourse with Doe on February 27, 2015.⁸² The office held an investigation and subsequently added a second charge of sexual harassment against Doe from conduct during 2013–2014, a period in which Doe and Roe were still dating.⁸³

On April 25, 2016, a panel of three faculty members held a hearing and although Doe denied responsibility, he was informed two days later that MIT found him responsible and he would be expelled.⁸⁴ Doe appealed the findings, arguing that he reasonably believed Roe had given consent and that expulsion was unwarranted.⁸⁵ MIT denied the appeal and expelled him before his graduation date.⁸⁶

B. Procedural History and Holding

On December 16, 2021, Doe filed suit against MIT.⁸⁷ On the same day, he “filed an ex parte motion to proceed by pseudonym,”⁸⁸ which the District Court denied in a minute order five days later.⁸⁹ Doe subsequently moved for reconsideration.⁹⁰ The following day, the District Court denied the motion for reconsideration, but stayed the case in anticipation of Doe’s appeal of the denial of his motion to proceed anonymously.⁹¹ Doe then filed a timely appeal.⁹²

After deciding that an application of the collateral order doctrine was permissible in this case,⁹³ the Court addressed whether the District Court’s decision to deny the Defendant’s motion to proceed by pseudonym was an abuse of discretion.⁹⁴ By introducing a new “totality of circumstances” test to evaluate when such use would be appropriate in civil litigation, the Court held that denying the motion was an abuse of discretion.⁹⁵

The “totality of circumstances” analysis incorporates a balancing test as well as four paradigms in which the Court would permit litigation by pseudonym.⁹⁶ The Court reiterated the underlying requirement that using pseudonyms should only occur in “exceptional cases.”⁹⁷ Nevertheless, the new standard balances the litigant’s interest in preserving their privacy against the public’s interest in disclosure and transparency, while accounting for all relevant circumstances.⁹⁸ Additionally, the Court set out four paradigms where it would generally permit anonymity.⁹⁹

The first paradigm involves a would-be Doe who reasonably fears that coming out of the shadows will cause him unusually severe harm (either physical or psychological) . . . The second paradigm involves cases in which identifying the would-be Doe would harm ‘innocent non-parties’ . . . The third paradigm involves cases in which anonymity is necessary to forestall a chilling effect on future litigants who may be similarly situated . . . The fourth paradigm involves suits that are bound up with a prior proceeding made confidential by law.¹⁰⁰

Because the District Court denied the Defendant’s motion based on a borrowed test that required a showing of reasonable fear of severe harm, and that his purported claim was “speculative conjecture,” the Court vacated and remanded the order.¹⁰¹ The Court held on remand that courts should employ the totality of circumstances test to determine whether the Defendant falls within one of these paradigms and may therefore proceed with a pseudonym.¹⁰²

Analysis

III. The Court’s Selective Analysis of First Amendment Rights for Determining Pseudonymity Undermines the Consequences of Litigating in a Digitally Dominated Era

Although the Court was correct to establish a new standard for the permissibility of proceeding by pseudonym, it overlooks the increasingly prevalent use of technology and social media. This case of first impression overlooks the newly emerging structures of society, thereby chipping away at the strength of their decision and increasing the risks of future fractures.¹⁰³ As the popularity of digital content has rapidly grown, the scope of First Amendment protections has also expanded.¹⁰⁴ Public access and privacy are assessed differently today than they were before the emergence of social media.¹⁰⁵ Therefore, omitting a discussion regarding the grounds on which these rights have evolved presents significant vulnerabilities to the Court’s reasoning.¹⁰⁶

A. The Court Does Not Afford the Same Recognition Towards the Right to Privacy

The Court extensively reviewed the presumption against pseudonymity and confirmed the strength of its foundation.¹⁰⁷ Stemming from historical recognition of the right to public access, the Court highlighted the importance of promoting confidence within the judicial system.¹⁰⁸ Acknowledging this First Amendment freedom was essential to address the limitations around the admittance of pseudonymous parties in litigation.¹⁰⁹ Yet the Court does not afford the same in-depth analysis for the right to privacy aside from referencing it analogously to FERPA and Title IX for purposes of the fourth paradigm.¹¹⁰ Because of this, the Court placed more importance on the right to public access than the right to privacy, suggesting that open judicial proceedings are intrinsically favorable.¹¹¹ However, in an age where private information is easily accessible, this tradition may no longer be celebrated like it once was.¹¹²

B. The Court Fails to Consider Social Media’s Implication on Pseudonymity and First Amendment Rights

Technology has accelerated functional aspects of First Amendment rights–it has changed the way individuals communicate and express themselves, advanced the press’ publishing capabilities, and provided greater public access to information.¹¹³ The internet allows instant and easy dissemination of content, which has fundaamentally propelled the pace of news.¹¹⁴ By adopting online record systems, courts enable “the public to search and download records without ever having to set foot in a courthouse.”¹¹⁵ Thus, freedom of the press and the right to public access have inherently maintained superiority in navigating digital developments.

Emphasis on privacy, however, has diminished in the digital age and technological advancements have challenged it in unparalleled ways.¹¹⁶ The expanded access that these freedoms have afforded creates controversies around protecting privacy and its relationship with the judicial system.¹¹⁷ The court’s “[r]eluctance to permit pseudonymous plaintiffs stifles the judicial process, forcing some plaintiffs to choose to forgo their claims in the name of protecting their privacy.”¹¹⁸ Online access to court documents seamlessly enables the capturing of public attention and can cause embarrassment for parties wishing to remain anonymous; “‘[i]ntimate, often painful allegations in lawsuits—intended for the scrutiny of judges and juries—are increasingly drawing in mass online audiences far from the courthouses where they are filed.’”¹¹⁹ Thus, the influence of social media and the availability of private information creates hesitancy for parties pursuing litigation.¹²⁰ Additionally, the lack of sufficient privacy protections has permeated the public’s distrust and concern with the government and private industries.¹²¹

The Court focuses on avoiding the public’s distrust by supporting the strong presumption against pseudonymity and favoring open access to courts.¹²² However, forfeiting the discussion around the internet’s nascent influence on personal privacy in litigation erodes confidence in judicial proceedings just as well.¹²³

IV. By Disregarding the Digital Dimensions of the First Amendment, the Court Overlooks Potential Fractures in the Test’s Application and its Intended Solution

After establishing supportive reasoning for the four paradigms, the Doe v. MIT Court describes their totality of circumstances test as a “useful tool” for future courts.¹²⁴ The Court acknowledged that the paradigms might not capture all cases where pseudonymity would be appropriate, thereby granting other courts broad discretion in administering its applicability.¹²⁵ In turn, courts and litigants could launch alternate interpretations of the test’s parameters, brewing various administrative burdens alongside it.¹²⁶ The totality of circumstances test could be likened to an iteration of the already established balancing tests outlined in Megless or Morrisville.¹²⁷ The failure to merge technological influence on pseudonymity results in the failure to establish a diversified and prevalent test.

A. The Court Does Not Consider Relevant Circumstances that Contribute to the Escalation of Physical or Psychological Harm in Judicial Proceedings

By omitting an analysis of the internet’s impact on First Amendment rights, it becomes unclear how courts and attorneys should move forward in determining party pseudonymity. This decision is especially daunting where parties to civil suits could face additional repercussions before and in the aftermath of litigation.¹²⁸

The first paradigm discusses a Doe who “reasonably fears” he will face either severe physical or psychological harm.¹²⁹ The Court goes on to cite supportive cases, including situations of sexual assault victims, parties who have battled eating disorders, and retaliation.¹³⁰ These are important and relevant factors; however, the Court neglects to include other factors, such as economic or reputational harm, that could accelerate physical or psychological harm.¹³¹ Additionally, it does not attempt to analyze a prominent and essential area where fear of these harms prospers: social media.

Although many courts have specifically excluded economic harm as a basis to proceed by pseudonym, this exclusion has been limited to circumstances where “only the plaintiff’s economic or professional concerns are involved.”¹³² Using the word “only” suggests that courts may consider economic harm when supplementing other acceptable factors that historically favor pseudonymity.¹³³ Although critics could argue that economic and reputational harm would broaden the scope of pseudonymity, courts have been able to apply these factors more rigorously when their effects prove to be substantial.¹³⁴

Additionally, these cases were not decided when social media and “cancel culture” controlled the opinions of societal authority.¹³⁵ While the term social media has been around since 1994, cancel culture gained major recognition in 2017.¹³⁶ Described as a cultural boycott against certain people, businesses, or ideas, cancel culture relies on trends and the court of public opinion rather than the judicial system, requiring no evidentiary proof, due process, or rule of law.¹³⁷ And without these parameters, social media recycles the age-old act of public shaming into a deleterious phenomenon, undermining the judiciary and presenting even greater consequences than the traditional angry mob.¹³⁸ Although courts have not recognized it as a direct cause of physical or psychological harm, “[c]ancel culture can inflict real personal pain well beyond the digital realm such as job loss, revoked admissions, threats or psychological distress.”¹³⁹ Importantly, licensed professionals report that people experience intense symptoms after getting canceled online and that they feel their safety is threatened.¹⁴⁰ And because social media accelerates cancel culture, “[c]ancellation spreads like wildfire” and is “virulently uncontrollable.”¹⁴¹

Although these consequences were not considered in the rulings on proceeding by pseudonym, they are often analyzed in other areas of the law concerning constitutional protections.¹⁴² A recent decision in Americans For Prosperity Foundation v. Bonta upheld the precedent established in a landmark case, NAACP v. Alabama.¹⁴³ In NAACP, the Supreme Court recognized that exposing members’ identities would subject them to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”¹⁴⁴ The effects of this decision, paired with the collective understanding that people have the right to advocate for their beliefs, led the Supreme Court to enforce the freedom of privacy in association.¹⁴⁵ The Bonta Court referenced similar triggers for the nonprofit organization and held that the California Attorney General’s demand for their donor list was unconstitutional. ¹⁴⁶ These courts recognize the consequences of economic and reputational harm absent privacy protections and subtly hint towards the disapproval of cancel culture. ¹⁴⁷

Similarly, in Paul v. Davis, the Supreme Court introduced a stigma-plus test requiring a purported violation of reputational interest to implicate other tangible interests, such as economic or employment status, to trigger due process protections.¹⁴⁸ There, the defendant suffered damage to his reputation, but it had no impact on his employment status, so he was not afforded such protections.¹⁴⁹ If presented as an issue under due process, the consequences of cancel culture would pass the stigma-plus test because it could inflict damage to reputations and elevate to loss of employment. ¹⁵⁰ Yet, reputational and economic harm were neither mentioned, nor explicitly excluded in Doe v. MIT’s formulation of the test, despite including these concerns in the complaint filed by the Defendant.¹⁵¹ This, paired with the Court’s admission that the paradigms may not include all cases where pseudonymity is applicable, leaves an interpretation that there may be space for economic injury when it causes physical or psychological harm.¹⁵²

Reputational and economic harm arising from social media could have additional implications on the second and third paradigms, which discuss harm to innocent non-parties and deterrence to future litigants.¹⁵³

Public online backlash presents potential harm to innocent non-parties due to the use and openness of social media accounts.¹⁵⁴ The effects of public shaming may extend to non-parties who associate with the person or entity getting canceled.¹⁵⁵ This is evident in the context of companies that suffer brand damage resulting from a partner or employee’s public condemnation.¹⁵⁶ Further, canceling businesses can have consequences for innocent employees who may be targeted for being a part of the business.¹⁵⁷ Universities also risk this type of backlash after a student or faculty member gets canceled.¹⁵⁸ Additionally, unrestricted access to public records threatens privacy interests as well as serious misuse of non-party information.¹⁵⁹

Fear of retaliation for being associated with unpopular people or ideologies can correlate to the third paradigm of deterrence.¹⁶⁰ In addition to privacy, cancel culture has been criticized for “canceling” a separate First Amendment right: free speech.¹⁶¹ Courts have consistently held that subjectively offensive speech is protected, however, fear of public shaming as a form of retaliation seems to generate greater deterrence than suppression of speech.¹⁶² Thus, considering severe economic and reputational harm in the first paradigm would also complement the second and third paradigms in the totality of circumstances test.¹⁶³

B. The Court Ignores the Practical Burdens Placed on Juries and Litigants as a Result of the Totality of Circumstances Test

1. Burdens of an Influenced Jury

Courts have been aware of social media’s power and its ability to influence jurors since 2012.¹⁶⁴ The Federal Judiciary Committee issued model jury instructions that guarded against the internet’s potential negative impact on trials.¹⁶⁵ Since then, the Committee has expanded these instructions as “social media has been used with greater sophistication to communicate disinformation and influence public opinion.”¹⁶⁶

The recent case Depp v. Heard is an example of how social media outlets like Instagram and TikTok work in favor of the right to public access and against the right to privacy.¹⁶⁷ The civil suit between the famous movie stars involved issues of defamation and allegations of abuse.¹⁶⁸ The case was publicly televised, causing it to become the internet’s obsession for the entire six-week trial.¹⁶⁹ The public quickly took sides, which caused one party to be exposed to a disproportionate amount of criticism and shame via social media platforms.¹⁷⁰ As a result, speculation over whether the jury was exposed to, and subsequently influenced by, social media developed.¹⁷¹ This case supports the theory that openness of civil litigation can often be used for entertainment purposes, rather than the traditional values of the right to public access.¹⁷² Additionally, it exemplifies how the presumption of openness and the public’s utilization of this presumption can impact jurors and litigants throughout a civil trial.¹⁷³

As the right to public access has flourished by aid of the internet, lawyers warn that excessive public backlash can leave cancel-culture-like residues on judicial proceedings, “leading jurors to want to send a message with their verdict.”¹⁷⁴ Courts have attempted to mitigate these scenarios by issuing specific jury instructions, restricting jurors’ internet access, and allowing lawyers to monitor jurors’ social media accounts during trial.¹⁷⁵ Yet enforcing these limitations on jurors’ social media activity can be ineffective, laborious, and raise ethical questions.¹⁷⁶ As such, efforts to diminish social media exposure have instead increased practical burdens for courts, jurors, litigants, and lawyers.¹⁷⁷

These situations can also impose irreparable harm to litigants and plant a seed of distrust between them and the judicial system.¹⁷⁸ Because of this, would-be parties may forgo seeking justice in fear of having their private information become public or being categorized as litigious.¹⁷⁹ Social media influence deters potential parties from pursuing litigation in order to preserve their First Amendment right to privacy.¹⁸⁰

2. Consequences of Congested Courts

The Court does not account for other administrative burdens following the enactment of the totality of the circumstances test; instead it advises courts that permit pseudonymity to “periodically reevaluate [the order] if and when circumstances change,” adding another potential step in the process.¹⁸¹ Because the Court allows for broad discretion when administering the test and the paradigms include a wide range of scenarios, more parties may file these motions—even where pseudonymity may not be at issue.¹⁸² Parties may also employ experts to testify to the psychological or physical harm experienced based on the case facts and context of the issue.¹⁸³ An influx of case filings and additional steps in litigation heighten the possibility of congested courts.¹⁸⁴

Additionally, the Court does not consider the test’s implications on other civil actions arising from suits where the parties are not granted pseudonymity.¹⁸⁵ This domino effect could potentially lead to defamation and tort claims around privacy violations and online abuse.¹⁸⁶ The presence of the internet and lack of privacy protections unsurprisingly amplify these types of administrative burdens.¹⁸⁷

V. The Court Should Consider Adding Specifications to the Test

Digital transformation has altered perceptions around the importance of First Amendment rights.¹⁸⁸ There is an apparent and growing imbalance between these rights—the right to public access excels with the expansion of internet usage which inadvertently sacrifices the right to privacy.¹⁸⁹ This disparity will likely broaden as technology continues to advance.

To restore the imbalance promulgated by social media, courts should afford more appreciation towards the freedom of privacy when reviewing a motion for pseudonymity. When the facts and circumstances of a lawsuit are otherwise available, the public is not severely impaired by a plaintiff proceeding pseudonymously.¹⁹⁰ By contrast, the public would be impaired if potential parties decide not to pursue litigation, resulting in “lost opportunities for the creation of invaluable precedent” and diminished confidence in the courts.¹⁹¹ Further, “[i]nstead of increasing social respect for the judicial system, unrestricted access to court records will undermine the respect and confidence the courts in this country have traditionally enjoyed.”¹⁹² Granting greater consideration to parties’ right to privacy would help build trust between the public, litigants, and the courts. ¹⁹³

Social media can produce significant repercussions that impact past, present, and future litigants. These repercussions envelop the aforementioned disadvantages to the judicial system as well as the public.¹⁹⁴ In the digital age, electronic records and internet receipts are not easily destroyed and could exist in cyberspace forever.¹⁹⁵ This creates uncertainties around whether compromising the right to privacy for the right to public access is a fair trade-off.¹⁹⁶

To combat this, the Court should further specify the test’s paradigms and consider including economic and reputational harm under the first paradigm. Expanding the first paradigm to include these harms would exemplify the Court’s willingness to understand and adapt to the new realities of litigating in the digital era.¹⁹⁷ Not only would this build the public’s confidence in the courts, but it would help narrow the paradigm’s criterion and alleviate administrative burdens.¹⁹⁸ Similarly, adding details to the remaining paradigms would help relieve these types of burdens by discouraging parties from filing erroneous pseudonym motions and eliminating nonessential steps in litigation.¹⁹⁹

Conclusion

The Court was tasked with resolving a problem that has no clear solution: determining whether to relinquish a First Amendment right in the course of civil litigation. The right to public access is the cornerstone of democracy, but the ever-changing and prominent influence of the internet has signaled a warning around an opposing corner of democracy: the right to privacy. It is fair that pseudonymity should be permitted only in exceptional cases; however, the current and increasingly problematic threat to privacy in the internet age is exceptional. And reluctance to permit pseudonymity may “defeat the very values courts seek to protect,”²⁰⁰ which may weaken other eligible protections under the internet’s influence. Because of this, courts must analyze the issue of pseudonymity through a digitally dominant lens. Doing so would adhere to the practical effects of preserving privacy in a decreasingly private world.

1
Also known as Mary Grace Castle. J.D. Candidate, New England Law | Boston (2025).
2
Wolfson v. Lewis, 924 F. Supp. 1413, 1416 (E.D. Pa. 1996).
3
Richmond Newspapers v. Virginia, 448 U.S. 555, 579–80 (1980).
4
See Paul Sagan & Tom Leighton, The Internet & the Future of News, 139 Daedalus 119, 119–20 (2010).
5
How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, Pew Charitable Tr. (Dec. 1, 2021), https://perma.cc/83SX-DJ38.
6
Nicole Martin, How Social Media Has Changed How We Consume News, Forbes (Nov. 30, 2018, 4:26 PM EST), https://perma.cc/QY7R-HVM9.
7
See generally Brooke Auxier et al., Americans and Privacy: Concerned, Confused and Feeling Lack of Control Over Their Personal Information Pew Rsch. Ctr. (Nov. 15, 2019), https://perma.cc/Y5NR-VUSA [hereinafter Concerned, Confused].
8
See Liberty Media Holdings v. Swarm Sharing Hash File, 821 F. Supp. 2d 444, 452 (D. Mass. 2011).
9
Lee Rainie, Americans’ Complicated Feelings About Social Media in an Era of Privacy Concerns, Pew Rsch. Ctr. (Mar. 27, 2018), https://perma.cc/B7E7-CV73.
10
Scripps News, How ‘Cancel Culture’ Works, YouTube (Jan. 14, 2022), https://perma.cc/J3LJ-YPXS.
11
Julia Manchester, 64 Percent View ‘Cancel Culture’ as Threat to Freedom: Poll, The Hill (Mar. 29, 2021, 12:14 PM ET), https://perma.cc/75EX-9KZJ.
12
Commonwealth v. Winfield, 985 N.E.2d 86, 92 (Mass. 2013).
13
See Sagan & Leighton, supra note 4.
14
Doe v. Mass. Inst. of Tech., 46 F.4th 61, 70 (1st Cir. 2022).
15
U.S. Const. amend. I.
16
Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Richmond Newspapers v. Virginia, 448 U.S. 555, 580 (1980).
17
Griswold, 381 U.S. at 483–84.
18
Richmond Newspapers, 448 U.S. at 580.
19
Id. at 576.
20
Id. at 575.
21
Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 466–67 (E.D. Pa. 1997).
22
448 U.S. at 581.
23
Id. at 576–77.
24
Id. at 580.
25
See NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958) (recognizing “the vital relationship between freedom to associate and privacy in one’s associations”).
26
Magnuson v. Cassarella, 812 F. Supp. 824, 830 (N.D. III. 1992).
27
381 U.S. 479, 484 (1965); see Carey v. Population Servs. Int’l, 431 U.S. 678, 684–85 (1977); see also Lawrence v. Texas, 539 U.S. 558, 574 (2003).
28
Whalen v. Roe, 429 U.S. 589, 599 (1977).
29
Id. at 599–600.
30
See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 240 (2022) (overturning precedents where abortion was included in the right to privacy).
31
Id. at 290.
32
Carey , 431 U.S. at 684–85; Davis v. Bucher, 853 F.2d 718, 719 (9th Cir. 1988).
33
See Doe v. Mass. Inst. of Tech., 46 F.4th 61, 67 (1st Cir. 2022).
34
Fed. R. Civ. P. 10(a); Fed. R. Civ. P. 17(a).
35
Fed. R. Civ. P. 17(a); EW v. N.Y. Blood Ctr., 213 F.R.D. 108, 109 (E.D.N.Y. 2003).
36
Fed. R. Civ. P. 10(a).
37
Barcelo v. Brown, 478 F. Supp. 646, 661 (D.P.R. 1979).
38
See Fed. R. Civ. P. 5.2(a).
39
Liberty Media Holdings v. Swarm Sharing Hash File, 821 F. Supp. 2d 444, 452 (D. Mass. 2011) (quoting Roe v. General Hospital Corp., Civil Action No. 11-991-BLS1, 2011 WL 2342737, at *1 (Mass. Super. Ct. May 19, 2011)).
40
See Doe v. Mass. Inst. of Tech., 46 F.4th 61, 69 (1st Cir. 2022).
41
Id.
42
Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir. 2011).
43
See Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 466–67 (E.D. Pa. 1997).
44
See Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1073 (9th Cir. 2000) (explaining that pseudonymity serves the public interest because “fear of employer reprisals will frequently chill employees’ willingness to challenge employers’ violations of their rights”).
45
Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981).
46
Id at 185.
47
Doe v. Mass. Inst. of Tech., 46 F.4th 61, 67 (1st Cir. 2022).
48
Doe v. Megless, 654 F.3d 404, 409–10 (3d Cir. 2011); Provident Life, 176 F.R.D. at 467–68.
49
Megless, 654 F.3d at 409.
50
Id.
51
Doe v. Mills, 39 F.4th 20, 25–26 (1st Cir. 2022).
52
Doe v. Bor. of Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990).
53
Doe v. Rostker, 89 F.R.D. 158, 161 (N.D. Cal. 1981).
54
Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F. Supp. 2d 444, 452 (D. Mass. 2011).
55
See generally Doe v. Mass. Inst. of Tech., 46 F.4th 61, 69 (1st Cir. 2022) (explaining how multifactor tests often fail to establish a clear standard).
56
See U.S. Cong. Off. of Tech. Assessment, Sci., Tech., and the First Amendment, OTA-CIT-369, at 1–2 (1988).
57
See, e.g., Carpenter v. United States, 585 U.S. 296, 320 (2018) (prohibiting the use of a defendant’s cell-site location information without a warrant); see also United States v. Jones, 565 U.S. 400, 408–10 (2012) (holding that the installation of a GPS device on a defendant’s vehicle was a violation of privacy rights and the Fourth Amendment).
58
Jones, 565 U.S. at 404.
59
Carpenter, 585 U.S. at 297.
60
See Riley v. California, 573 U.S. 373, 407 (2014) (holding that police officers cannot search digital information on cell phones without a warrant); United States v. Payton, 573 F.3d 859, 861 (9th Cir. 2009) (holding that search of the defendant’s computer exceeded the scope of the warrant); United States v. Shipp, 392 F. Supp. 3d 300, 307–08 (E.D.N.Y. 2019) (explaining that there are “serious concerns regarding the breadth of Facebook warrants” because social media accounts contain personal details of a person’s life).
61
State Laws Related to Digital Privacy, Nat’l Conf. of St. Legis., https://perma.cc/6QWB-RJ3H (last updated June 7, 2022).
62
Mass. Gen. Laws ch. 214, § 1B.
63
State Laws Related to Digital Privacy, supra note 60; Brooke Auxier et al., Pew Rsch. Ctr., Parenting Children in the Age of Screens, at 1, 3 (2020).
64
See Mass. Trial Ct. R. XIV, 5(a) (granting the public remote access to court records through an internet portal in Massachusetts).
65
Fed. R. Civ. P. 26(b)(2) advisory committee’s note (2006 Amendment).
66
See generally Jud. Conf. Comm. on Ct. Admin. and Case Mgmt., Proposed Model Jury Instructions: The Use of Electronic Technology to Learn or Communicate About a Case (2020) [hereinafter Model Instructions,].
67
New Jury Instructions Strengthen Social Media Cautions,U.S. Cts.(Oct. 1, 2020), https://perma.cc/D2T7-KFNP [hereinafter New Jury Instructions].
68
See generallyPrivacy Act of 1974, 5 U.S.C. § 552a (providing the privacy principles that are considered when using and collecting personal data information).
69
David S. Ardia, Privacy And Court Records: Online Access and the Loss of Practical Obscurity, 2017 U. Ill. L. Rev. 1385, 1391 (2017).
70
Id. at 1387.
71
See id.
72
Loren Steffy, Reimagining the First Amendment in the Digital Age, Arnold Ventures (Mar. 24, 2022), https://perma.cc/7EHK-6ACP.
73
Doe v. Mass. Inst. of Tech., 46 F.4th 61, 64 (1st Cir. 2022).
74
Id.
75
Id.
76
Id.
77
Id.
78
Id.
79
Mass. Inst. of Tech., 46 F.4th at 64.
80
Id.
81
Id.
82
Id.
83
Id.
84
Id.
85
Mass. Inst. of Tech., 46 F.4th at 64.
86
Id.
87
Id.
88
Id. at 65.
89
Id.
90
Id.
91
Mass. Inst. of Tech., 46 F.4th at 65.
92
Id.
93
Id. at 66.
94
Id.
95
Id. at 77.
96
Id. at 70.
97
Mass. Inst. of Tech., 46 F.4th at 70.
98
Id. at 72.
99
Id. at 71.
100
Id.
101
Id. at 73.
102
Id. at 77.
103
Compare Carpenter v. United States, 585 U.S. 296, 297–98, 305 (2018) (overturning precedents that did not consider certain technological advancements to be in violation of the reasonable expectation of privacy), with United States v. Miller, 425 U.S. 435, 440–44 (1976) (holding there was no legitimate expectation of privacy in bank records), and Smith v. Maryland, 442 U.S. 735, 744–45 (1979) (holding there was no legitimate expectation of privacy in dialing telephone numbers).
104
See U.S. Cong. Off. of Tech. Assessment, supra note 56.
105
See Nadine Barrett-Maitland & Jenice Lynch, Social Media, Ethics and the Priv. Paradox 3, 4–5 (Christos Kalloniatis & Carlos Travieso-Gonzalez eds. 2020).
106
See generally id.at 2 (“An understanding of the problems and dangers of privacy in the digital space is therefore the first step to privacy control.”).
107
Mass. Inst. of Tech., 46 F.4th at 69.
108
Id.
109
See id. at 67.
110
See id. at 74–75.
111
See Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff in the Information Age, 53 U. Kan. L. Rev. 195, 205 (2004).
112
See id.
113
See U.S. Cong. Off. of Tech. Assessment, supra note 56.
114
Sagan & Leighton, supra note 4, at 119.
115
Ardia, supra note 69, at 1387.
116
Ressler, supra note 111, at 210.
117
Ressler, supra note 111, at 204 (explaining that “[c]ourt records are thus just one type of record easily available to computer users” and “‘Googling’ an individual . . . discover[s] a wealth of information”).
118
Ressler, supra note 111, at 205.
119
Ardia, supra note 68, at 1387–88 (quoting Jodi Kantor, Lawsuits’ Lurid Details Draw an Online Crowd, N.Y. Times, Feb. 23, 2015, at A1).
120
Ressler, supra note 111.
121
Off. of Legis. Rsrch., The Evolution of Privacy: A Look at the Past, Present, and Future, Conn. Gen. Assemb. Rep. No. 98-R-1455 (1998); see Concerned, Confused, supra note 7.
122
See Doe v. Mass. Inst. of Tech., 46 F.4th 61, 69 (1st Cir. 2022).
123
See Ressler, supra note 111.
124
46 F.4th at 72.
125
Id.
126
Cf. Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 625 F.3d 1182, 1191 (9th Cir. 2010) (Reinhardt, J., with Kozinski, J., dissenting) (explaining that “multi-part tests are often subject to subjective and inconsistent application”).
127
Compare Doe v. Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990), and Doe v. Megless, 654 F.3d 404, 409 (3d Cir. 2011), with Mass. Inst. of Tech., 46 F.4th at 71.
128
See Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, 79 Wash. L. Rev. 307, 315 (2004) (explaining that unrestricted access to court documents results in litigants and other participants losing their privacy interests and that “their identities will be subject to potential misuse by thieves, and their children may be exposed to sexual predators”); infra text accompanying note 182.
129
Mass. Inst. of Tech., 46 F.4th at 71.
130
Id.
131
See generally id. (omitting examples that could lead to physical or psychological harm).
132
Nat’l Commodity & Barter Ass’n, Nat’l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989).
133
See id.
134
See Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1422 (2022) (explaining that courts have allowed pseudonymity where it involves whistleblowers or plaintiff’s disabilities).
135
See e.g.,Liberty Media Holdings v. Swarm Sharing Hash File, 821 F. Supp. 2d 444, 452 (D. Mass. 2011); see also S. Methodist Univ. Ass’n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979); Doe v. Bell Atl. Bus. Sys. Servs., 162 F.R.D. 418, 420 (D. Mass. 1995).
136
Thomas Aichner et al., Twenty-Five Years of Social Media: A Review of Social Media Applications and Definitions from 1994 to 2019, 24 Cyberpsychology, Behav., and Soc. Networking 215, 215 (2021); Rachel E. Greenspan, How ‘Cancel Culture’ Quickly Became One of the Buzziest and Most Controversial Ideas on the Internet Insider (Aug. 6, 2020, 8:30 AM ET), https://perma.cc/3CEM-LHZA.
137
Greenspan, supra note 135; Beatriz Oliveira, A Return to Public Square Trials? How Cancel Culture and Perp Walks May Undermine Trial Impartiality and Criminal Justice, Colum. Undergrad. L. Rev. (July 21, 2021), https://perma.cc/4E5W-ZKRL.
138
See Steven A. Koh, “Cancel Culture” and Criminal Justice , 74 Hastings L. J. 79, 105–06 (2022).
139
Oliveira supra note 137.
140
Alesandra Dubin, Why Cancel Culture is So Toxic and How to Effectively Hold Folks Accountable, According to Social Media Experts, Insider (Oct. 28, 2022, 2:22 PM ET), https://perma.cc/9J96-RP6S; see Maggie Mulqueen, Cancel Culture Has Reached the Therapist’s Couch, NBC News (April 9, 2022, 4:30 AM EDT), https://perma.cc/CG5Y-4DEA.
141
Joseph Ching Velasco, You Are Cancelled: Virtual Collective Consciousness and the Emergence of Cancel Culture as Ideological Purging, 12 Rupkatha J. 1, 2 (2020).
142
See Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 617–18 (2021); NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 466 (1958). See generally Paul v. Davis, 424 U.S. 693 (1976).
143
Bonta, 594 U.S. at 617–18; see NAACP, 357 U.S. at 466.
144
NAACP, 357 U.S. at 462.
145
Id.
146
Bonta, 594 U.S. at 606.
147
See Margaret A. Little, Cancel Culture on Trial, New Civ. Liberties All. (Feb. 26, 2021), https://perma.cc/Z7MC-6EEQ. See generally NAACP, 357 U.S. at 462; Bonta, 594 U.S. at 606.
148
Paul v. Davis, 424 U.S. 693, 701 (1976).
149
Id.
150
See id.; see also Oliveira, supra note 137.
151
See generally Doe v. Mass. Inst. of Tech., 46 F.4th 61, 65 (1st Cir. 2022) (“John sought monetary damages, including damages for reputational harm, ‘past and future economic losses, loss of educational opportunities, and loss of future career prospects.’”).
152
Id. at 72.
153
See id. at 71.
154
See Barrett-Maitland & Lynch, supra note 104, at 7 (explaining that “[m]any times, these details are shared on several social media platforms” and “[w]ith this openness of sharing risks and challenges arise that are often not considered but can have serious impacts”).
155
See Dubin, supra note 140 (explaining that “[c]ancel culture does not only affect one person, but it can also affect the people surrounding that person”).
156
Oliveira, supra note 137.
157
See Thando Lerato Manaka, The High Cost of Cancel Culture: An In-Depth Look at Its Financial Implications, LinkedIn (Apr. 18, 2023), https://perma.cc/ZR87-683R.
158
Jennifer Miller, What College Students Really Think About Cancel Culture, The Atlantic (Feb. 4, 2022), https://perma.cc/5TUT-DJSL.
159
See Winn,supra note 128, at 315.
160
See Dubin, supra note 140.
161
See Zoe Thomas, What Is the Cost of ‘Cancel Culture’?, BBC News (Oct. 8, 2020), https://perma.cc/8G5Q-ZXUG (explaining that cancel culture prevents people “from voicing opinions out of fear they will be personally attacked”).
162
Carey v. Population Servs. Int’l, 431 U.S. 678, 701 (1977); see How Cancel Culture Psychology and Toxic Tribalism Impact Young Adult Mental Health, Newport Inst. (Mar. 15, 2022), https://perma.cc/X889-DV43 (referencing a national poll that showed 61% of young adults did not speak up on at least one occasion due to fears about being canceled or experiencing retaliation).
163
See Thomas, supra note 161.
164
See New Jury Instructions, supra note 67.
165
See New Jury Instructions, supra note 67. See generally Model Instructions, supra note 65.
166
See New Jury Instructions, supra note 67.
167
See Depp v. Heard, 107 Va. Cir. 80, 81 (Va. Cir. 2021); see also TODAY, Amber Heard Breaks Silence: I Don’t Blame the Jury, YouTube (June 13, 2022), https://perma.cc/QLZ8-E4L3.
168
Heard, 107 Va. Cir. at 81.
169
Mariah Espada, Netflix’s Depp v. Heard Documentary Examines How Social Media Took Over the Trial, TIME (Aug. 16, 2023, 2:27 PM EDT), https://perma.cc/S6PE-QH6T.
170
Id.; accord TODAY, supra note 167.
171
Edward Helmore, Depp-Heard Trial Verdict Decried as ‘Symptom of a Culture That Oppresses Women’, The Guardian, https://perma.cc/57NJ-XC8Q (last modified June 3, 2022, 2:31 PM EDT) (“Heard’s lead attorney said ‘lopsided’ social media posts about the trial turned the courtroom into a ‘zoo’ and influenced the jury’s verdict.”).
172
Ressler, supra note 111, at 222.
173
See Helmore, supranote 171.
174
Hailey M. Hopper et al., You’re Cancelled: A Litigation Primer on Cancel Culture and Jury Bias, USLAW Mag., Spring 2021, at 11.
175
See New Jury Instructions, supra note 67; Marcy Zora, Note, The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights, 2012 U. Ill. L. Rev. 577, 598 (2012); accord John Browning, Don’t Take Heat for That Tweet: Avoiding Ethical Pitfalls in the Use of Social Media, 66 Fed. Law. 57, 58 (2019).
176
See generally Browning, supra note 175 (explaining that lawyers’ use of social media can raise ethical issues during case investigation, evidence preservation, and jury selection); Zora, supra note 175, at 597 (arguing that the risk of jurors engaging in social media activity cannot be eliminated).
177
Hopper et al., supra note 174 (suggesting that lawyers should “develop strategies and techniques” for their clients in order to prevent “cancel culture cause[d] juror bias”); Laura Temme, Social Media Use by Juries: Is There Any Way to Stop It?, FindLaw, https://perma.cc/3HYH-54N4 (last updated Aug. 27, 2019) (noting that “California legislators enacted a law in 2016 allowing judges to issue a $1,500 fine to jurors caught using social media”).
178
See Ressler, supra note 111, at 220 (explaining that there is a “decrease in confidence in the judicial system among plaintiffs forced to choose to abandon their meritorious claims for fear of being required to disclose private matters”).
179
Ressler, supra note 111, at 219.
180
See Ressler, supra note 111, at 220.
181
Doe v. Mass. Inst. of Tech., 46 F.4th 61, 73 (1st Cir. 2022).
182
Id. at 72; see Volokh, supra note 134, at 1377.
183
Cf. Doe v. Ayers, 789 F.3d 944, 946 (9th Cir. 2015) (allowing the petitioner to proceed by pseudonym after employing expert evidence to convince the court that his “particular circumstances represented [an] ‘unusual case’”).
184
See Harry C. Westover, The Cause, Effect and Solution of Congestion in the Federal Courts, 10 Hastings L.J. 384, 385 (1959).
185
See Mass. Inst. of Tech., 46 F.4th at 68.
186
See Nanci K. Carr, How Can We End #CancelCulture—Tort Liability Or Thumper’s Rule?, 28 Cath. U. J. L. Tech 133, 140–145 (2020) (arguing that cancel culture could invoke tort liability to deter public shaming because it is wrongful conduct); but see Oliveira, supra note 137, at 7–8 (observing that truth is an absolute defense in defamation claims, so it may be inapplicable in the context of cancel culture).
187
See Ardia, supra note 69, at 1386.
188
See U.S. Cong., Off. of Tech. Assessment, Sci., Tech., and the First Amendment, OTA-CIT-369, at 1–2 (1988).
189
See Sagan & Leighton, supra note 4, at 119–20.
190
Ressler, supra note 111, at 219.
191
Ressler, supra note 111, at 219–20.
192
Winn, supra note 128, at 315.
193
See Winn, supra note 128, at 315.
194
See Ressler, supra note 111, at 219–20.
195
Winn, supra note 128, at 317.
196
See Winn, supra note 128, at 317 (“In an age of electronic information, a serious question arises as to whether a rehabilitated criminal will be allowed to put his past behind him.”).
197
Cf. Commonwealth v. Warren, 58 N.E.3d 333, 342 (Mass. 2016) (explaining that Black men are “disproportionately and repeatedly” stopped by police, and so courts should consider this reality when deciding whether evidence of flight shows a guilty conscience or whether it is a result of this reality).
198
See Ressler, supra note 111, at 220.
199
See Ressler, supra note 111, at 220–21.
200
See Ressler, supra note 111, at 214.

Gracie Castle

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Civil Litigation, Doe v. Massachusetts Institute of Technology, First Amendment, First Circut, privacy, Pseudonym, Social Media, Technology