The Hidden Provision in the 'Big Beautiful Bill' that Seeks to Weaken the Judicial Branch - Ep. 66

Welcome to Litigation Nation. I'm your host, Danessa Watkins, here with my cohost, Jack Sanker. As a reminder, this is the show where every two weeks, we'll give a wrap up of the new and exciting legal news from across the country. What are you gonna share with us today, Jack?

The new tax and spending bill that just passed the house today actually contains a pretty severe limitation on the federal court contempt powers to enforce injunctions and temporary restraining orders, could have wide ranging implications. This is gonna tie into the overall immigration fight that's happening. But it also is a big land landscape change for anyone that litigates a federal court.

Got it. Excellent. Alright. And I'm going to cover the seemingly recent push to preclude litigants from filing lawsuits under a pseudonym. So like Jane Doe or John Doe, to protect their privacy interests.

So all that and more, here's what you need to know.

Tucked away in the federal spending bill that just passed the house by a one vote margin today, and today is May 22, is a seemingly innocuous provision that, if passed by the Senate, will severely limit federal court's abilities to enforce temporary restraining orders and injunctions. The provision reads from the bill, quote, no court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to federal rule of civil procedure 65 c, whether issued prior to, on, or subsequent to the date of enactment of this subsection, unquote. For the analysis of this provision in the bill, I'm gonna be relying on an article published, on justsecurity.org, is by a Berkeley School of Law professor Irwin Chemerinsky. And the provision in this new bill is is relying on and references federal rule 65 c, which says, kinda generally that judges can issue temporary restraining orders or preliminary injunctions only if the party seeking the TRO or the injunction provides a, quote, security in an amount that the court considers proper to pay the costs and damages by any party found to have been wrongfully enjoined or restrained, unquote.

So what is what is the purpose of federal 65 c, which already exists, by the way? It's so that if someone is enjoined via a TRO or a preliminary injunction, and then it turns out that the entry of those orders was wrong and they get reversed or overturned, the party who was enjoined or was subject to the restraining order can recoup whatever costs they incurred as a result of this. Temporary restraining orders and injunctions, preliminary injunctions, are kind of they're pretrial remedies that a court has really, really strict latitude to enforce. I won't get into the specific, like, four or five factors that a court has to go through, but basically, it's a way for a litigate to show up in court and say, listen, There's ongoing harm that's happening to me that the defendant is doing in one way or another. It's happening right now.

You have to satisfy a number of different factors, and the court will say, listen. Based on what you've shown so far at this very early point in the litigation, I'm going to enjoin the defendant from continuing his whatever they were doing. I'm gonna temporarily put a stop to it. And or if it's a temporary restraining order, it's, you know, we're going to stop whatever else it was they were doing. This comes up in a dozen different areas of law pretty commonly.

Like the idea is, let's preserve the status quo while we figure out what's going on So

like, in my experiences, it comes up quite a bit in like intellectual property litigation, things like that. Like if you're infringing on my trademark, for example, or any of my IP, like, yes, we're going to have a trial on that down the road where we figure out whether you actually did or didn't. And we're going to do discovery on that. And that process is going to take, know, years or whatever. But in the meantime, you're still doing it over those many years, and you could hurt me so badly that my intellectual property becomes worthless by the time we get to trial.

Mhmm. So I'm gonna ask the court to stop you now on a temporary basis and, while we sort this out. And a court can decide to do that or not. So so 65 c, allows the court to require the party seeking the injunction of the TRO to to provide a security, which is in form of a surety bond, is think of it like a mini insurance policy that the bondee, which is the person who is seeking the injunction, has to get, and has to, purchase from a surety company. I'll talk about this process a little bit later.

That basically sets aside a pot of money so that if it turns out that the injunction was incorrectly ordered by the court, the party that was wrongfully enjoined can get back, you know, whatever it is that they lost. So using my intellectual property example, if, you know, a party is, like, selling something that's based on the intellectual property or that's allegedly based on the intellectual property of someone else, they're enjoined from selling those things during the course of litigation. The cost that they would have incurred as a result of that injunction could be calculated as the sales that they lost. Like, weren't allowed to keep selling their thing. Turns out that they were right all along.

So in this process, is it the defendant or the party that's going to be enjoined? Are they the ones that would typically say, you know, judge, we need a surety in this amount? This is what we anticipate our losses would be?

The court sets a actually, you know, we'll just do that part now because I have a kind of a breakdown of how the surety bond process works. And I think it's useful because it's even, you know, people that litigate for a living don't necessarily go through this.

I was gonna say,

I didn't even

know this was part of this.

Yeah. Yeah. Yeah. So like, so like, what I'll start with, like, what are court bonds? You know, what are surety bonds?

They're They're securities that litigants have to provide to the court. I think I mentioned before, you could think of them like a mini insurance policy that you buy to insure against, you know, an outcome where the other side is damaged wrongfully. The litigant has to go to a bond, go get a bond from an approved surety company, they have to apply for the bond. The application process is based on, you know, on a lot of different factors such as the bond amount. The bond amount is set by the court.

So that's the overall money that has to be bonded, which is, you know, again again, can be calculated as, like, what are the damages that the litigant might suffer. In the case of an injunction against the government, which I'll get back to you, but this is really what this new legislation is really all about, I think. The bond amount, must cover the cost of the injunction, if the if it's later reversed, costs of temporarily stopping a national policy such as, like, deportation, something like that. I think and I haven't been down this road myself as a litigator. It's not the type of law I do.

But I think it could, you know, ostensibly involve, like, paying federal law enforcement or, like, airline tickets to, you know, sending folks away to different countries, things like that. I imagine that the costs of that the government could claim they they were entitled to in the event that they were wrongly enjoined could be quite high. Mhmm. But in like traditional like contract cases or IP stuff or whatever, like in the examples I gave earlier, like sales or things of that sort, you know, that those are gonna be up for consideration by the court when it sets the bond amount. So the application so the applicant, which is the plaintiff who wants the injunction, has to apply for the bond, the surety company assesses the the final position sorry, the financial position of the bondee, the applicant.

So like their credit score, liquid assets, and then sets a bond premium that has to be paid by the bondee. So that's the fee that the bondee has to pay to the surety company to provide the bond, which then gets filed with the court. Obviously, the worse your, you know, credit or financial situation, the more expensive the premium for the bond will be just like anything else. That's obviously going to be very relevant in the case of undocumented immigrants challenging immigration orders. Right.

They're probably, you know, we can assume quite poor. The bond gets filed with the court in the event that the TRO or the preliminary injunction is overturned. The defendant and, like, in an immigration matter, that means the government can recoup their costs via the bond. So how much do bonds, like, typically cost for, I would say, you know, my in my experience, and I I looked a little bit, did a little research on this, you know, typically, like, you know, this happens a lot in contract cases or, like, even, like, mechanics lien cases or whatever. It's like somewhere between one to 10% of the total bond and amount.

For extremely poor folks, that's probably going to be either be much higher or they just won't qualify for one. Right? Which means they can't provide a bond to the court, which means they can't get a preliminary injunction or a TRO based on this new legislation.

Oh, okay. So currently, there's probably some provisions that allow for, like, like when you can apply to the court to waive, you know, court costs because you you can show that you don't have the the for them.

And another caveat is that the the courts have latitude to set the bond out, like, at a dollar. Right? They they can say the bonded amount is a dollar here. Got it, okay. So like we're, you know, you don't, you you pay a dollar and you get what you want, right?

Got it. So the court, even under this new legislation, the courts will have that. We'll still be able to say the bond amount is a dollar. Okay. And that discretion of setting the bond amount has not been changed under this new legislation.

However, it is the practice widespread among federal judges to not require bonds in situations where the party that's going to be enjoined is the federal government.

Okay.

So if you're seeking a TRO or to enjoin the federal government from doing something that is unconstitutional or violates your rights, you would You typically are not required to provide a bond to the court. That's the standard practice that is most widespread. There's examples on both sides of it, it's pretty common. Especially, again, in a situation where your constitutional rights are being infringed and a hundred different things you could think of, civil rights cases. And in, know, what we're gonna talk about in a moment, immigration.

Okay. So this new legislation says the judges are still gonna have discretion in setting the bond amount, but they still but they have to absolutely require a bond. There is

Well, the legislation says it's actually it doesn't change the the court's, you know, requirement or discretion, but what it says is it's a little different. It says the court, of the United States federal courts cannot use appropriated funds to enforce a contempt citation for failure to comply with an injunction or TRO if no security was given when the injunction or order was issued. So Okay. I see. What it does is if you got an injunction or a TRO, and you did and you were not required to provide a bond because the court didn't ask you to, at that point, This legislation will strip from the federal judges the ability to enforce the TRO or the injunction through its contempt powers.

Okay.

Yes.

Interesting.

So the court can enforce the TRO and the court can even and this is not even a scenario when, you know, the other side is wrongfully enjoined. They could be rightfully enjoined Right. In this scenario. But the court cannot enforce it, period, if there's no bond. Cannot enforce it via their contempt powers.

And

the really interesting part is the little section at the end here. It says whether issued prior to, on or subsequent to the date of enactment of this subsection prior to. So it's like it's retroactive.

Oh, okay.

Yeah. So of the I'll get back to the

So there so Yeah. Just to for a minute. So just to break down what that means. So there are probably, I don't even know how many judges out there who have Yep. Received TROs Yep.

Because of this situation have not required bonds. And then now, if this new bill is it a bill? Mhmm. If this new bill goes

This is the this is the like like the big beautiful bill

that Okay. The tax part of that.

Okay. Is the the reconciliation bill. This is tax and spending bill. Got it. It's like $6,000,000,000,000 bill or whatever the heck it

is. Right. Right.

Right. The big beautiful bill. Yeah. It and it just it was just passed the House, so it goes to the Senate.

Right. Yeah. Okay. So if this bill gets passed and signed

Yeah.

That means that for all of those cases Yeah. Where before this was even introduced Yes. There's a party that is currently under a TRO Yeah. That defendant who is prevented from doing whatever it is they're gonna do

Yep.

They can do that thing

Yep.

And they there's nothing the judge can do about

it Correct.

Yes. If that judge didn't require it.

If there was no bond required. Yes. Which was which is relatively common practice up until this point.

I mean, it's very confusing. Like, I I didn't get it the first time you read it. And then when we started talking about it, like, now it's coming to me. So I'm It's clever. Sure there are so many people that don't actually understand how this is gonna work.

And I hope those aren't the people that are voting on this because

It's well, that's a great that's a that's an interesting point, because as I was looking into this, there were, you know, debates in the house about this and there were a number of legislators who did not get it. Yeah. They like, no, no. Bill actually just only strips from the federal courts the ability to issue national injunctions, which is a topic that we talked about in our last episode that Yeah. Which I said, by the way, was gonna become Mhmm.

And I'm like, call my shot, you know, was going to become a major issue over the next couple of weeks as circuit courts around the country are enjoining the federal government from doing, I mean, a lot of things, but in in particular, the the deportation that's happening to the El Salvador prison Mhmm. The mega prison, you know, whatever. And so, like, rather than, like, defend that on the merits of, like, this is, you know, legal or it isn't or this particular individual was rightly or wrongly detained, the target now is, well, Circuit Courts shouldn't be allowed to do They should only be allowed to, you know, intervene on behalf of the one individual who has filed that specific lawsuit. They should not be able to join the federal government from doing this entire policy nationwide.

Mhmm.

So that's like the bull's eye that this is seeking in a roundabout way to get at.

Got it.

Because now, you know, all of these district court orders enjoining those practices or enjoining the federal government's activities in that regard, more likely than not, probably did not require a bond. Yeah. And so to your point, who cares what happens next because they can't enforce it via their contempt powers.

That's insane. Mhmm.

So yep. So It's

just like I I feel like every day I'm just like, what is happening? Yeah. Okay. Go. Sorry.

So

let me go back to to the piece I was quoting from earlier.

And by the way, like most often when new legislation gets passed, it's it's not retroactive. Like Yep. That is that is the standard. Like it's only gonna be forward looking because you can't possibly hold somebody, whatever it is, criminal, civil, whatever. You can't hold them responsible for something that wasn't on the books at the time they did what they did.

Mhmm. Because people will obviously, you know, more more often than not act a certain way based on what they know the consequences are. So

Yeah. And like I said, I mean, this can be remedied going forward by federal circuit court judge setting the bond at a dollar. You know?

Sure. Sure.

That still complies with Yeah. Rule 65 c. And that still jives with, like, you know, what's contemplated by this provision that's tucked away in the spending bill. Mhmm. Mhmm.

My producer Kevin just asked whether the court can retroactively require a bond on a TRO that's already been ordered. I have no idea. That's a I mean, that's a good question, but I really don't know. But I would say it wouldn't matter because, like, if this law is passed tomorrow, there's no bond at the at the time that the order was entered. And that's what the

Oh, okay.

That's what the new law says. Yeah. So you cannot enforce this via the court's contempt powers. So so here's kind of to add more meat onto this bone. I'll go I'm quoting back from the piece by professor Erwin Chemerinsky.

Quote, federal courts understandably rarely require that a bond be posted by those who are restraining unconstitutional federal, state, or local government actions. Those seeking such court orders generally do not have the resources to post a bond and insisting on it would immunize unconstitutional government conduct from judicial review. It has always been understood that courts can choose to set the bond at zero. Recent temporary restraining orders and preliminary injunctions illustrate this. For example, federal chief judge James Boesburg issued a temporary restraining order presenting individuals from being flown to maximum security prison in El Salvador without due process and ordered that Judge Boesburg found the federal government willingly disregarded.

Federal Judge Paula Zanis issued orders affirmed by the Supreme Court to have Kilmar, Abrego Garcia brought back from El Salvador since he was taken there, the one country in the world that an immigration judge ruled he could not be removed to without due process and according to a government lawyer by mistake. Federal, courts, including the Supreme Court, have issued orders preventing the Trump administration from using the Alien Enemy Act of 1792 to deport more people to El Salvador without basic due process safeguards. It would make no sense to require the plaintiffs in these suits to pay bonds, to be able to have access to federal courts, unquote. So, yeah, I mean, the the thing that jumps out here is that it's you know, in addition to all of that, which is this is, you know, effectively a tax on people that wanna use the federal courts to protect their their claim constitutional rights Mhmm. Is that it's it's retroactive.

You know, so previous standard court orders, restraining orders, injunctions, in many cases, the judge did not require the litigate to post the security would be invalidated. I'll go back to the piece here. Quote, because federal courts rarely have required plaintiffs to post bonds, it would mean that hundreds and hundreds of court orders in cases ranging from antitrust to protection from private tax information to safeguarding the Social Security Administration to school desegregation to police reform would be rendered unenforceable. Even when the government has been found to violate the constitution, nothing could be done to enforce the injunctions against it. In fact, the greatest effect of adopting the provision would be to make countless existing judicial orders unenforceable.

If enacted, judges will be able to set the bond at $1 so that it can easily be met, but all existing judicial orders where no bond was required would become unenforceable, unquote.

She's like, sitting here mind blown.

Yeah. I mean, and is this going to be what's in the final bill that gets through the senate? I have no idea. Like I said, the the folks in the house did not seem to grasp what this meant. I mean, even, you know, as we sit here reading this, it's you have to think to the second and third order effects of this, which are intentional.

I mean, that's Right. You would not make it retroactive if you didn't intend to invalidate orders that already existed.

And Yeah.

That's the point.

Because, yes. Yeah. Say, again, legislation, if it doesn't say one way or another. It always is assumed not to be retroactive because that's such, like, an extreme position to take.

Yeah. So the piece goes on to talk about, you know, the kind of standard disposition of the Supreme Court, which has historically supported federal courts' contempt powers. And there has been attempts by Congress to limit contempt powers in the past. For example, in 1924, the Supreme Court indicated that it would be unconstitutional for Congress to require courts to hold a jury trial before a party could be held in civil contempt violating a judicial order. That's so the congress was trying to or was in the process of adding a jury trial component onto a civil contempt order, and the supreme court said that would be unconstitutional.

So by the way, for those who don't know, courts have pretty broad contempt powers. Typically, it's to enforce orders. The court enters an order, and if you disobey it, the court can do all kinds of things under their contempt powers from fining you certain amounts to locking you up. I've been in court when someone

has been I thought you were gonna say, I've been locked up.

No. I I've I've been in court when someone else was being threatened with

Really?

Yeah. It's a pretty won't talk Federal?

No. Really?

Local. With someone who you might guess, but I will we're not gonna talk about it on air.

Nah. I may know what you're talking about. Yep.

And but in so far as, you know, like the the folks I mean, if if you've, like, watched, like, judge Judy, there's, like, the, you know, just, the bailiff and he's, like, part of the TV show. Right? But there is that person in real court too. Oh, yeah. And, like, that person

At least one.

Yeah. That person has, like, handcuffs Mhmm. And can slap them on you in court if ordered to do so. You do not get a trial. Like, you don't you don't have limited, like, there's there's limited due process when it comes to contempt Right.

Powers of the court. So it's, you know, in the judge's discretion, did you violate my order? Yes or no. If so, here's the consequences. Right?

That's like it's it's very rare for people to be put in prison for it, of course. But, like, fines and things like that, I mean, I've seen it happen where the court will be like, you're late on X, Y and Z document that needed to be filed. I'm going to fine you $100 a day

Right.

Until it's filed. I mean, that's a sanction thing as well that's a different

But it is because you violated a court order. Mhmm.

So the court will just say

Until you comply. Yep.

So it's usually, like, monetary stuff. Mhmm. It is it's not often that they're, we're putting you in jail for this stuff. But, like, it it is on the table. It's they were able to do that.

Yeah. That has happened. There are instances of that happening. This whole policy of, you know, we're going to try to use the, the bonding requirements of federal rule 65 c, to kind of tamp down challenges to specifically immigration stuff. It's it's shown up in other places from this administration.

Previously, the White House directed the Justice Department to ask the courts to require challenges to postpone when an injunction was issued, which is in their rights to do. Mhmm. That has not been the case, has not been standard practice. But now, if you're, say, an immigrant who doesn't want to be sent to die in a prison in El Salvador, the Justice Department is going to say, I want the court to require a bond under the applicable federal rules.

Sure.

Right. So that is something that was new, but it's, like, broadly within the playbook that already existed. It was uncommon, but it existed. And now Congress just wants to take away the discretion of whether or not, you know, it's going to be required in the federal judge. And, of course, undo all of the orders that were entered without there being a bond, which is, I think, the bigger story.

So this now goes to, you know, senate. Who know? I mean, there's a lot of horse trading that in this process. I mean, I'm not, like, you know, legislative expert. I'm not a legislative attorney.

I have no experience working in government. But, generally, this you know, what goes from the house to the senate, the version that gets passed is can be very different. It was a one vote margin in the House. The Senate, the margin is also very tight, you know, along the bipartisan lines. But, you know, typically senators are a little better informed than your average house representative.

So, like, they may know more about this, especially as people are talking about it. Mhmm. So who knows? I mean and by the way, like, unless you have a list of all orders that were entered where there's no bonds, as we sit here now, we have no idea

How many. Yeah.

What's going to be done by this. So, like, the administration's like, great. We can, like, you know, we can go ahead and put these people in El Salvador and without fearing contempt, you know, from the court. But, like, you have no idea what other Right. You know, government agencies

Mhmm.

Or private actors

Mhmm.

Are operating under a TRO and will wake up tomorrow if this is passed and be like, I don't have to listen to it anymore. Yeah. And, like, so it could be quite chaotic for big companies, for people concerned with civil rights and all sorts of things. It's, I mean, it's interesting. And I like that list of like, you know, if you went to PACER, which is the federal court document filing and management website, and wanted to pull up every preliminary injunction that's been entered in the past, I don't know, ten years, how many do you think there are?

Right.

Thousands?

Yeah.

Yeah. So and then how many of those are still on a temporary basis? Because this doesn't apply to permanent injunctions. Sure.

I don't know. Litigation lasts years and sometimes those injunctions last the whole time.

Yeah. Yeah. So and like then then sort those by how many of those were bonded. So I have no idea what would happen if this actually gets passed. But it's, I mean, it's pretty wide.

It's it's pretty Mhmm. You know, whatever. That's Now

that okay. So now that I'm thinking because I'm like, I know I've been involved in TRO things before where there were sizable assets. Now I remember. And there was a bond required. It was a case involving airplanes and a fight between who owned the airplanes essentially.

Mhmm. But because that's such a movable asset and could, you know, kinda disappear

Yeah.

Or be disassembled or, you know, it's it's different than, you know, a money asset or something, although I guess money can disappear too. But, yeah, there there was an injunction that was entered and I do recall now that our client had to put up a bond for it. Yeah. Yeah.

Yeah. And there's other things too. Mean, you you you get bonds for appeals. You get all sorts of things like that. But, you know, this is a very, like, in the trenches, like, in the fine print tweak to the existing system that could have, you know, pretty dramatic results if it's passed as is.

And politically, it's, you know, it's very likely motivated by immigration policy concerns of the administration. I think the folks responsible for passing it have so much as said so, that it's meant to they say that it's an attempt to tamp down on what they call like frivolous litigation Mhmm. And also to curtail the injunction powers of the circuit courts of the the federal districts. So, yeah, we'll see if this makes it through the senate into the final bill. Even if they removed the post or or even if they removed the, the provision which, you know, makes it apply retroactively, going forward, it's still, I mean, you know.

Yeah. But I'm okay with it. If I would be okay. I I think it's a reasonable

Sure.

Bill if you remove the retroactive. That's the part that I'm like

Well, well, if you remove the retroactive party to accomplish, it's nothing because the court can the court can just have

the bond as a dollar. That's why I'm okay with it.

Right. Yeah. Yeah. But I mean, there's no point to it if it's not retroactive unless unless, you know, people are concerned about the court being able to collect $1. Right.

And then to then

Well, I mean, are and that's that's making an assumption though, right, about the judge. You're not always gonna get judges that are, you know, that are sympathetic to people bringing constitutional type claims. So I mean But we already have the rule in place that would Yeah. So

Yeah. I mean, so it it's just it it would be a weird it's a weird box to open.

I just also I think that more often and I don't know the statistics on this. This is just based on like my assumptions, I guess. So, you know, take it for what it's worth. But I would think that this is gonna affect private citizens and businesses Sure. More than it's ever gonna benefit the government.

Like, think the amount of, like, probably current injunctions and TROs against the government is way less than it is against

It's it's

private citizens and businesses.

Yeah. Certainly. It's going to be like, again, all those things we mentioned, like intellectual property and Mhmm. Business tort and all that stuff. Right.

These things happen all the time. Right. Like I said, people are gonna wake up tomorrow and realize, like, if I violate this court order, there's no possibility of me being held in contempt. Yeah. So why wouldn't I just violate the court order?

Exactly. You know? I mean, you could still get, like, you could still have a negative finding at on the merits at trial. Right? You could still, like, be you know, if you're being sued for, you know, IP.

Yeah. But the damage may be done by then.

Yeah. But you right. Yeah. Exactly. Which is the whole point of TROs and preliminary injunctions is to avoid that.

Mhmm. So, yeah. I mean, it's it's yeah. It it basically I mean, it it would cause like, it could cause absolute mayhem. It's interesting.

I mean, it's one of those things that, like, doesn't really make the headlines, especially regarding the spending bill, everything else that's in there, etcetera. But our little neck of the woods over here.

Yeah. Good find.

Yeah. It's kind of an important one.

So Sneaky.

There. Yeah. So we'll see if it gets passed. We'll see what version of it gets passed. And if there's anything worthwhile to come out of that, we'll let everyone know.

Okay. So this what I'm gonna talk about here, it's become a hot topic in our courts over the past few years. And it's a situation where we really have two different interests at play that that need to be balanced. So one is the presumption that the public has a right to access judicial proceedings, and that includes knowing who the litigants are. But then on the other hand, people may have legitimate reasons for wanting to bring a lawsuit anonymously to prevent further harm to themselves.

Well established, I think what comes to mind most frequently is the protection of minors. So we see cases that are filed using only the minors initials, for example, or they can just simply be named as a Jane Doe or a John Doe. And we've also seen pseudonyms traditionally allowed where people can show that for whatever reason, revealing their identity in the lawsuit is going to subject them to a substantial risk of harm or some sort of retaliation from a third party. But courts have now taken a stance, and this is in recent years, and they've determined that the avoidance of reputational harm or embarrassment is not a compelling enough basis to file under a pseudonym. So in other words, like the public's interest in an open judicial process, that's gonna outweigh a litigant's right to preserve their reputation.

So, this issue is obviously of interest to me because it kind of tears me in two directions. My practice is dedicated both to freedom of the press, so the free flow of reporting on public information, but I also regularly assist clients in reputational preservation. So there have just been times when we've had to counsel clients and we've talked about this in the show as well. You know, you have a valid defamation claim. What was said about you was absolutely not privileged and you were harmed.

But if you file this lawsuit, you need to understand that you're amplifying that false and defamatory message. Mhmm. It's gonna now reach people that it wouldn't have reached otherwise.

Is it the Streisand effect? Is that yeah. Where it's like you familiar with this?

No.

Oh, yeah. It's by talking about the thing you're not supposed to talk about, you are making people more aware of it.

Oh, okay. Well, yeah. So that's exactly it. Yeah. So, yeah.

I mean, it's a hard it's a hard balance and I see definitely both sides of the issue. We don't wanna preclude people from righting wrongs simply because the harm of going through with a civil lawsuit is is too great. But then, you know, putting my defense attorney hat on which I wear more often, it's like, hey, plaintiff, you know, decide how much this case is worth it to you. I guess the idea of having your name on a public filing and then going through discovery on matters that deal specifically with your reputation, you know, that that could prevent a lot of people from filing what would otherwise be meritless lawsuits They just don't wanna open themselves up to that. So the recent decision that just came out of the Seventh Circuit on this issue, it came out in March of twenty twenty five.

It's John Doe versus Mariah Young among others. And mister Doe filed a lawsuit against the University of Illinois or different professors and administrators at that university. So what happened with him is he was investigated and then ultimately dismissed from the school for sexually assaulting another student. His claims are that the university's investigation was discriminatory and violated his right to due process. So he initially filed this motion with his complaint asking to proceed under a pseudonym.

The defendants at the time, so the university officials, they didn't object to it. But then we've had these recent decisions come down in cases similar to this where the Seventh Circuit has said you don't have a right to file under a pseudonym. So once those there are two in particular that came down last year. Once those came out, the university changed its tune and said, you know what? Actually, we do object to proceeding under a pseudonym.

I think probably for the same reasons that I mentioned that, you know, once you kind of take that mask off, it it may change things for you. You may not wanna continue with this lawsuit Yeah. For example. So John Doe, when he was a student at the university, he and I I didn't look up the specific facts, so I'm just kind of going off of the summary. I think probably the specific facts are important because it seems a little a little weird how they're describing it.

But he and a fellow student whose name just happens to be Jane Roe. Okay. Or maybe that's what they're I think that has to be what they're applying to her. They're not saying that's a pseudonym, but I have to imagine it is. They're not calling her a Doe because she's not a party to the case.

So they're saying Roe. Mhmm. Okay. So miss Roe, she had filed a complaint under Title IX with the Office of Student Conflict Resolution accusing John Doe of unwanted touching while the two were visiting Nashville. Now, say that like with a question mark and I wonder what the real facts were because I don't understand how that ties to the university.

Yeah. Would seem you know what I mean? If if there was some unwanted touching that occurred, you would think that'd be just be a criminal matter. I'm not sure how the

All touching in Nashville is unwanted.

I'm sorry.

If you've ever been.

Valid point. But for whatever reason, she brought it to the university and and they investigated it and found Doe to be culpable, charged him with sexual assault as well as drug manufacturing, sale and distribution because apparently Doe and Rowe ingested molly during this whole incident. So Doe appealed. He was denied and then, as I mentioned, was dismissed from the school. So he claims that the university, subjected him to race, gender, and disability based discrimination.

He has a visual impairment and a learning disability and failed to give him the due process that he deserved. He also brought a breach of contract action, which I thought was interesting. Doe represents himself as a black man. He represents Ms. Rowe as a white woman.

And he is claiming that by filing this lawsuit and discussing the details of their interactions, that creates a risk of substantial harm to him because, according to him, interracial sexual relationships between white women and black men are the subject of heightened prejudice and violent responses that create a tangible risk of retaliation and animus against him. That's a quote from the Seventh Circuit decision. He, of course I mean, there's a plethora of of things from our history, including case law, actually, as recent as 2022, that notes that, yes, this this prejudice exists. There's a history of It is it is a prevalent issue and something that courts take seriously. However, our district court, our Central District Of Illinois, as well as the Seventh Circuit found that Doe did not contact excuse me, connect his current circumstances to this these historic injustices.

So, yes, we recognize that historically this has been an issue, but you have not shown us, mister Doe, how you personally are subject to, you know, harm or the likelihood of harm by revealing your identity in this case. They the court cited to a Seventh Circuit decision where the litigant who filed as a Doe did meet that because they showed that they personally had been subject to to hate crimes and violence because of their religion. So in going forward with a religious based claim, they wanted to protect their identity and the court was like, yeah, that makes sense here. But for mister Doe, he did not meet that threshold.

I see. So it's not connected to his inner the claims that he's bringing are not sufficiently connected to his interracial marriage such that that could be the reason for his anonymity with respect to this claim.

Right. He hasn't Yeah. So the court and the court went so far as to welcome comment from Ms. Roe and said, you know, we wanna hear from you. If, mister Doe's identity is revealed, does that, make it more likely that you are gonna be found out?

That you're gonna be identified as the sexual assault victim? And she wrote to the court and said, I have no concerns about that.

Shouldn't have done that if that's

Well, I think that obviously worked against him because the court goes to great lengths to to protect sexual assault victims especially if they're not a party to a litigation. So I think if she had legitimate concerns, then probably the court would have allowed it. But so yeah. Anyways, this his his petition got got overturned and the court reversed his right to file as a doe. The seventh circuit sent it back down to the district court and said, he can proceed with his case but he needs to reveal his identity.

Right. So To the public by the way.

To the public needs to refile his complaint with his real name Yeah. Essentially.

The the one thing just because I mean I don't I'm not in this area of law, but I I I know this but the the audience like may not. The and this is not a situation where the identity of the claimant is withheld from the defendant or from the court. Correct. So the the court and the defendant both know who this person is. It's a situation where the name is withheld from the public filing.

So it's, you know, it's not as though you're being sued by someone that and you're not being told who you're being sued by.

Right.

So yeah. Just point of clarity.

Yeah. Exactly. And if there were, if there was anything that was gonna be filed with the court that had his name in it, that would be redacted. It's essentially just

Not like an anonymous lawsuit.

Right. Right. Yep. So this case goes back down to the district court and I had to look up the pacer just to see what was going on. So on April 22, the district judge entered an order saying, John Doe, you have until May 5 to reveal your name.

Otherwise, your case will be dismissed. That deadline came and went. May 6, the judge gave him one final chance, you know, reveal yourself. Or by May 12, this case will be dismissed. Again, nothing.

So on May 14, a dismissal was entered without prejudice, for failure to follow the Seventh Circuit order.

Okay.

So he could still decide to refile his case under his own name.

Within the statute.

Yep. But I think that's, you know, that's interesting. So, you know, he he now that he can't have this shield is not gonna pursue his case.

Right.

Which, you know, I don't know the background facts. I don't know, you know, if that should be a judgment about the merits of the case or not, but it is just Or

it proves his point, which is Yeah. I I'm too worried about the consequences of this that I've I've decided against pursuing my rights under the lawsuit.

Exactly.

Yeah. Or like you said, it could be it could show that the case is not very Yeah.

Yeah. We can't we can't really say one way or another. But so this, this issue definitely, is something I've dealt with in my practice and, I can't get into, you know, the details of cases. But just one example of how how rulings like this can affect people, and why I don't think it should be a blanket rule that, you know, you can only file under a pseudonym if you're a minor, a sexual assault victim, or, you know, some other category. We had a a defamation case where this person's life was, like, destroyed.

I mean, destroyed by this other person. They put out fake Instagram accounts, fake LinkedIns, you know, sent messages. Were Yes. Like accusing him of crimes, you know, sending what would be, you know, considered private pictures and videos to like his bosses and just I mean like this went on for years and finally got to the point where the person had enough and wanted to file a lawsuit which included, a defamation claim. And but, you know, as much as all like hit all of his immediate community and, you know, to the extent some of his extended community was affected by this, it doesn't mean that the whole world knew about it, you know.

And so to his point, was there are people who have never seen these accounts, who would never know about this, who would never see these pictures of me unless I file this lawsuit. Mhmm. And so we went, you know, with a with a John Doe And it's like, all was good until out of nowhere, a professor intervened in the case and took a position that under the First Amendment, he had a right to know who John Doe was. This was someone who lives thousands of miles away, had absolutely no, you know, nothing to gain from the case. But then I started looking into it and this this happens across the country where people seemingly having no interest in in a case will intervene.

Nothing better to do.

I I'm just like, what yeah. Like, what are you gaining from this? You know, like, let the defendant make the argument that that someone shouldn't, you know, proceed under a Jane Doe or a John Doe. But it happens and, you know, again, I'm a defender of the First Amendment but sometimes it's like, stay in your lane a little bit. So yeah.

Interesting and I guess it just like serves as kind of another warning. Like you really gotta think about what's at play if you're gonna file a lawsuit and you can't just assume that your, you know, your right to proceed under a pseudonym is gonna be upheld.

Right.

You gotta think like judges understand the importance of keeping their record open to the public. So if they do, under the rare circumstances, allow for something to be sealed or allow for someone to proceed anonymously, then, you know, that's a well thought out decision. But, yeah. I don't know. If you have if you have time on your hands and wanna just start scouring for Jane Doe and John Doe's and intervene, then, you know, have at it.

Yeah. I and the particular individuals that are doing this, I mean, it's it's not like easy or cheap even to like intervene in a federal lawsuit in a well different, you know Yeah. Jurisdiction or whatever. Right. So they're motivated people.

For sure.

That's fascinating.

Mhmm.

Alright. Thanks, everyone. That's the show. As a reminder, you can hear us, every two weeks on Apple Podcasts, Spotify, YouTube, wherever you get your podcasts. Otherwise, we will talk to you soon.