Injunction Against Publicly Identifying Pseudonymous Litigants Is Content-Based Prior Restraint,

Today’s decision by Fourth Circuit Judge Julius Richardson, joined by Chief Judge Albert Diaz, in Doe v. Mast involved a gag order on defendants: The order barred the defendants from “disclosing any information that directly or indirectly identifies Plaintiffs or their family members to any person … unless that person first executes a non-disclosure agreement.”

The court ultimately upheld the order, because of national security concerns that are only very rarely present in such pseudonymous claims (see this post for more, including more on the factual background). But in the process, the court held three things that will be significant in many more cases.

1. Such gag orders are content-based prior restraints on speech:

“Content-based restrictions target ‘particular speech because of the topic discussed or the idea or message expressed.’” Distinctions drawn “based on the message a speaker conveys,” whether they regulate speech “by particular subject matter” or “by its function or purpose,” are facially content based and presumptively unconstitutional….

[A]n order prohibiting “any extrajudicial statement … to any person or persons associated with any public communications media … relating to the trial, the parties or issues in th[e] case which could interfere with a fair trial or prejudice any plaintiff, the defendant, or the administration of justice” constituted a content-based restriction…. [I]n a similar way, the protective order at issue here is a content-based restriction on speech, because it facially singles out and restricts the Masts’ ability to speak extrajudicially “to any person” if their message functions to “directly or indirectly” reveal the Does’ or their family members’ identities.

As the order prohibits speech before it is expressed, it is also a prior restraint. {Even though the threatened sanction is not imposed until after the speech has occurred, practically, the protective order operates as an immediate restraint on the Masts’ speech.} “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” “[C]ourt orders that actually forbid speech activities are classic examples of prior restraints.”

2. Though courts have broad authority to limit the dissemination of what litigants learn through coercive court-ordered discovery, that authority can’t justify restricting litigants from saying what they learned independently:

[T]he order does not merely restrict the dissemination of information obtained through court-sanctioned discovery; it prevents the Masts from sharing information learned independently of this litigation. That distinction matters.

In Seattle Times Co. v. Rhinehart (1984), the Supreme Court held that an order limiting dissemination of information gained through discovery “is not the kind of classic prior restraint that requires exacting First Amendment scrutiny,” because the restricted party would never have possessed that information if not for the court’s coercion-backed processes. But “injunctions against parties revealing information that they already knew before filing the case” are classic prior restraints. Here, the Masts knew the Does’ true identities before this lawsuit was filed, so this knowledge was not “gained through the pretrial discovery process.” … So Seattle Times‘s more deferential “good cause” standard does not apply.

3. A court’s power to let litigants proceed pseudonymously in court doesn’t necessarily imply a power to gag their adversaries outside court:

The district court’s attempt to distinguish the order from a prior restraint by characterizing it as a necessary “corollary” to enforce the pseudonym order conflates two distinct inquiries, each designed to protect different rights….

[The test for when parties can proceed pseudonymously] balances a plaintiff’s privacy interests against the public’s right of access to judicial proceedings and a defendant’s right to fair process. It is not—and was never intended to be—a test for justifying a prior restraint on a party’s distinct First Amendment right to free speech outside the courthouse…. [The] test determines whether a plaintiff can shield their identity in the litigation; it does not grant the court license to censor the defendant’s right to speak about that identity in the public sphere.

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