Volokh Meets The Tropes

A decade ago, I could imagine Ken White writing a post at Popehat about taint snorting. Maybe Techdirt’s Tim Cushing, if not Mike Masnick, extolling the virtues of anti-SLAPP legislation. But that was before a litany of sacred cows arose, seizing people’s consciousness and turning the most basic reality into a minefield of women whose narratives trump accuracy.

Eugene Volokh wrote a law review article and a post at VC naming a person who sought to prosecute her claims pseudonymously. But as it turned out, she was a vexatious litigant and the court pulled the plug on her.

Several months ago, I wrote about a frequent litigant, in connection with a federal case of hers in in which (1) she was first allowed to proceed pseudonymously but then (2) was depseudonymized by the judge after evidence related to her past cases had emerged. I used her name in connection with that case, as the judge had, and also drew connections (based on public records) between that case and other cases that she had been litigating pseudonymously.

Agree or not, the use of pseudonymous litigation has been one of Eugene’s scholarly issues, and he’s focused on it regularly of late. This was a matter of significant interest in the course of his argument, and he used it to argue his case. The “frequent litigant” was not happy about it.

Several weeks ago, the litigant filed Doe v. Volokh, No. 22STRO05198 (L.A. Superior Ct.), a petition for a “harassment restraining order” in California court.

The allegations made by this “frequent litigant” against Eugene raise facile tropes that have become pervasive, overarching and unchallengeable to many who believe they are the arbiters of polite society.

On July 11, 2022 I received two harassing phone calls from different people, calling me cunt, bitch, slut, lying on men etc and indicating they would rape and kill me.

I was terrifying and fearful for my life. Later I figured that Eugene Volokh (Volokh) has published my personal information online and the death threats came from his readers/haters.

He states that I was convicted of several crimes but he leaves out the fact that I am currently seeking post-conviction relief due to wrongful conviction.

I previously received several court orders to protect my real name as a rape victim.

Further, he alleges that I had made similar rape accusations against other people which again portrays me in a false light.

On July 12, 2022 I made contact with Volokh and asked him to respect the court orders and my privacy and take remedial action. He refused to do so even after I informed him of the death threats I received.

According to Eugene, the only “personal information” posted about her was her name. Here, you have a person who seeks to compel Eugene to remove her identify because she declared herself a “rape victim,” whose convictions are unmentionable because she’s seeking post-conviction relief, who obtained court orders to “protect her real name as a rape victim” and who claims to have received telephone calls from Eugene’s “readers/haters” to rape and kill her. And Eugene callously refused to “respect court orders” despite her receiving death threats.

Eugene doesn’t quite say it, but then he’s more polite than I am. It’s ridiculous to believe that any reader of Volokh Conspiracy would call and threaten her and this stinks of an outright fabrication. If it happened, far more than her claim would be needed to prove it. As for the rest of her claims, she throws a series of victim tropes against the wall to see if one sticks, all facile to claim and which have become a suit of armor against anyone who would even consider questioning whether she was “terrifying and fearful” for her life.

Ultimately, she alleges that what Eugene has done by using her name after it was “depseudonymized” by the court in a matter of significant scholarly interest was harassment. Eugene was harassing her.

Eugene responded with an anti-SLAPP motion, and with Ken’s “sage counsel,” the court ruled in his favor.

A decade ago, this sort of conduct would have given rise to a hundred blawg posts, everyone condemning the vexatious litigant’s effort to silence Eugene and cleanse the internet of her name so no one knew what shenanigans she was pulling. As for the tropes raised, rape victim, name calling, rape threats, death threats, terrifying, etc., these claims would have been ripped to shreds as baseless lies thrown into the wild. But that was then. Now is not then.

My take on this is:

1.) You had a legal right to use her name.


2.) Shouldn’t have used her name as a matter of politeness.

It may be true and is likely true that none of the abuse she received came as a result of publishing this information. But it also seems as though she may have experienced real fear and discomfort as a result of the publication, to the extent that it has disrupted her life. That may be due to her own illogical or incorrect thinking, but (giving her the benefit of the doubt that she is telling the truth) I don’t see any benefit to causing a person unnecessary distress.

This commenter wasn’t so much being critical of Eugene for having named the litigant as putting the concern for her “unnecessary distress,” even if false, first. As a matter of “politeness,” her feelings come first. Another commenter was not so thoughtful.

So this woman contacts you and asks you to stop writing about her, and to remove your prior writings about her. You respond that you have a legal right to to write about her. She files suit against you, you prevail, and then you write about the whole affair, thus adding to your public writings on the woman who initially sought to have you not write about her.

You’re such a classy person.

There was a time when the question of this person’s being named by Eugene wouldn’t have mattered, as Masnick’s Streisand Effect would have put her name everywhere, How dare a vexatious litigant try to conceal her identity by going after a law prof, a blogger, Eugene Volokh. Today, not even Eugene will mention her name in his post, although he asserts his right to do so. And still some of his readers chastise Eugene for being insufficiently concerned about her feelings.

Well, I think that you can address the problem and even refer to this exact case without naming the specific person.

If you are concerned that she is a vexatious litigant, I think it would be reasonable to inform someone that is going up against her in litigation so that she can be declared a vexatious litigant.

Eugene explains why this wouldn’t be viable, but that really isn’t the point. Claim victimhood and distress and that’s good enough to demand that her feelings prevail.

8 thoughts on “Volokh Meets The Tropes

  1. Turk

    The comment by Eugene at 12:21 am today, a decision by a judge in one of her other cases sanctioning her….wow.

    1. Miles

      Wow?!? The only thing that would make this more “wow” would be if you mentioned why she was sanctioned and why this was a “wow.”

  2. Jeff Davidson

    I agree with your post with one small quibble. Some of the current VC commentariat is pretty unhinged. I can see the possibility, although small, that one of them would contact the litigant. The quality of the commenters has steadily declined over the years and through the various moves from an independent blog to WaPo and now to Reason.

    1. Gdanning

      I want to second that. The difference in quality between the content on the VC and the comments has got to be a world record, and there is one regular commentor who is clearly mentally ill.

  3. Mark L

    After they shut down *chan and Kiwi Farms, those seeking the Lulz had to get creative. Perhaps they’ve chosen VC as their next home.

  4. MarkHu

    Things on the interwebs never ever go away, and if a large platform associates someone with “a thing” that person will forever be associated with “the thing”, whatever it is. I would weigh associating that person with “the thing” for eternity at the very least with the value of adding the name to whatever piece. I couldn’t find the actual piece so no opinion on this specific case.

    Where i live names in criminal cases are anonymised in the hope that people can be more than their worst day when they have paid their price. I like it that way.

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