The Volokh Conspiracy
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From Judge John A. Woodcock, Jr.'s opinion Monday in Flanders v. Maine / Flanders v. Mass Resistance, 2019 WL 2929500 (D. Me.):
A plaintiff in several cases in this court, which include two petitions for writs of habeas corpus and an action for libel, slander, and assault, moves the Court to seal these cases from public access, or in the alternative, order that all references by which he could be identified be redacted from the opinions in each case. The Court denies the motion insofar as it requests that the entire court file be sealed and dismisses the motion without prejudice insofar as it requests that personal information be redacted.
Adam Flanders requests that the Court "remove from publication in their entirety or otherwise seal[ ] from public access" opinions in the following federal cases, or the cases in their entirety: Flanders v. Mass Resistance, No. 1:12-cv-00262-JAW; Flanders v. State of Maine, No. 2:12-cv-00277-JAW; Flanders v. State of Maine, No. 2:12-CV-00278-JAW. In the alternative, Mr. Flanders requests that "all personal identifiable information be redacted from these opinions, including but not limited to my name, address, telephone number, and state identifiers, and that the Court prevent search engines from indexing these opinions."
[Here are the opinions in Flanders v. Mass Resistance and the two Flanders v. State cases; the Flanders v. Mass Resistance opinion provides a good deal more backstory on the dispute between the two parties. -EV]
As the basis for his motion, Mr. Flanders states that "there are several hate groups targeting me, publishing my personal information and encouraging others to stalk and harass me …. They use these government website publications to locate me and further target my family and I." He says that he has received "hateful emails [and] death threats" and that these groups contacted his employer, resulting in termination of his employment. Mr. Flanders contends that "the safety and private of my family and I outweighs any public interest in these District Court cases.
A. Flanders v. Mass Resistance, No. 1-12-cv-0062-JAW
The first case Mr. Flanders seeks to have sealed, removed, or redacted, is a diversity suit he brought "over allegedly defamatory statements published by Brian Camenker following Mr. Flanders' dissemination of a tell-all letter in 2007 exposing the questionable activities of a Rockland, Maine based homosexual youth group[ ]", which the Court dismissed as "the allegations in Mr. Flanders' Complaint are legally insufficient … and Mr. Flanders' additional filings … lack merit."
B. Flanders v. State of Maine, No. 2-12-cv-0277-JAW and Flanders v. State of Maine, No. 2:12-cv-00278-JAW
Mr. Flanders also requests that the Court seal, remove from publication, or redact his two petitions for habeas corpus challenging the validity of multiple state of Maine convictions …. The first petition challenges Mr. Flanders' August 27, 2008 convictions in Knox County Superior Court for Sexual Abuse of a Minor, and for a probation violation in the same case. Flanders v. State of Maine, No. 2-212-cv-278. The second petition challenges a number of Mr. Flanders' state of Maine convictions in Knox County Superior Court for Aggravated Assault Class B, Criminal Threatening Class C, Violation of a Protective Order Class D, and Violation of Conditions of Release Class E. The Court denied and dismissed both petitions.
"[T]here is a strong common law presumption favoring public access to judicial proceedings and records." That presumption is "rooted in a desire to allow the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system." … In civil cases, "the plaintiff instigates the action, and, except in the most exceptional cases, must be prepared to proceed on the public record."
Once the presumption of public access attaches, it remains possible for a court to seal a document…. However, before sealing a judicial document, the First Circuit mandates that the court issue "particularized findings," and that where some portions of a document may be sealed, "redaction remains a viable tool for separating this information from that which is necessary to the public's appreciation of [the court's order]." In this District, to "obtain an order allowing one or more documents or pleadings to be sealed, a party [must] electronically file … a motion to seal together with the separate document(s) or pleading(s) sought to be sealed." D. ME. LOC. R. 7A. The motion must also "propose specific findings as to the need for sealing and the duration the document(s) should be sealed …." "In making specific findings as to the need for sealing and the duration the document(s) shall be sealed, the Court may incorporate by reference the proposed findings in the motion to seal."
1. Request to Seal Cases in their Entirety
First, Mr. Flanders' request to seal his three civil cases in its entirety does not comport with Local Rule 7A. Mr. Flanders has not "proposed specific findings as to the need for sealing and the duration the document(s) should be sealed." Second, Mr. Flanders' motion does not provide a sufficient basis for sealing the records of each case in its entirety. Mr. Flanders contends that "the safety and privacy of my family and I outweighs any public interest in these District Court cases," and notes that the opinions are "non-precedential" criminal appeals of state convictions over ten years old. Mr. Flanders does not address why redaction of personal identifiers in these cases would not sufficiently protect the safety and privacy of himself and his family.
Two of the cases Mr. Flanders moves to seal are actions brought by Mr. Flanders challenging the validity of his state of Maine criminal convictions. The convictions themselves are matters of the public record of the state of Maine.
Although the Court takes seriously any threats to Mr. Flanders or his family may have endured, Mr. Flanders has not demonstrated a sufficiently compelling reason to override the common law right of public access to two criminal appellate cases in their entirety. When Mr. Flanders himself instigated these three civil actions in public court, he had to be prepared to proceed on the public record and he has not shown an "exceptional case" which would rebut the presumption of public access….
2. Request to Redact Personal Identifiers
Mr. Flanders requests, in the alternative, that "the Court [ ] order that all personally identifiable information be redacted from these opinions, including but not limited to my name, address, telephone number and state identifiers, and that the Court prevent search engines from indexing these opinions." …
Federal Rule of Civil Procedure 5.2 governs privacy protections for filings made with the court. The Rule allows the redaction of a "filing with the court that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number." The redaction requirement does not apply to "the official record of a state-court proceeding," or to "a pro se filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255." The Rule also provides that "[a] person waives the protection of Rule 5.2(A) as to the person's own information by filing it without redaction and not under seal."
First, Mr. Flanders failed to comply with the requirements of the local rules because he filed the motions without proposed redactions. Second, because he filed his motions without redaction, he waived the protection of Rule 5.2(A) as to his own information.
Third, at first glance, the Court's opinions in these cases do not contain any personal identifiers as that term is legally defined. The Court's opinions mention Mr. Flanders' name and the docket numbers and state courts in which he was convicted, but those identifiers are not usually redactable except in unusual circumstances not present here….
In contrast, the exhibits filed along with Mr. Flanders' Motion for Order of Removal of Personally Identifiable Information, which he did not file under seal, includes personal identifiers. The Court finds that by filing the instant motion not under seal, Mr. Flanders waived the protection afforded under Rule 5.2(a) as to personal identifiers included in his motion for order of removal of personally identifiable information….
If Mr. Flanders seeks to file a redacted version of any of his court filings in the above cases in accordance with Federal Rule of Civil Procedure 5.2(a), he may do so, but in doing so, he must comply with the District's local rules.
In 2017 and 2018, Adam Flanders had also asked Google to deindex various posts sharply criticizing him on the Mass Resistance site and related sites (e.g., this LifeSiteNews item), as well as various documents from his earlier cases that were archived on the Mass Resistance site, see here, here, and here. He attached a Maine restraining order that he had obtained against Brian Camenker (the founder of Mass Resistance), which barred "harassing" of Flanders and "direct or indirect contact" with Flanders, and which was based on this complaint. As best I can tell, Google didn't act on the deindexing requests.
When I asked Flanders about the first of his deindexing requests, back in 2017, he responded cordially and in some detail. He first argued that some of the materials he was trying to deindex included "personally identifying information," such as an "image of [his] signature [that] exists within some of the documents," "[his] driver's license number, home addresses, phone number, and other personal information," and "a police photo of [him] that includes an image of a hospital intake bracelet. Depending on the resolution of the image published, some of the information on that bracelet can be deciphered." He added that "he realize[d] some of this information is a matter of public record," and that some of it "is contained in official court documents."
He went on to make the following argument; I pass this along just to set forth his views, and not because I agree with any of this as a factual or a normative matter:
My primary concern when I sought the Protection from Harassment Order is (and continues to be) my safety and the safety of my family. [The author of some of the material] engaged in a continuing course of conduct over the course of months and years that was not only intended to defame me and promote the political and financial interests of … Mass Resistance, which is recognized as a hate group by the Southern Poverty Law Center.
I strongly believe [these] publications were intended to stir vigilante elements in our society to take action, including violent action, against me…. [A] number of publications, … make false allegations about me molesting young children, suggesting collusion with law enforcement, and encourage the public to "fight back" against people like me. [They] provide my personal information and address alongside these allegations and what can only be interpreted as a call to arms.
This caused me a great deal of distress and I received a number of emails from people in response to [the] publications. Some of these were positive while others were threatening. There were also copycat publications by other organizations, including another hate group, Americans for Truth About Homosexuality. Public comments on some of these publications included violent threats against me, such as how I should be murdered….
The Order does not directly command the removal of the information, however it does command the removal indirectly. The order found that Mr. Camenker committed harassment with his publications (refer to the attached complaint). Specifically, the order commands Mr. Camenker to cease harassment against me. Harassment includes Stalking, which the Maine Revised Statutes Title 17-A §210-A(2)(A) extends to include "communicates to or about a person" (provided that communication causes emotional distress and so on).
Please don't misunderstand. I support free speech, but, as I'm sure you are aware, the purpose of free speech, as framed in our Constitution, is primarily for the protection of private citizens against government oppression. I am not a representative of the government nor have I ever worked for the government. I am a private citizen. There are inherent limits to free speech and even the founders of our nation recognized abuses, some of which are recognized today as fighting words and incitement to criminal action. I doubt most Americans, yourself included, support completely unrestricted speech. Unrestricted free speech would make legal threats of violence, the dissemination of confidential medical information, and publication of child pornography, among other things. There are no doubt very good reasons for limits on free speech, and restraining orders are just one tool that private citizens have to protect themselves.
I support anyone's right to publish their opinions about a topic, including opposition to homosexuality, but targeting a private citizen and repeatedly making false claims about that individual, alongside that individual's home address and a call to vigilante action against that individual, is not protected speech. I would also argue it lacks value as free speech, but for the purposes of the Protection from Harassment Order, my argument was limited to my safety. Belfast District Court agreed that Mr. Camenker's publications constitute harassment under Maine law….
The conditions for which the order was granted still exist today and so I could, in theory, pursue another order. Federal laws regarding Stalking, specifically 18 USC § 2261A(2), also arguably prohibit Mr. Camenker's actions (see U.S. v. Osinger, 9th Circuit, 2014). As you may or may not know, I pursued a federal defamation lawsuit against Mr. Camenker. Although the lawsuit itself was unsuccessful, to my knowledge Mr. Camenker and his associates never created any further publications following that lawsuit. A number of other copycat publications have removed their publications about me following the Protection from Harassment Order, lawsuits, and DMCA complaints.
The ability to find information about Mr. Camenker's harassing publications about me depend in part upon search engines such as Google. It is my hope that US law will eventually embrace the European "Right to Be Forgotten" model. In light of recent state laws regarding harassment, cyberbullying, and "revenge porn," as well as efforts at the federal level, I am optimistic that we are headed in that general direction. I believe that victims of harassment such as myself, will soon have more tools to protect ourselves and our privacy.