The Volokh Conspiracy

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Free Speech

Political Candidate Can't Sue Critics Pseudonymously, Under Seal, with Gag Order

"Plaintiff is an adult who chose to enter the political arena and now to file this litigation, asserting claims against Defendant as a result of Defendant's alleged statements and activities concerning Plaintiff and Plaintiff's political campaign."


From Russe v. Harman, decided Oct. 29 by Judge W. Carleton Metcalf (W.D.N.C.) (to see Russe's argument, see here):

[1.] Plaintiff [Rupa Vickers Russe] alleges that in July 2020 she "gained the Madison County Democratic Party nomination for, and ran for public office" seeking a seat on the Madison County Board of Commissioners. [Russe got 17% of the vote. -EV] She further alleges that in October and November 2020, she became aware that Defendant Cindie Harman … had published false statements about Plaintiff on Defendant's public website…. Plaintiff asserts claims for libel , unfair and deceptive trade practices, and intentional infliction of emotional distress….

[2.] Plaintiff requests that the court "issue a protective order to completely seal this lawsuit, issue a protective Gag Order for all participants and Attorneys in this matter, and for this case to proceed under anonymity … until after a final decision has been rendered by this court."

In support of this request, Plaintiff states that Defendant has a history of engaging in extreme and outrageous conduct and that Defendant has engaged in numerous improper acts and made numerous improper and false statements about Plaintiff. Plaintiff states that while she "is not concerned with criticism or annoyance, she is exclusively concerned with the injury she, her business, or clients may suffer if [her] motion is denied."

She further contends that this case constitutes "a unique sensitive private dispute about which the public will gain no benefit in being able to participate while the adjudication of this matter takes place, but [that] great harm to Plaintiff, her business and her innocent non-party clients could occur if the adjudication occurs under the unnecessary public spectacle that Defendant is likely to bring to this proceeding."

Plaintiff further states that she "reasonably fears she will experience violence, harassment, humiliation or threats by Defendant or by one of the Defendant's supporters…." …

[3.] "[T]here is a presumption under applicable common law and the First Amendment that materials filed in this Court will be filed unsealed." The Motion to Seal discusses Plaintiff's interest in protecting her safety and reputation. However, the public's interest in this litigation is also significant, given that Plaintiff's claims concern statements allegedly made by Defendant about Plaintiff and in opposition to Plaintiff's political candidacy.

Further, Plaintiff's request for sealing is not narrowly tailored but instead seeks the sealing of the entire case. That is, Plaintiff is asking for this litigation to be conducted entirely in secret, with no information being available to the public. The undersigned does not find that sealing on such a sweeping scale is warranted….

[4.] "Even among First Amendment claims, gag orders warrant a most rigorous form of review because they rest at the intersection of two disfavored forms of expressive limitations: prior restraints and content-based restrictions." …

Here, Plaintiff proposes that the following "gag order" be entered:

"IT IS HEREBY ORDERED ADJUDGED AND DECREED that both Defendant and Plaintiff shall be enjoined from making or causing to be made any statements about the other party, party's business or about this lawsuit, or Attorneys representing clients in this matter, on any website, social media platform, chat-group, physical sign or through electronic or paper written message to any third-parties, including news organizations."

Plaintiff's request is deficient for a number of reasons. First, Plaintiff fails to explain how the requested order would be an appropriate limitation on Defendant's First Amendment rights. This point is underscored by the fact that the underlying dispute involves alleged speech about Plaintiff in the context of a political campaign.

Second, the need for such an order is not apparent on the current record. Plaintiff has initiated litigation and has alleged wrongful conduct by Defendant, who will have an opportunity to respond to Plaintiff's allegations in an orderly manner within the confines of the judicial process. The undersigned is not persuaded that, based on the current record, it should immediately be presumed that Defendant or others who may oppose Plaintiff's political views will engage in the type of conduct that Plaintiff fears.

Third, the proposed order is not narrowly tailored …. By way of example, Plaintiff's proposed order prohibiting a party from making "any statements about the other party, party's business or about this lawsuit" would prevent not only speech that Plaintiff may find harassing, but also speech that is factually correct, routine, and unremarkable.

[5.] Though Plaintiff has filed suit in her own name, she requests leave for "this case to proceed under anonymity" …. [But t]hough all litigants have a legitimate interest in their own physical and mental safety, some amount of criticism and annoyance often attends the litigation process. Plaintiff is an adult who chose to enter the political arena and now to file this litigation, asserting claims against Defendant as a result of Defendant's alleged statements and activities concerning Plaintiff and Plaintiff's political campaign.

The substantive claims (see the Complaint) can go forward; it's possible that some of the allegations against Russe are indeed libelous, and she's entitled to recover damages for them (in a normal, publicly accessible proceeding). At least some of the allegations, though, seem like clear losers, e.g., the libel claim over the statement that "The Rupa's of this world are our enemies, or this part of the intentional infliction of emotional distress claim:

[52.] Upon information and belief, Defendant paid for and distributed at polling stations around Madison County and along roadways signs that read "Don't Get Duped By Rupe" intentionally castigating Plaintiff as a con-woman in both her candidacy and in her licensed profession, and specified these signs were about Plaintiff on Defendant's public website with the statements:

[a.] "My beautiful "Don't Get Duped By Rupa Signs";

[b.] "Don't Get Duped by Rupa. Let me know if you need one of my signs"

[53.] Upon information and belief, that Defendant's outrageous conduct was intended to cause severe emotional distress based on Defendant's public statements on her website which indicate a plan to attack, embarrass and harass Plaintiff through extreme and outrageous statements and actions, including Defendant's printing of and distribution of her "Don't Get Duped by Rupe" signs,

[a.] "I will tell you one thing if you Democrats tomo1rnw vote to put this train wreck on the rail to be on the November ballot. I will go to every County listed below and research the background for all these litigations" and

[b.] "Boo Hoo poor Pimple Child Popper-Rupa Russe complaining she is being bullied-Honey, if you can't take the heat, get out of the kitchen. Because it is going to get hotter… " [The child-popping appears to refer to Russe's being arrested with regard to an interaction with her 16-year-old daughter, which Russe alludes to here. -EV]

"Plan to attack, embarrass and harass"? Welcome to election campaigns. Likewise, here's part of the plaintiff's motion to seal:

And the offending sign ("a sign of Defendant's depravity"), from Exhibit 2: