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Gag Order Bans Political Tweeter from Naming Man Who Accused American Conservative Union President of Groping
Plaintiff, a Republican political operative, had sued the ACU president for allegedly groping him:
In his time involved with the Republican Party, plaintiff "has served political campaigns and political committees as a field coordinator, field director, grassroots director, and political director, among others." While working for one of these campaigns as a political staffer, plaintiff alleges that, "[o]n October 19, 2022, a high-profile person in conservative and Republican Party politics committed a sexual battery upon [him] in Georgia." This sexual battery incident became more public on January 6, 2023, when the Daily Beast ran an article detailing the sexual battery incident, without naming plaintiff, and "[o]ther media outlets picked up the story, and the incident became widely known" [link -EV]. Although the Daily Beast and the other media outlets did not identify plaintiff's name as the victim, plaintiff asserts that "many in the political and journalism communities were aware of his identity."
Caroline Wren, herself a Republican political operative,
was aware of plaintiff's identity and began attacking plaintiff on Twitter in the wake of the Daily Beast story. Specifically, defendant allegedly made false statements about the type of work that plaintiff did for the campaigns he worked on, and she accused plaintiff of being "fired from multiple campaigns for lying and unethical behavior" and for being a "habitual liar." Because of these allegedly false and defamatory statements, plaintiff claims he "suffered damages, including … embarrassment, humiliation, distress, and reputational harm."
Plaintiff then sued Wren for libel, and Chief Judge Beryl Howell (D.D.C.) in Doe v. Wren (1) allowed him to go forward pseudonymously, and (2) "prohibited [Wren] from publicly disclosing plaintiff's identity or any personal identifying information that could lead to the identification of plaintiff by nonparties, except for the purposes of investigating the allegations contained in the Complaint and for preparing an answer or other dispositive motion in response." Here's the justification Chief Judge Howell gave for pseudonymity (all the quotes above and below are from the opinion):
First, as the description of plaintiff's claim makes clear, plaintiff does not seek to proceed under pseudonym "merely to avoid … annoyance and criticism," but to "preserve privacy in a matter of [a] sensitive and highly personal nature." Although the substance of plaintiff's claim concerns public statements made by defendant on Twitter, these statements are inextricably tied to plaintiff's allegations of sexual assault against a third-party. Courts have routinely found that allegations of sexual assault implicate sensitive and highly personal matters, and they have permitted those plaintiffs to file their complaint by pseudonym. Given the ties between plaintiff's claim here and his claim of sexual assault against a third party, the first factor weighs in favor of permitting plaintiff to proceed anonymously….
Plaintiff [also] points out that the third-party he accuses of sexual assault is a high-ranking person in well-known advocacy organizations that are active in Republican and conservative political circles, and defendant was "a key organizer of the January 6, 2021, 'Stop the Steal' rally that led to the attempted insurrection at the United States Capitol." Given that defendant and the third-party appeal to a portion of the population who could view plaintiff's allegations as a political attack, release of plaintiff's name potentially "poses a risk of retaliatory physical or mental harm to the requesting party." …
[P]aintiff seeks to vindicate only his own rights, and anonymity appears to be necessary to provide him the opportunity to do so without compounding the public revelations defendant already allegedly made about the sexual assault against plaintiff by identifying him in this litigation.
For whatever it's worth, as best I can tell from searching based on a Tweet quoted in the Complaint, the plaintiff appears to have been fired several days ago from a job as a N.C. legislative staffer because of his past appearances on what seems to be a "pro-white" radio show; he is also apparently the same person who wrote a letter to a judge in support for a higher sentence for a Jan. 6 defendant. These aren't directly legally relevant to the libel case, but I would think these are normal things that journalists who cover the libel case might want to write about, and that the defendant could legitimately want to continue writing about; that helps illustrate the problems with pseudonymous litigation in such cases, and with the gag orders like this in particular.
More broadly, I think it's hard to justify the gag order, which directly restricts even accurate speech by Wren. That is especially so because the order appears to have been issued without giving Wren notice and an opportunity to appear to argue against it (see Carroll v. President & Comm'rs of Princess Anne (1968)). And Doe's alleging that he was a victim of groping can't justify the restriction; indeed, even subsequent punishment of the publication of the names of outright rape victims is generally unconstitutional (see Florida Star v. B.J.F. (1989)), so a prior restraint against the publication of the names of alleged groping victims seems even more clearly unconstitutional.
You can read more on The Law of Pseudonymous Litigation, if you'd like. That article notes that some courts had issued some similar gag orders (pp. 1375-76), and that some other courts had rejected those orders on First Amendment grounds. It also lays out the sharp split (pp. 1430-37) on whether pseudonymity in court records (even apart from a gag order) is improper even in sexual assault cases, a matter on which courts are split (and on which a few courts distinguish rape allegations from groping allegations, and allow pseudonymity as to the former and not the latter).
The case has been assigned to Judge Richard Leon, who is free to reconsider Chief Judge Howell's order; I understand that Wren will fight the gag order, and it will be interesting to see what Judge Leon does.
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Does Caroline Wren wake up each morning to the thought of ‘Who is the biggest asshole I could raise money for (and make money from) today?
Are Caroline Wren and Kari Lake tired of winning yet?
What people like Kirkland don’t understand is that the same tactics can be copied and used against *them*.
For example, Project Veritas started out copying a tactic that leftist activists were using to prove housing discrimination.
And for those lost in the weeds with all of this, the American Conservative Union (ACU) is the group that puts on the (once annual) Conservative Political Action Conference (CPAC, pronounced SeePack). It started to fall apart in 2010 when the RINOs tried to control the then-new TEA Party movement, and the next year the “Pink Elephants” arrived.
It now appears to be more about the money than anything else — and where the money goes is a very interesting question, but I digress.
That’s a terrible order, particularly the gag order portion. The “finding” that “defendant and the third-party appeal to a portion of the population who could view plaintiff’s allegations as a political attack” is itself a nakedly political judgment. So if the defendant was in a class of people the judge considers more responsible or discerning, the gag order might not be necessary. Federal judges should not be in the business of exercising prior restraint against their political opponents. And how does the judge know the allegations aren’t a political attack?
This is a defamation case. The plaintiff’s reputation is relevant to whether and to what extent he suffered damages. And for the defendant to assert truth as a defense, he may well want to cast a wide net to others who have interacted with the plaintiff in the past. The judge’s carve-out for “investigating the allegations in the Complaint” is wholly inadequate. It does not appear to fully protect any and all defense strategy. That inadequacy is especially problematic given that contempt sanctions are on the table if the defendant (or his lawyers) get it wrong.
Here’s hoping once the defense gets a chance to respond this order is quickly reversed.
“…a portion of the population who could view plaintiff’s allegations as a political attack”
And what if it is?
Seriously, what if it *is* a political attack?
Worse, what if it is a *fabricated* political attack?
Having seen the sheer nastiness of the RINOs, I would not be at all surprised if it was. I’ve seen them do things as extreme on the CR level and as that was 15 years ago, those [&%$#&&]ers are now players on the national stage.
This incident definitely happened. And it’s a near-guarantee it isn’t the first or hundred and first time, either. As such, Mercedes Schlapp is likely already well-aware of Matt’s… predilections. But they’ve kept a lid on it to date and she‘s absolutely going to rally her troops to hold the gravy train together. The naming of Schlapp’s victim and subjecting him to all manner of MAGA insanity and threats is part of that attempt. So good on the court for recognizing that and blocking this part of the counteroffensive.
Exactly what is preventing them from suing YOU anonymously?
The RIAA has shown how to track individuals down via IP addresses, which someone (Volokh, Reason, someone…) could be subpoenaed(?) to reveal, with the ISP owning the IP address then being likewise forced to reveal your identity.
I don’t know which side of the CPAC war Matt is on — and frankly don’t care as I went |/dev/null when they went to age-based admission rates and moved the event out of DC. Ronald Reagan is undoubtedly spinning in his grave, CPAC ain’t what it used to be — but I digress.
But why couldn’t Matt sue *you* — also anonymously?
And EV, this is the flip side of anonymous litigation — while Matt would look bad were he to sue some nobody, he doesn’t if he can do it anonymously. Likewise, we are all presuming that this litigant is a nobody — and maybe he isn’t.
“This incident definitely happened.”
You have zero basis for this assertion. You just don’t like Schlapp.
Let’s hope the police investigate — a relatively serious crime has been alleged to have occurred, and investigation and (if appropriate) prosecution would promote public safety — and justice prevails.
Yes, I noticed no mention of police involvement — and as this happened in a bar, most of which have pretty good cameras.
This is why I don’t go to CPAC anymore — the gays have destroyed it.
Personally, I don’t care what consenting adults do in private — I also don’t want to know about it and what happened circa 2011 with the now-defunct group known as GOPRIDE is everyone was expected to affirm the LBGTQ lifestyle.
And I don’t like being told what I must do, but I digress…
The other problem is the false flag operators in the conservative movement, leftist activists who seek to embarrass and discredit the cause — and this person may well be one of those. But how are we to know?
And what’s really dangerous here is that the allegations might not withstand the light of day were the accuser’s name to become public. I think that is where Wren was going in listing his age as being 39 and 43 (It *would* help to have the *correct* age) — he’s not a cute 20-year-old undergrad — and, sadly, cute 20-year-old undergrads of both sexes are hit on and worse at political events.
The larger issue is how can you defame someone anonymously?
Conversely, if he could be identified by Wren’s writings, what is to prevent every ambitious 20-year-old undergraduate from naming him? He can’t sue all of them, and wouldn’t do well in US District Court in, say, Alabama or Mississippi…
OK Kirkland, the gay activists — and I’d say the same thing were it the pro life activists with their large and quite macabre photos of abortions, except they were kept out.
“1.was “a key organizer of the January 6, 2021, ‘Stop the Steal’ rally that led to the attempted insurrection at the United States Capitol.”
Legally, how is the latter relevant to the former?
It’s 1.6 *miles* from the White House to the Capitol, exactly how is a perfectly legal rally in any way related to a purported attempted insurrection an hour’s walk away?!?
A question for EV and others: Let’s say I have a rally on the town common and (for the purposes of argument) do everything “right.” I have a bunch of BLM activists give the ACAB mantra, but it is not within the definition of “inciting a riot” and everything remains peaceful. And I end the event by telling everyone to be “peaceful & patriotic.”
But they then go 1.6 miles across town and proceed to burn down the police station. Am I responsible?
What if they go 16 miles and burn one down somewhere else?
What if they go 1,600 miles and burn one down in Miami?
IANAA and hence aren’t using the correct magic words, but this seems to me to be nothing more than guilt by association. And what about the Dallas BLM rally where a sniper popped up and killed 5 cops. Unless they knew he intended to do that, are the rally organizers responsible?
And if I am right, what does it mean when the judge puts it in his ruling?
1. One of the announcements for the rally read: “The March to Save America is tomorrow in Washington, D.C., at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m. At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal.” The rally at the Ellipse and the march to the Capitol are related because they were both part of the same planned event.
2. For the purposes of this ruling, it doesn’t really matter whether the organizers of the Trump rally are legally culpable for the insurrection. The judge states that, “release of plaintiff’s name potentially ‘poses a risk of retaliatory physical or mental harm to the requesting party.’” The Judge is evaluating risk, not legal liability.
Remember that there were four concurrent rallies — and that this one was sponsored by “Women for America First.”
Although I again ask where were all the cops???