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Free Speech

Rare Grant of Pseudonymity to a Libel Plaintiff, Where There's Evidence of Risk of Violent Attack


From yesterday's decision by Magistrate Judge Laura Lothman Lambert (M.D. Fla.) in Doe v. Predator Catchers, Inc.:

[D]efendant Predator Catchers, Inc. … "has as its purported mission, the investigation into … and public exposure of sexual predators, principally those preying on minors." … [P]laintiff alleges Predator Catchers uses vigilante tactics, including setting up fake profiles on internet dating websites to lure individuals into potential trysts through sexually suggestive messaging. Predator Catchers then publicly, through various internet platforms, accuses individuals of attempting to engage in sexual encounters with minors.

Plaintiff maintained a profile on Tinder, an online dating application; on March 2, 2022, he matched with a woman named Jessie. Plaintiff and Jessie first sent messages to each other using the Tinder platform and then transitioned to communicating via text messaging. Eventually, Jessie invited plaintiff to meet at her grandmother's house in Mayport, Florida. According to plaintiff, Jessie's Tinder profile pictures depicted an adult, as did the five other photographs she sent him via text; plaintiff also alleges that he confirmed Jessie was over 18 years old.

Plaintiff later traveled to the Mayport address provided by Jessie and was greeted by an adult female. Schmutte, [founder and president of Predator Catchers,] who was also present at the address, then confronted plaintiff, while he recorded him, and accused him of attempting to have sex with a minor. Schmutte also allegedly threatened to strike plaintiff in the face. According to the complaint, Schmutte states there is no case against plaintiff at the end of the recording.

Still, Schmutte's recording was posted, in edited form, on various internet websites, with a photograph of plaintiff, and the caption: "he said he was 38. The decoy was 13." In the comments section of the posting, various individuals threatened violence against plaintiff. Plaintiff maintains that he never initiated a sexual encounter with or made any suggestive comments toward Jessie, and that he relied on Tinder's policy not to permit an individual under 18 years' old to connect with an individual over 18 years' old. Plaintiff further alleges that he has been humiliated by defendants' actions, suffered mental distress, and been financially burdened by efforts to minimize the effect of the incidents on his life.

Plaintiff sued defendants in a five-count complaint, alleging defamation (count I), invasion of privacy (count II), intentional inflection of mental distress (count III), assault (count IV), and a violation of Florida Statutes § 815.06, Offenses Against Users of Computer, Computer Systems, Computer Networks, and Electronic Devices, (count V)….

The Court begins [its] analysis considering the constitutional implications of the openness of judicial proceedings, particularly in light of the First Amendment. Doe v. Stegall (5th Cir. 1981) ("First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings."). As a result, under Fed. R. Civ. P. 10(a), parties in a lawsuit must identify themselves in their pleadings. Rule 10 is more than administrative; it reflects both the constitutional importance of open judicial proceedings and the "the public's legitimate interest the facts of a lawsuit, including the identities of the parties."

A party may proceed anonymously, however, by establishing that his privacy right outweighs the presumption of openness in the judicial proceeding. Id. at 1316-17 (additional quotations and citation omitted). Mere embarrassment is not enough; rather, the party moving for anonymity must establish the case "involve[s] matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the [party's] identity." …

Weighing plaintiff's privacy rights against the presumptive openness of judicial proceedings and considering the relevant factors outlined above, I find [several] factors weigh in favor of plaintiff and that he should be able to proceed anonymously. First, the very nature of the case implicates highly intimate information of a personal and sexual nature. As shown above, plaintiff alleges he was seeking a personal, and apparently intimate relationship through a dating app, and believed he was communicating and ultimately meeting with an individual of who was over 18 years old. Although plaintiff claims that he believed to be meeting an adult, he alleges that when confronted by Schmutte, he was accused of attempting to engage in sexual conduct with a minor. Plaintiff also alleges that Schmutte recorded the encounter and posted it on the internet with a photograph of plaintiff, including a caption that implied he was intentionally seeking a relationship with a minor.

As the Court has explained, the harm that plaintiff alleges as grounds for the lawsuit—that defendants falsely portrayed him as a sexual predator of children— would be amplified if he is required, at this stage, to proceed under his name. Plaintiff could become further associated with having a sexual interest in minors, which is patently illegal conduct. And while mere embarrassment does not justify proceeding anonymously; a showing of "social stigma" may be "sufficient to warrant proceeding anonymously." The Eleventh Circuit explained that, "'[c]ourts have permitted plaintiffs to proceed anonymously in cases involving mental illness, homosexuality, and transsexuality' because 'the social stigma attached to the plaintiff's disclosure was found to be enough to overcome the presumption of openness in court proceedings.'" See also Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (reversing an order denying a motion to proceed anonymously in a case involving abortion in part because of the highly sensitive and personal nature of the procedure); Stegall (explaining that by challenging government activity, the plaintiffs revealed their personal beliefs and practices and holding that religion is a "quintessentially private matter.").

Second, plaintiff has submitted particularized evidence, specifically evidence of threats directed toward him, that establish a likelihood he would be threatened by violence or physical harm if he proceeded in his real name. Plaintiff contends that Schmutte threatened to "smash him in the face" and later made a social media post portraying plaintiff as a sexual predator that resulted in multiple threatening comments. One comment, reviewed by the Court, reads that "one bullet fixes that problem" insinuating the commenter wants to (or feels someone should) shoot plaintiff. Fairly recently, the Eleventh Circuit recognized that "[i]n today's digital age" harassing comments posted on a website may be enough to establish that an anonymous plaintiff would be subject to threats and harassment if she had to proceed under her own name.

The information contained on social media or other internet sites alleging plaintiff has a sexual interest in children, paired with evidence of actual threats toward him in the public comment section of those postings establishes a likelihood that physical violence may committed against him. Compare Strike 3 Holdings v. Doe (M.D. Fla. 2023) (holding that the defendant could not proceed anonymously in a copyright infringement action involving the downloading of adult content because "embarrassment alone fails to amount to good cause or compelling justification to proceed under seal" where there was no showing the defendant would be threatened by physical violence or physical harm or that the other factors applied)…

The public certainly has an interest in the subject matter of the lawsuit, yet as the Court has explained, the name of the plaintiff does not further that interest in any meaningful way. {This order does not prevent defendant from moving to preclude the use of pseudonyms later in the litigation.}

Congratulations to Samuel Grier Wells, who represents Doe.