Defendant Attempting to Permanently Seal the Entire Record in a Pending "Revenge Porn" Case

From a memorandum supporting a motion to permanently seal the entire case in Doe v. Crawford (S.D. Miss.):

Adopting the pseudonym "Jane Doe," Plaintiff filed this case against Defendant Crawford pursuant to 15 U.S.C. § 6851. She alleges Crawford engaged in "revenge porn" by transmitting a sexually intimate photograph of Doe to another man—Doe's current romantic partner—with the intention of embarrassing Doe.  In describing her relationship with Crawford, however, Doe states only that they were in a "romantic relationship."  In truth, Doe's relationship with Crawford is, and was, more than simply "romantic." …

The Court should seal the record of this case because Crawford's defense necessarily requires him to identify Doe and her relationship to Crawford, as well as disclose intimate details of their relationship…. To defend himself, Crawford must (1) identify Doe and her relationship to Crawford, and (2) disclose intimate details of that relationship in all substantive pleadings, including exhibits, before the Court….

Another procedure will not suffice because 15 U.S.C. § 6851 allows Doe to remain anonymous, yet Crawford must necessarily disclose Doe's identity to defend himself; therefore, sealing the entire case is the only option that allows Doe to litigate her claim anonymously and allows Crawford to defend himself….

The legal basis for Doe's claim is 15 U.S.C. § 6851(b)(1)(A), which states:

Except as provided in paragraph (4), an individual whose intimate visual depiction is disclosed, in or affecting interstate or foreign commerce or using any means or facility of interstate or foreign commerce, without the consent of the individual, where such disclosure was made by a person who knows that, or recklessly disregards whether, the individual has not consented to such disclosure, may bring a civil action against that person in an appropriate district court of the United States for relief as set forth in paragraph (3).

By design, claims brought under this statute concern intimate, personal and private evidence. Further, because of the sensitive subject matter, § 6851 allows plaintiffs to use a pseudonym to protect their privacy. The use of a pseudonym is subject to the discretion and injunction power of the Court. Here, Doe has chosen to use a pseudonym, expressing her desire to remain anonymous.

However, Doe's pseudonym and her allegations against Crawford work together to mischaracterize the relationship between Doe and Crawford. Doe's identity and actual relationship with Crawford are material elements to Crawford's defense. In other words, Crawford must disclose Doe's identity and her relationship to Crawford in conjunction with disclosing other intimate and sensitive details to defend himself.

This is a novel issue. Section 6851 is a new statute that took effect in October 2022, and the undersigned counsel has not found any case in the Fifth Circuit or any other Circuit that addresses sealing a court record for such a case.

"When determining whether to seal a portion of a judicial record, a court must balance the public's right to access filings against interests which favor nondisclosure." "Despite the public's general right to inspect and copy public record, a court may order documents sealed where, on balance, the party's interest in having them sealed outweighs the public's interest in open access to judicial records."

In this case, the public's right to access this case's filings does not outweigh Crawford's right to defend himself against Doe's claim. Otherwise, Crawford would be left unable to present a defense. Therefore, to resolve the tension between Doe's anonymity asserted under § 6851(b)(3)(B) and Crawford's right to defend himself, the Court should seal the entire record … permanently.

Here's my thinking: I appreciate that, when defendant necessarily explains his relationship to the plaintiff (e.g., if he is her former husband, just to give one possible example), that may end up making plaintiff's identity clear to those who know the defendant. And 15 U.S.C. § 6851(b)(3)(B) does provide that, "[i]n ordering relief …, the court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym."

But I don't think this privacy concern suffices to justify fully secret judicial processes, just as the concern for the privacy of, say, rape victims (or even child rape victims) doesn't justify total secrecy in litigation (even when the identity of the victim could be inferred from the identity of the defendant). To quote the Fifth Circuit, which is the federal appellate court that supervises the federal courts in Mississippi,

"Judicial records belong to the American people; they are public, not private, documents." And "[t]he public's right of access to judicial records is a fundamental element of the rule of law." "The public has an interest in transparent court proceedings that is independent of the parties' interests." This right "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness." Accordingly, we heavily disfavor sealing information placed in the judicial record.

And to quote another federal appellate court,

It is desirable that the trial of [civil] causes should take place under the public eye, … not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

More broadly, plaintiff chose to name the defendant in her lawsuit; she could have sought to sue him pseudonymously, but didn't so. (Pseudonymity is also presumptively forbidden in the civil justice system, but it is sometimes allowed in part because it is a less restrictive alternative to total sealing.) If as a result her identity can be inferred by people who know the defendant, that stems from her litigation decision.

I don't think the federal statute would preclude Crawford from saying what he needs to say about the relationship to defend himself. (If there's some question about that, or some need to redact the information about the relationship from all the filings, Crawford could seek a court decision clarifying that, by moving to file the information in the open record.) And I don't think federal law authorizes total sealing of a case in this sort of situation.