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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.
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Seems patently unfair, as a general proposition. The defendant starts at an unfair disadvantage; he is stigmatized because he is identified, and may in fact be innocent (ok, maybe not innocent, but the verdict is not guilty). And then Doe walks away, no harm no foul, while the defendant is still stigmatized? That just doesn’t seem….right.
Anonymize both (which I am fine with), or identify both; anything less than that tilts the playing field unfairly.
There is a reason to treat plaintiffs and defendants differently. Namely, we don’t have to worry about cases not being brought because of defendants (they are brought into proceedings involuntarily), but we do have to worry about them not being brought because of plaintiffs. Furthermore, plaintiffs are not accused of wrong-doing, whereas defendants are so accused.
A defendant may have a counter-claim that in effect makes the plaintiff also a defendant. In that case, the plaintiff and defendant may, depending on the circumstances of the case, be more similarly situated. However, a counter-claim that did not have a foundation and was just used to expose the identity of the plaintiff would be problematic; this can be handled on a case-by-case basis.
David Welker: We do have to worry about defendants not bringing meritorious defenses (including, “plaintiff is lying, I didn’t do that”). Many a defendant, I think, is deterred from fighting a case when they get a pre-filing copy of the Complaint, and contemplate what will happen to their reputations when the case is filed.
Your point about pre-filing negotiation is a very good one.
Perhaps we should require represented plaintiffs to avoid pre-filing demands if they want pseudonymity. It really is harmful when settling litigation becomes a means of reputation management rather than resolving disputes on the merits anyway… in that case, the plaintiff is gaining something at the expense of the public, insofar as the public is losing access to information and the plaintiff is gaining an award as a result. And this would help minimize the issue of people using the threat of such lawsuits as a shake down tool.
Ok David, what is the remedy then, for a defendant who was accused by an anonymous plaintiff, who is found not guilty? The defendant is stigmatized for life. That doesn’t just go away.
First of all, in civil cases, we are talking about liable versus not liable. If the case should not have been filed in the first place, the defendant can file a malicious prosecution claim.
There is, of course, the problem of losing something intangible (reputation) that can only be compensated by money. So, it isn’t a perfect solution. But, in general, litigation does not produce perfect solutions.
Your “reason to treat plaintiffs and defendants differently” is uncompelling. Yes, defendants are accused of wrong-doing – and they are immediately and permanently harmed by the mere accusation. This remains true even if the accusation is later determined to be entirely unfounded.
That people might have stigma due to unfounded allegations in the civil system is definitely not good. But that problem does not prevent the system from working altogether, as it does when voluntary participants, such plaintiffs or witnesses refuse to participate because of fear of stigma.
False allegations do not create a relevant incentive to avoid resolving the dispute using the justice system altogether, since the defendants presence is involuntary. EXCEPT, as Eugene Volokh pointed out above, there are pre-filing negotiations and there is a possibility of a shakedown.
One way we could resolve that issue is by stripping the plaintiff of pseudonymity in any case where they engage in pre-filing (or pre-identification) settlement negotiations while represented by counsel.
The problem I am concerned with is not stigma per se, but rather the justice system itself malfunctioning. Laws that people are unwilling to enforce will not be enforced. The motive is not to be nice to a plaintiff (also, a person can be both a plaintiff and defendant in the same case), it is to ensure that the justice system is available as a practical matter, even when a person is embarrassed by something that allegedly happened to them.
Overall, I am not persuaded by Eugene Volokh’s arguments regarding pseudonymity as a policy matter. We allow disputes to be resolved totally anonymous through arbitration, with coercive judgments and public resources consumed to enforce the outcome. The idea that the public MUST KNOW about the particulars of every dispute involving private parties is not persuasive in a world with widespread private arbitration.
When it comes to issues like revenge-porn, where the violation itself is an invasion of privacy, the idea that plaintiffs should be able to proceed pseudonymously is just common sense. In most cases, we can monitor rulings and the performance of the court system without knowledge of the particular identity of the plaintiff. Certainly, much more than if such a case were to be resolved through, say, private arbitration.
Overall, when it comes to cases where the core of the violation itself is the privacy of the plaintiff, pseudonymity for the plaintiff may very well be justified. It isn’t good to chill the enforcement of rights; laws that people are not willing to enforce might as well not be laws at all.
” The idea that the public MUST KNOW about the particulars of every dispute involving private parties is not persuasive in a world with widespread private arbitration.”
I completely disagree. Private arbitration is exactly that- private, and more importantly, agreed-to by the parties. Usually by contract. Admittedly, I am sympathetic to those who unknowingly find themselves in arbitration because they didn’t pay attention to what they agree to, but still …
Courts are a public resource. You are asking the state (the government) to resolve your dispute, using government resources. It is a matter of public record. And as we always says, sunlight is the best disinfectant. Absent extreme circumstances, all court records should be public documents. If anything, it’s somewhat annoying that PACER (federal court) is behind a paywall and you have to pay to access those documents.
If you look to the sheer amount of litigation that we have, I think you would find it hard to credibly argue that the system we use has any chilling effect on people using the court system to vindicate their rights.
Current law is highly protective of businesses, which are given wide latitude to keep their trade secrets and such from the public in the course of litigation. Why should the constitution permit businesses to do this, while prohibiting ordinary people from similarly protecting their personal private information?
It’s a fair question.
I am not sure I understand what you’re getting at. “Discovery” is a separate issue than the filing of court documents. For example, a good deal of discovery can be subject to confidentiality agreements between the litigants and will never be within the court file. I assume you are talking about discovery when you say “trade secrets.” But yes, certain trade secrets will not be put into the record in open court, for the simple reason that in litigation (often between competitors) it would be impossible for a company to litigate anything knowing that this information would always be in the record.
But this is incredibly limited. It doesn’t prevent the company from having embarrassing information released (see, e.g., any case involving a company … or the recent Fox / Dominion litigation). It certainly doesn’t prevent a company from preventing having their name released!
So the analogy doesn’t hold. A similar example would be that a private party would be able to redact certain specific information- for example, intimate photos, from the record.
So it’s not only not a fair question, it’s more trying to analogize apples and spaceships.
First, I don’t think that people should have stigma free access to the justice system by private agreement while those who use the publicly available must face stigma as a result. Doing this, create unwelcome tiers in our society and enables some people to systematically hide their wrong-doing from society.
Second, as you assert, many people unknowingly end up in arbitration. Worse, the reason they might have done business with the person in the first place is because the defendant was able to conceal a pattern of behavior that would have otherwise been evident due to arbitration.
Third, public resources are still used in arbitration to enforce the judgment.
Fourth, I agree with the disinfectant point, but unless the plaintiff is a public figure, there is little be gained to public by revealing the identity of the plaintiff. I agree that PACER records should be free.
Fifth, I agree that stigma does not prevent the litigation system from working in many cases. But it does prevent it from working in some cases. Look, if the allegation is revenge porn, for example, you probably don’t want people entering your name into a Google search looking for porn with you in it. It may defeat the possibility of a legal remedy in many instances to deny pseudonymity in such instances.
I think the availability of private arbitration as an alternative to the court system weighs against sealing, rather than in favor, as David Welker argues. Arbitration is a matter of contract. If the parties don’t like that the court system permits public access to their dispute, they may opt out and arbitrate. Normally this is done pre-dispute. But there’s nothing stopping parties, even in a scenario like this one, from choosing arbitration after the dispute arises.
For example, the plaintiff believes she has a “revenge porn” claim against the defendant. She sends a draft complaint to defendant along with a proposal: if I file this, you will be identified and your reputation ruined (to some degree even if your defense succeeds). And I am at risk of reputational damage too, because details released in connection with your defense might make it easy for people to determine my identity, even if I start the case as Jane Doe. So I propose to arbitrate the case. The only possible court proceeding would be a motion to enforce the arbitration award, at which stage it is unlikely the details of the claim will need to be put on the record (and the parties could restrict this by agreement as well).
The arbitration option gives the parties meaningful choice to protect their identities and the courts don’t have to trample the right of access to public records by sealing the entire case file.
The person who can finance private arbitration in the situation you describe is likely affluent. So, I don’t see the scenario you describe, which is perfectly available under the status quo, as a solution.
Is 15 U.S.C. § 6851 likely to be found constitutional under the First Amendment?
The content included under the statute is not limited to obscene displays of nudity or sexual content, so the statute is content-based. Strict scrutiny analysis would apply.
I would predict that the statute would survive strict scrutiny review. Protection of a non-consenting person’s privacy qualifies as a compelling governmental interest, and less restrictive alternatives do not come readily to mind. So long as the burden of proof remains on the civil plaintiff and the statute requires proof of the culpable mental state, I don’t see a First Amendment problem.
I’d suggest two ways of looking at this besides privacy, property and crime facilitation. Laws that give celebrities a property interest in their images are perfectly constitutional. And nothing in the First Amendment requires celebrities to have more rights than everyone else. So I don’t think laws that give ordinary people a kind of property interest in their images under certain circumstances would present a problem.
Also, “peeping tom” statutes that prohibit voyeurism have long been constitutional. If you can prohibit voyeurism itself, it strikes me you can prohibit voyeur videos as a kind of or by analogy to crime facilitation speech.
Actually, the “right of publicity” and similar rules that give everyone — celebrity or otherwise — the right to stop the use (usually limited to commercial use) of their name, likeness, and other attributes of identity have been pretty sharply limited on First Amendment grounds. I wrote about this in 2004, but the general pattern has continued — they provide strong protection against commercial advertising and commercial merchandising, but generally much less protection against other uses (which is why, for instance, newspapers or unauthorized biographers can illustrate their stories with people’s photographs).
To be sure, I think laws banning nonconsensual distribution of pornographic images of a person are constitutional, if properly crafted. But the right of publicity offers only a limited analogy here, and it shouldn’t be viewed as a broad, general right enjoyed only by celebrities.
I agree there is a presumption of identified plaintiffs and open documents and proceedings, but as I see it, while the Constitution specifically provides for a criminal defendant’s right to a public trial, in civil proceedings I think the presumption should be regarded as more of a common law one, with exceptions subject to potential revision over time with input from legislatures, rather than being regarded as fixed in time with changes subject to strict scrutiny and determined only by judges. Historically, courts could close certain matters, such as divorce trials with inflammatory evidence, to the public.
I agree that unequal pseudonymoty, where the plaintiff gets her identity completely protected but the defendant has to do everything in public, is a Due Process problem, and a situation where the defendant cannot offer defenses that risk revealing the plaintiff’s identity compound the problem. Due Process entitles defendants to defend themselves. I would tend to agree with Professor Volokh on this one that rather than seal everything, the solution is to permit the defendant a valid defense.
So if, as the defendant claims, the law here prohibits the defendant from introducing defenses that risk revealing the plaintiff’s identity, the solution is not to seal everything, but to declare the aspects of the law that would prohibit a valid defense umconstitutional.
Even though I don’t think there’s a hard constitutional right for public civil trials, I think that laws that prevent defendants from defending themselves in order to protect plaintiff’s’ anonymity are unconstitutional. The controlling constitutional principle as I see it is not an atextual public right of access, but the defendant’s core and very textual right to due process of law.
That said, I also think that this subject matter is within the realm of things that courts could traditionally and historically close to the public, and because of this history, a law that permitted a court to do so would (or at least should) be constitutional.