The federal appeals court in Atlanta ruled that plaintiffs could remain anonymous in suing video creator Joe Francis for filming them while they were underage engaging in nudity and sexual acts. -db
The Reporters Committee for Freedom of the Press
February 2, 2011
By Derek Green
Several women suing the creator of the “Girls Gone Wild” video series will be allowed to proceed anonymously in the case, after a panel of the U.S. Court of Appeals in Atlanta (11th Cir.) on Tuesday overturned a district court judge’s decision requiring disclosure.
But the court left open the issue of whether the plaintiffs’ request for restricted reporting at trial would serve as an unconstitutional prior restraint on speech.
Plaintiffs in the case, Plaintiff B v. Francis, sued video creator Joe Francis and his companies “for damages stemming from films the Defendants produced in which the Plaintiffs, while under the age of eighteen, exposed their breasts and engaged in sexually explicit acts,” according to the appellate court’s opinion. One plaintiff also alleged that she had been sexually assaulted by Francis. At issue was the trial court’s denial of the plaintiffs’ request to remain anonymous through the trial proceedings.
The district court initially allowed the plaintiffs to proceed anonymously through pre-trial proceedings, but later ruled that the plaintiffs could not proceed anonymously at trial. The appellate court disagreed with the trial court’s decision, noting that the lower court’s ruling rested on the conclusion that the presumption of openness in court proceedings outweighed the concerns expressed by the plaintiffs.
The appeals court’s analysis began by acknowledging a “strong presumption in favor of parties’ proceeding in their own names,” noting that defendants “have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not.”
But this rule is not absolute, the court said. Referencing cases involving issues such as abortion and religious beliefs, the court noted that the presumption against anonymity can be overcome when a party “has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.'”
The Eleventh Circuit concluded that this case involved such concerns. “The issues involved in this case could not be of a more sensitive and highly personal nature — they involve descriptions of the Plaintiffs in various stages of nudity and engaged in explicit sexual conduct while they were minors who were coerced by the Defendants into those activities,” the court stated.
The Eleventh Circuit ordered the district court to allow two of the four plaintiffs to proceed anonymously, concluding that the explicit and involuntary nature of the actions that they alleged and the potential harm they could suffer justified proceeding anonymously. The appellate court also ordered the trial court to reconsider whether the other two plaintiffs should also be allowed to remain anonymous.
Notably, the court’s opinion left open the issue of how to allow the plaintiffs to proceed anonymously at trial without creating an impermissible prior restraint on speech. Observing that the plaintiffs sought to restrict the press’s ability to report identifying information disclosed at trial, the appellate court ordered the trial court to address the issue on remand.
Copyright 2011 The Reporters Committee for Freedom of the Press FAC Content Use Policy