This post examines an opinion a federal District Court Judge in Kansas recently issued in a civil suit.
Patton v. Entercom Kansas City LLC,
2013 WL 3524157 (U.S. District Court for the District of Kansas 2013). The judge begins by noting that
[t]his matter comes before the Court on plaintiff's Motion For Leave To File Complaint And Proceed Using Initials Or Pseudonym, Or, In The Alternative, To Proceed Under Seal (Doc. # 4) filed April 19, 2013. Plaintiff seeks leave to proceed in this case identified only by her initials, `A.P.,’ or as`Jane Doe.’ Alternatively, she moves that the case proceed under seal. Defendant Entercom Kansas City, LLC opposes the motion.
Patton v. Entercom
Kansas City LLC, supra.
The reason for the request comes from the nature of the
lawsuit and, apparently, from the facts at issue:
Plaintiff represents that on April 12,
2012, two morning radio hosts publicly cast her in a false light when they read
on-air a text message from a listener that identified her, by name, as a `local
porn star’ and graduate of Olathe South High School. Complaint (Doc.
# 1), filed April 19, 2013, ¶¶ 4, 17, 28. These comments were broadcast on
KRBZ–FM 96.5 The Buzz, which is operated by Entercom. Id. ¶ 2.
The station uploaded a recording to its website, but later removed it at the
request of plaintiff's father. Id. ¶¶ 25–26.
Plaintiff
identifies herself as a `young law student’ with a `sterling reputation . . . who
highly values her reputation as a citizen of the community.’ Memorandum
In Support Of Motion For Leave To File Complaint And Proceed Using Initials Or
Pseudonym, Or, In The Alternative, To Proceed Under Seal (Doc. # 5),
filed April 19, 2013, at 3.
She states that she is proud of her
academic and extracurricular accomplishments, and she values her reputation as
a citizen and her character as a future lawyer. The incident allegedly caused
her to become `distressed and deeply disturbed.’ She ultimately sought
treatment and medication for `sleeplessness, agitation, and anxiety,’ id. ¶¶
30, 32, and she continues to suffer these symptoms and take medication. Doc. #
5 at 4.
Patton v. Entercom
Kansas City LLC, supra. (If you are wondering why this lawsuit, which does not seem to involve any claims implicating federal law, as such, is in federal court, my guess is that it was filed in court under a federal district court's diversity jurisdiction. As Wikipedia explains, federal courts can, when certain conditions are met, hear cases the claims in which involve state law if the parties are "diverse," i.e., are from different U.S. states.)
So, Patton is suing Entercom Kansas City LLC on a civil,
tort law claim of false light. As
Wikipedia explains, “false light” refers to “a tort concerning privacy
that is similar to the tort of defamation.” As Corpus Juris Secundum
notes, the
elements of a false light invasion of
privacy are a publication about an individual which places him or her in a false
light before the public, which
is highly offensive to a reasonable person, and which the actor either knew
was false, or acted with reckless disregard as to its falsity. The false light need not be
defamatory, but it must be such
as to be offensive or objectionable to a reasonable person. Statements cannot cast a person in
a false light unless they are of and concerning that individual.
77 Corpus Juris Secundum § 13. As it also notes, false light requires
“publicity”, which means that the statement or statements
must not merely be published to a third
person, but communicated to the public at large or to so many persons that the
matter must be regarded as substantially certain to become one of public
knowledge.
77 Corpus Juris Secundum § 13. To prevail, the plaintiff must also prove
he/she was “damaged” by the false light statement(s). 77 Corpus Juris Secundum § 13. You can read more about false light here. The allegations noted above seem to go to that
issue, aside from any other “damage” that might have resulted from the
publication of the text message at issue.
The point here, though, is not liability, as such. It is whether Patton will have to pursue the
lawsuit as a public proceeding under her own name or employ a pseudonym or
have the court proceedings sealed. Before we examine how the federal judge in
this case rules on Patton’s requests, I should point something out: As I explained in a law review article I
published several years ago, bringing a suit for defamation or false light can
be counterproductive, as a matter of fact because the litigation can simply
call more attention to the allegations at issue.
If the litigation is complex and prolonged, it can have the
almost adverse effect of giving more and more publicity to the allegations
which, in turn, can mean that people who do not pay a great deal of attention
to the case (read, most people) will tend to remember the defamatory or false
light allegations and not remember that the plaintiff may very well have
prevailed, i.e., the court may have found that the content was defamatory
and/or false. So, even if a plaintiff
wins, it can be a bit of a Pyrrhic victory.
My guess, and it is just that, is that Patton is trying to minimize
and/or avoid that effect by bringing the suit under a pseudonym or having the
proceedings sealed, to prevent reporters and others from gaining access to
them.
The district court judge began her ruling on Patton’s
requests by noting that
[n]o federal rule or statute allows a
plaintiff to unilaterally use a pseudonym in court filings to conceal his or
her real name. Litigants using the courts must ordinarily accede to the
inherently public nature of the proceedings. Femedeer v. Haun, 227
F.3d 1244 (U.S. Court of Appeals for the 10th Circuit 2000).
Indeed, proceeding
anonymously is contrary to the spirit of Rules 10(a) and 17(a)
of the Federal Rules of Civil Procedure, which require respectively that pleadings
contain the parties' names and that an action be prosecuted in the name of the
real party in interest. . . . In exceptional circumstances,
however, courts may permit a plaintiff to proceed under a pseudonym when highly
sensitive and important privacy interests are at stake. M.M. v.
Zavaras, 139 F.3d 798 (U.S. Court of Appeals for the 10th Circuit 1998).
Patton v. Entercom
Kansas City LLC, supra.
She then explained that a federal district court
exercises `informed discretion’ when deciding whether to allow a plaintiff to proceed under the cloak of anonymity. M.M. v. Zavaras, supra. In particular, the Court weighs plaintiff's interest in privacy against the public's interest in access to open court proceedings. M.M. v. Zavaras, supra. In the rare instance in which a court permits the practice, the case usually involves abortion, birth control or welfare prosecutions involving abandoned or illegitimate children.
Patton v. Entercom
Kansas City LLC, supra.
The judge then found that Patton’s
assertions do not demonstrate that her
need for privacy outweighs the public's interest in access to open court
proceedings. Openness provides a substantial benefit and the public has an
interest in knowing the identities of litigants. Raiser v. Church of Jesus Christ of Latter-Day Saints, 182 Fed.
Appx. 810 (U.S. Court of Appeals for the 10th Circuit).
Only in exceptional circumstances will the
need for anonymity outweigh the presumption in favor of open proceedings. Raiser
v. Church of Jesus Christ of Latter-Day Saints, supra. Specifically, `exceptional
circumstances exist if the case involves 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 plaintiff's
identity. Raiser v. Church of Jesus Christ of Latter-Day Saints, supra.
[Patton] alleges that the radio announcement
involved matters of a highly sensitive and personal nature, but she also
represents that she never `had any connection whatsoever with pornography.’
One's sexual practices and preferences are among the most intimate parts of
one's life. Doe v. B.C.B.S. of Rhode Island, 794 F.Supp. 72
(U.S. District Court for the District of Rhode Island1992) (permitting
transsexual plaintiff to proceed under pseudonym). When these practices fall `outside
the realm of conventional practices which are generally accepted without
controversy, ridicule or derision, that interest is enhanced exponentially.’ Doe v. B.C.B.S, supra.
Patton does not argue that her sexual practices fall
outside the norm. To the contrary, she denies any connection to pornography.
Her denial leaves the inference that her intimate lifestyle choices fall within
the mainstream. Her argument, therefore, does not elevate her interest in
privacy to the level necessary to allow her to proceed under a pseudonym.
Furthermore, this is not a case where
the injury litigated against would be incurred as a result of the disclosure’
of plaintiff's identity. M.M. v.
Zavaras, supra. Taking [her] allegations as true, the injury
already occurred. She is not suing to prevent disclosures from being made;
rather, she is suing for compensation for disclosures that have been made. The
evidence presented shows that the `cat is already out of the bag,’ and the
Court will not attempt to put it back.
Patton v. Entercom
Kansas City LLC, supra.
The judge then went on to explain that
[b]y initiating this action for
damages, [Patton] has chosen to bring a private matter into the public eye. She
provides no evidence upon which the Court could conclude that the injury that
she describes will be repeated or exacerbated as a result of this litigation.
Prosecuting a lawsuit is much different than being the surprise subject of
one-sided shock-talk on a morning radio program. [Patton] will have an
obligation to tell her side of the story. She will also have to relive the
facts of the case whether or not she proceeds under a pseudonym. . . .
Patton v. Entercom
Kansas City LLC, supra.
She concluded by noting that
although the Court acknowledges Patton
greatly values her reputation as a community member and future lawyer,
plaintiffs alleging damage to their personal and professional reputations are
generally not allowed to proceed anonymously. . . .The possibility
of a plaintiff suffering embarrassment is also not enough to outweigh the
presumption of openness. M.M. v.
Zavaras, supra.
[Patton] has not demonstrated that this case
presents such an unusual situation that the need for anonymity outweighs the
public interest in open court proceedings. See id. Accordingly, the
Court overrules [her] motion to proceed under a pseudonym.
Patton v. Entercom
Kansas City LLC, supra.
Finally, the judge explained that federal courts have
long recognized a common-law right of
access to judicial records. Helm v. Kansas, 656 F.3d 1277 (U.S.
Court of Appeals for the 10th Circuit 2011). And, although the Court has discretion to seal
documents if the parties advance competing interests that outweigh the public's
right of access, . . . [Patton] fails to address any of the
factors that may support such a conclusion by the Court. Thus, the Court denies
plaintiff's motion to proceed under seal.
Patton v. Entercom
Kansas City LLC, supra.
That, though, apparently did not end the matter. The U.S. District
Court Judge who has been assigned the case issued the opinion examined above on
July 11, 2013. As you can see, this “Stipulated Protective Order” was entered
on July 25 by U.S. Magistrate Judge to whom the District Court Judge presumably
referred this issue.
The order is
lengthy, but the purpose is to “prevent the disclosure of matters deemed confidential under the terms of this Order
to persons or entities other than those involved in the prosecution or defense
of this litigation and to facilitate the exchange of information between the
parties.” Stipulated Protective Order,
Patton v. Entercom Kansas City LLC (July 25, 2013). Interestingly, Entercom, which opposed
Patton’s effort to bring the lawsuit under a pseudonym or have the proceedings
sealed, “stipulated to the terms of this Order.” So, Patton has apparently gained some measure
of privacy in her suit against the radio station.
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