Monday, August 05, 2013

The Text Message, False Light and the Pseudonym

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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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