Seventh Circuit Adds Insult to Injury in Teen Sex Tape Case

The Seventh Circuit Court of Appeals, based here in Chicago, has just issued a frustrating opinion in a privacy case, and compounded that opinion with an egregious administrative error that itself invaded the privacy of a young woman.  In Doe v. Smith, the court considered an appeal by the plaintiff, who was a sixteen year old girl when she engaged in sexual intercourse with Jason Smith. According to Doe's complaint, Smith surreptitiously recorded their sexual encounter using a hidden video camera and then emailed copies of the tape to buddies at his high school. One of these friends then allegedly posted a copy of the video on the Internet. Doe sued Smith for invasion of privacy and violations of the federal wiretap act.  The court ruled, quite plausibly, that the district court erred in dismissing the plaintiff's federal cause of action under the wiretap act.  The court followed this holding up with a remand instruction that is, in my view, extremely unfortunate and threatens to undercut legal privacy protections substantially.  Scrutinizing the caption of the case, the court wondered whether the plaintiff should be allowed to proceed as a Jane Doe. 

The court wrote:

On remand, the district judge must revisit the question whether the plaintiff should be allowed to proceed anonymously.  The judge granted her application to do so without discussing this circuit's decisions, which disfavor anonymous litigation. (cites).  The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret. (cites).  Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity - yet it is Smith, and not the plaintiff, who faces disgrace if the complaint's allegations can be substantiated. And if the complaint's allegation's are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.

. . . Now perhaps anonymity still could be justified if the tape has been circulated more widely (as counsel asserted at oral argument), and disclosure would allow strangers to identify the person in the recording and thus add to her humiliation. That question should be explored in the district court -- and, if the judge decides that anonymous litigation is inappropriate, the plaintiff should be allowed to dismiss the suit in lieu of revealing her name. (emphasis mine).

In a nutshell, the court's view is that a plaintiff alleging invasion of privacy should have to proceed under her own name in a lawsuit, so that just in case anyone failed to hear the private information that the defendant is alleged to have revealed in the first instance, the press can report on the juicy facts and the plaintiff's identity with impunity once the lawsuit has been filed.  The end result of an anti-psuedonmity rule would be that virtually no one would ever file a meritorious invasion of privacy lawsuit.  The incremental harm to the plaintiff's privacy from the plaintiff's own lawsuit would almost always be greater than the incremental harm from the defendant's acts.  Privacy, as I argue here, does not operate on an on-off switch, but functions more like a dimmer switch, and the hundreds of people who knew of Doe's sex act in this case would balloon into hundreds of thousands were Doe to pursue the cause of action under her own name.  The U.S. Supreme Court has recognized this point implicitly in landmark privacy opinions such as Florida Star v. B.J.F. [Hint: B.J.F. isn't the plaintiff's full name in that case.]  Indeed, students who have taken my privacy class can attest that pseudonymous captions are quite common in privacy tort cases generally.

The court's "poor Mr. Smith" argument is only superficially appealing. First, the overwhelming majority of defendants in privacy suits are deep pocket media outlets, not high school seniors, so extrapolating a broad anti-pseudonmity rule based on these facts is inappropriate. Second, the argument that "it is Smith, and not the plaintiff, who faces disgrace if the complaint's allegation's can be substantiated" seems insufficiently attuned to social reality. The idea that a young woman in Doe's shoes faces no disgrace if she prevails (under her real name) in a lawsuit against a man who allegedly videotaped her sex acts and facilitated their posting on the Internet is laughable. Most puzzling of all is the court's suggestion that "if the complaint's allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability." Without liability?  Correct me if I'm wrong, but wouldn't a defamation malicious prosecution cause of action arise if Doe made defamatory charges against Smith?  Surely Doe's pseudonymity in a lawsuit wouldn't protect Smith from finding out her identity and suing (using Doe's real name in the case caption) if Doe's allegations were baseless.

Most maddening of all is the court's reminder that the plaintiff could, on remand, drop her lawsuit if she decided that proceeding under her own name wasn't worth it.  There's nothing wrong with that language or sentiment. Rather, the outrage, as How Appealing points out, is that the Seventh Circuit then posted on its web site an unredacted version of the Appellant's brief, which prominently includes the plaintiff's real name for all to see. (The portion of the brief containing this information is required by Circuit Rule 26.1, so it seems that her lawyers were obliged to provide her real name in this portion of their filing, though I wonder why they did not seek a waiver of that rule.)  By publishing the brief, the Seventh Circuit itself has permanently introduced the plaintiff's name onto the Internet, where it will be archived and Google-accessible for the rest of her life.  The option that the court seemed to offer the plaintiff -- drop the suit and fade into relative obscurity -- turns out to be completely illusory thanks to a clerical failure to redact Doe's real name.

I harbor serious reservations about the reasoning in these two paragraphs of the Seventh Circuit's opinion. Courts in virtually every state have recognized a tort cause of action for public disclosure of private facts, and eliminating plaintiff psuedonimity would, for all intents and purposes, gut those torts. But this opinion is the work product of terrifically talented judges on a very capable court, so if pressed they might be able to come up with better responses to my criticisms.  Whatever our views about the court's legal analysis, however, we should all be able to agree that the administrative bungling that led to the court's disclosure of Doe's real name is utterly inexcusable. 

UPDATE: Dan Solove at Concurring Opinions has a lot more interesting stuff to say about this case, and provides more legal context, as does Will Baude at Crescat.  I think Dan's post does a particularly good job of developing the argument that the Supreme Court's actions Florida Star (which involved the identity of a rape victim) are relevant here, and that there is tension between the 7th Circuit authority on which the panel relied and Florida Star.  Will is troubled by the administrative error but not by the remand on pseudonymity. I guess I'd agree with Will if the court issued a short and sweet "The district court on remand should consider the issue of pseudonymity under our precedents."  But I read the circuit court's language as strongly hinting to the district court which way it should come out on the issue.  Circuit courts provide such hints in remand instructions all the time, but in this instance the court is hinting in a very disturbing direction. These facts present about as strong a case for plaintiff psuedonmity as one can imagine. 

Comments

[Paul M. Secunda]

Lior, great post.

I am not familiar with the practice of anonymous captions in the 7th Circuit, but the recent Supreme Court case of City of San Diego v. John Roe (US 2004) seems to represent the better approach in a much less sympathetic case.

John Roe represented a case in which a police officer was fired for selling pornography of himself on eBay. It seems clear that if the 9th Cir. courts are willing to give the anonymous caption to an adult law enforcement officer who voluntarily sells pornography of himself, an anonymous caption would be more than appropriate for a minor who was secretly taped engaging in intimate relations.

[Doug Lichtman]

It seems only fair to point out that the judges who wrote the opinion and under whose watch the plaintiff's name let slip were judges Easterbrook, Evans, and Williams.

[ohwilleke]

Mr. Smith would not have a defamation action. Court pleadings are privileged from defamation suits. His remedies would be to: (1) bring a motion to strike the pleadings, (2) bring a motion to have the case tried under seal, and (3) if the suit was frivilous, to bring suit under Rule 11 or related doctrines seeking an award of his attorneys fees and costs.

But, there are very few exceptions to the rule that provides that a defendant who prevails in a civil lawsuit is not entitled to a suit for damages for harm to the defendant's reputation as a result of the suit, even if it was a frivilous suit. This policy encourages people to use the courts, rather than the court of public opinion, to resolve such disputes, prevents the threat of suit from creating costly satellite litigation that could discourage meritorious suits, and recognizes that the fact that one prevails in litigation provides a tool to rehabilitate one's reputation.

[Ted]

Is there even an administrative slip here? Did Doe notify the clerk of the need to redact from the filed versions of the brief? Did Doe make a motion to file under seal? Did Doe submit a redacted copy for use electronically?

San Diego v. Roe surely comes out differently in the Seventh Circuit, which is the court most unfavorable to motions to seal and pseudonyms.

I didn't read this opinion as so clearly dictating the revocation of pseudonymity; it certainly contemplates the possibility of real issues, and simply spanks the lower court for failing to perform the analysis at all.

but wouldn't a defamation cause of action arise if Doe made defamatory charges against Smith

No. There's an absolute litigation privilege. At best, there's a malicious prosecution cause of action, and that requires a showing of no probable cause. Civil defendants don't have much in the way of recourse or rights when it comes to being made whole for meritless litigation.

[Lior]

Ted is right, I have changed the post. Malicious prosecution would be the appropriate cause of action. For a relevant local explanation, see Illinois Nurses Ass'n v. Bd. of Trustees, 318 Ill. App. 3d 519 (2000).

As for the question about judicial error. We can assume that the judges read the brief, right? If so, they should have noticed what Howard Bashman noticed, which is the disclosure of the plaintiff's real name. At the very least, noticing this disclosure would have warranted omitting the opinion's two paragraphs on pseudonmity, which would have been mooted by the publication of the unredacted brief online. Alternatively, they could have alerted Doe's counsel to the error at oral argument. As my initial post indicates, I believe Doe's counsel should have prevented the error, but the Court's failure to notice the disclosure in a case with an important holding regarding pseudonmity is embarassing.

[Ted]

The judges read the brief, but the Rule 26.1 disclosure HAS to include the real name--how else can the judges avoid conflict-of-interest problems? The judges don't know whether the brief has been filed under seal, and it's poor use of resources to make it their obligation to check the website every time there's confidential information at issue to ensure that the attorney has done their job properly, when the only interest is that of the attorney's client--who the attorney is supposed to be looking out for to begin with.

Doe is still pseudonymous. No one has published the name, a google search does not associate Doe's real name with the lawsuit, and you and I will forget the name inside a week. (If the issue is that a few dozen people now know who she is, that problem already exists; nothing stops a classmate from mentioning that she knows who Doe is, just as happened with Katelyn Faber in the Kobe Bryant case.) Her attorney can still ask the Seventh Circuit to post the brief under seal.

[Anthony D'Amato]

The 7th Circuit seems to have placed a condition upon the plaintiff's 5th and 6th amendment rights to obtain redress for harms, namely, that her identity must be disclosed. But this condition automatically leads to amplifying the invasion of her privacy. Since this amplification is out of her control, and was occasioned in the first place by the defendant's conduct, shouldn't she be able to add to her damages against the defendant damages for the additional injury caused by the amplification?