Keeping Courts Open

A case before the 11th Circuit Court of Appeals in Atlanta affects far more than the identities of four civil litigants suing "Girls Gone Wild" founder Joe Francis.

It could restrict the First Amendment freedom of the press and the public's right to know for years to come.

Last year, the lawyer for four women suing Francis asked the federal court in Panama City to prohibit the media from being present when they testify so as to maintain their anonymity (they are identified in court documents only as plaintiffs B, J, S and V). Florida Freedom Newspapers, the parent company of The Panama City News Herald, filed a motion to intervene.

In February, U.S. District Judge Richard Smoak ruled in favor of the media to keep the courtroom open. The plaintiffs appealed his decision to the 11th Circuit Court in Atlanta, which began hearing the arguments this week.

The attorneys argue that anonymity is necessary because details of the case "are highly sensitive and personal in nature" to the plaintiffs, who were 13 to 17 years old when they were filmed by "Girls Gone Wild" in stages of undress or engaged in sexual activity. All are now adults in their 20s.

There is little doubt that the plaintiffs are embarrassed by what happened in their youth. But that situation cannot justify restricting First Amendment rights.

The legal precedents in criminal trials are quite clear and should be extended to civil actions: Only under extraordinary circumstances should the identities in court proceedings be withheld. These primarily involve safeguarding national security, protecting trade secrets, ensuring the anonymity of juvenile offenders and witnesses and safeguarding rights of privacy.

However, in Globe Newspaper Co.

v. Superior Court (1982), the U.S. Supreme Court held unconstitutional a Massachusetts statute that required closed trials during testimony of minors who were victims of sexual abuse. Judge Smoak in his ruling in February noted that "the plethora of sex discrimination and sexual harassment cases litigated in the Northern District of Florida — often with even more lurid details than this case — have always remained open to the public and the plaintiffs are named."

Time and again, courts have ruled that legal proceedings should be open on the grounds that the public is entitled to know the identity of who is using the courts. Anonymity obstructs the public's right of access, can prejudice the public and impede the media's newsgathering process.

As Smoak wrote in February, "A trial courtroom is a public place where people have a general right to be present, and what transpires in the courtroom is public property."

If the appeals court overturns Smoak's ruling, it creates the potential for expanded use of pseudonyms in courtrooms based on the excuse of personal embarrassment — a component of many legal proceedings. The exceptions therefore should remain tightly drawn.

That doesn't mean that the plaintiffs' identity must be disclosed by the media. Indeed, The News Herald generally does not name victims in these kinds of cases, but as Florida Freedom attorney John Bussian argued, that decision belongs to the newspaper — not the government.

This case is not about exposing the plaintiffs' identities. It is about keeping the courts open.

REPRINTED FROM THE PANAMA CITY NEWS HERALD.

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