B v. S–

• Decision Date: 01 February 2011
• Docket Number: No. 10–10664.,10–10664.
• Citation: 631 F.3d 1310
• Parties: PLAINTIFF B, Plaintiff–Appellant,Florida Freedom Newspapers, Inc., Intervenor–Appellee,Plaintiff J, Plaintiff S, Plaintiff V, Plaintiffs–Appellants,v.Joseph R. FRANCIS, MRA Holdings, LLC, Mantra Films, Inc., Aero Falcons, LLC, Defendants–Appellees.National Crime Victim Law Institute, Southern Newspaper Publisher's Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Eleventh Circuit

631 F.3d 1310

78 Fed.R.Serv.3d 946

39 Media L. Rep. 1257

22 Fla. L. Weekly Fed. C 1743

PLAINTIFF B, Plaintiff–Appellant,Florida Freedom Newspapers, Inc., Intervenor–Appellee,Plaintiff J, Plaintiff S, Plaintiff V, Plaintiffs–Appellants,

v.Joseph R. FRANCIS, MRA Holdings, LLC, Mantra Films, Inc., Aero Falcons, LLC, Defendants–Appellees.National Crime Victim Law Institute, Southern Newspaper Publisher's Association, Amicus Curiae.

No. 10–10664.

United States Court of Appeals, Eleventh Circuit.

Feb. 1, 2011.

Thomas G. Dent, Rachael G. Pontikes, Larry Selander, Duane Morris, LLP, Chicago, IL, Robert A. Fleming, III, D. Ross McCloy, Jr., Harrison, Sale, McCloy, Duncan & Jackson, Chartered, Panama City, FL, Wayne Audrey Mack, Duane Morris, LLP, Philadelphia, PA, Daniel I. Small, Duane Morris, LLP, Miami, FL, for Plaintiffs–Appellants.John A. Bussian, III, Bussian Law Firm, PLLC, Raleigh, NC, Charles F. Marshall, Brooks Pierce McLendon, Raleigh, NC, for Intervenor–Appellee.Glenda Lavon Thornton, Frederick Leo Bateman, Jr., Bateman Harken PA, Tallahassee, FL, for Defendants–Appellees.Clifford C. Higby, Bryant & Higby, Chartered, Panama City, FL, Christina Crozier, Jeffery T. Nobles, Haynes Boone, Houston, TX, John A. Bussian, III, Bussian Law Firm, PLLC, Raleighm NC, Charles E. Coble, Brooks Pierce McLendon, Raleigh, NC, for Amici Curiae.Appeal from the United States District Court for the Northern District of Florida.Before DUBINA, Chief Judge, ANDERSON, Circuit Judge, and MOODY, ^* District Judge.DUBINA, Chief Judge:

Anonymous Plaintiffs–Appellants J, S, B, and V sued Joseph R. Francis and Mantra Films, Inc., MRA Holdings, LLC, and Aero Falcons, LLC—companies owned or controlled by Francis—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. The Plaintiffs filed a motion to maintain their anonymity at trial. Intervenor–Appellee Florida Freedom Newspapers, Incorporated argued in favor of denying the motion, and the Defendants joined the Intervenor's arguments both in the district court and on appeal. The district court denied the motion, but stayed the judgment while the Plaintiffs appealed. For the reasons stated below, we vacate the district court's order.

I.

The Plaintiffs in this action are all women who were under the age of eighteen when the relevant events alleged in the Complaint took place. Joseph Francis is the creator and effective controlling officer of companies—including the three other named defendants in this case—that maintain the “Girls Gone Wild” franchise. Francis has made millions of dollars by going to places crowded with young, enthusiastic, and often-intoxicated women and filming them exposing their breasts, fondling each other, kissing each other, and sometimes engaging in more explicit sexual acts. Francis and his agents typically have the filmed women sign a release form affirming that they are over the age of eighteen and that the Girls Gone Wild franchise can use the footage. He and his companies then edit the films to create short scenes of women in various stages of undress and engaged in different types of sexual activities. Francis and his companies bunch the scenes together on pornographic DVDs that they sell online and through advertisements on television.

The allegations in the Complaint stem from the Defendants' actions in Panama City Beach, Florida, during the springs of 2000, 2002, and 2003. In March of 2000, sisters Plaintiff J, age 13, and Plaintiff S, age 15, were riding in a car along “the strip” in Panama City Beach—a stretch of road near the beach where students on spring break trips often hang out—with a friend and their older sister. At one point, traffic caused them to stop in the middle of the street. Plaintiffs J and S claim that while they were stopped, a man with a video camera approached the car and began encouraging them to remove their tops so he could film them “flashing” their breasts. After a period of such encouragement, Plaintiffs J and S and their female friend briefly removed their tops and flashed their breasts for the camera. The footage of their exhibition ended up in two of the Girls Gone Wild videos, which the Defendants sold as part of their business.¹ They joined this suit for damages caused by the distribution and sale of the footage.

In March of 2002, seventeen-year-old Plaintiff B traveled from Charlotte, North Carolina, to Panama City, Florida, for a spring break trip. On March 31, she and some friends went out to a party where they met some contractors or employees working on behalf of the Girls Gone Wild franchise. The Girls Gone Wild agents invited Plaintiff B and her friends up to a hotel room to continue the party. Plaintiff B alleges that the agents offered her alcoholic drinks—which she claims may have included drugs—and that the drugs and alcohol impaired her judgment and made her susceptible to coercion. She apparently signed a release form falsely stating that she was eighteen and wrote down a false birth date. At some point that evening, employees or contractors working for the Defendants filmed Plaintiff B and a female friend naked and engaging in explicit sexual acts, including manual and oral sex. The Defendants included the footage on two Girls Gone Wild videos that they marketed and sold to the public.² Plaintiff B joined this suit seeking damages for the use of the footage.

In March of 2003, sixteen-year-old Plaintiff V, who lived in the Panama City area, went along with some friends down Front Beach Road in Panama City Beach. The Girls Gone Wild crew was there again, encouraging women to flash their breasts for the camera in exchange for beads, shirts, and similar trinkets. Plaintiff V and her companions first met some Girls Gone Wild employees near a local gas station. One of the employees persuaded two of Plaintiff V's friends to come back with him to a hotel room the company had rented, where Girls Gone Wild employees would film the two girls undressed in the shower in exchange for $100. The girls agreed; Plaintiff V went along with them to the hotel.

Plaintiff V alleges that Joe Francis arrived at the hotel room while her friends were still being filmed in the shower. He introduced himself to Plaintiff V and her two friends who were waiting. Plaintiff V alleges that a few minutes later, Francis physically and verbally coerced Plaintiff V and one of her friends to go into a bedroom, where he forced them to put their hands on his genitals and stimulate him. Plaintiff V alleges that Francis gave her $100 to split with her friend as payment for their sexual encounter with him. ³ She joined this suit for damages stemming from this sexual assault.

The Plaintiffs filed this action in the District Court for the Northern District of Florida on March 20, 2008. They listed only pseudonyms in their Complaint and quickly moved to remain anonymous in the case; the district court granted the motion in an order issued on December 18, 2008. The court expressly noted that it would revisit the issue before trial.

One year later, on December 18, 2009, the Plaintiffs filed a motion and brief to preserve their anonymity throughout the course of the trial. Anticipating the motion, Intervenor–Appellee Florida Freedom Newspapers, Inc. successfully petitioned the court for leave to intervene.

During a teleconference on or around January 19, 2010, the district court notified the parties of its intention to deny the Plaintiffs' motion to remain anonymous at trial. The court invited the Plaintiffs to provide supplemental briefing on the issue. In response, the Plaintiffs filed a supplemental memorandum in support of their motion in which they emphasized that they faced the very real danger of becoming internet sensations permanently identified with the videos in which they appeared. The Plaintiffs clarified that they were not seeking a total ban on the presence of the media in the courtroom. They indicated that press members could attend the trial and report on the case, but could not report any specific information learned in the course of the trial that would reveal the Plaintiffs' identities.

The district court nonetheless formally denied the Plaintiffs' motion to remain anonymous at trial in an order issued on February 5, 2010. In its order, the district court observed that there are both practical and constitutional reasons to keep judicial proceedings open to the public. Weighing the risk that requiring the Plaintiffs to proceed with their suit without anonymity would require them to disclose “information of the utmost intimacy” against the presumption of openness, the district court found the Plaintiffs' case wanting. According to the district court, Plaintiffs S and J's claims stemmed from an incident that lasted “less than a minute” and did not involve “sexual conduct as a matter of law.” [R. 419 at 5–6.] The district court conceded that Plaintiffs B and V would have to disclose information that “may be embarrassing,” but concluded that “casual and voluntary sexual activity is not the type of fundamentally personal issue that warrants the imposition of anonymity like abortion, birth control, or religion.” [ Id.]

The district court bolstered its ruling that none of the Plaintiffs showed they would be forced to disclose “information of the utmost intimacy” by looking at the harms they alleged they would suffer from revealing their identities. The district court found that because the Plaintiffs were no longer minors and the events alleged in the Complaint occurred more than seven years ago, the fact that they were minors at the time was not to be given much weight. [ Id. at 7.] Further, the expert testimony the Plaintiffs presented about the mental and reputational harm they would suffer from having their identities disclosed was “conclusory” and did not provide sufficient evidence of a harm that...