Russe v. Harman

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:21-cv-00270-MR-WCM

RUPA VICKERS RUSSE )

)

Plaintiff, )

) ORDER

v. )

)

CINDIE HARMAN )

)

Defendant. )

_______________________________)

This matter is before the court on Plaintiff’s “Motion to Seal, Motion for

Gag Order, Motion to Proceed Under Anonymity” (the “Motion to Seal,” Doc.

1).

I. Background

Plaintiff Rupa Vickers Russe (“Plaintiff”) filed her Complaint on October

5, 2021. Doc. 3. Plaintiff filed the Motion to Seal and a supporting

Memorandum at the same time. Docs. 1, 2.

On October 7, 2021, Plaintiff filed an “Amendment” to her Memorandum.

Doc. 4.

II. Plaintiff’s Allegations

In summary, Plaintiff alleges that in July 2020 she “gained the Madison

County Democratic Party nomination for, and ran for public office” seeking a

seat on the Madison County Board of Commissioners. She further alleges that

in October and November 2020, she became aware that Defendant Cindie

Harman (“Defendant”) had published false statements about Plaintiff on

Defendant’s public website. She alleges, upon information and belief, that

Defendant’s defamatory statements about Plaintiff have also been shared via

links online through other websites.

Based on these allegations, Plaintiff asserts claims for libel e, libel

, unfair and deceptive trade practices, and intentional infliction of

emotional distress.

III. Discussion

Through the Motion to Seal, Plaintiff requests that the court “issue a

protective order to completely seal this lawsuit, issue a protective Gag Order

for all participants and Attorneys in this matter, and for this case to proceed

under anonymity… until after a final decision has been rendered by this court.”

Doc. 1.

In support of this request, Plaintiff states that Defendant has a history

of engaging in extreme and outrageous conduct and that Defendant has

engaged in numerous improper acts and made numerous improper and false

statements about Plaintiff. Plaintiff states that while she “is not concerned

with criticism or annoyance, she is exclusively concerned with the injury she,

her business, or clients may suffer if [her] motion is denied.” Doc. 2 at 9. She

further contends that this case constitutes “a unique sensitive private dispute

about which the public will gain no benefit in being able to participate while

the adjudication of this matter takes place, but [that] great harm to Plaintiff,

her business and her innocent non-party clients could occur if the adjudication

occurs under the unnecessary public spectacle that Defendant is likely to bring

to this proceeding.” Id. at 9.

Plaintiff further states that she “reasonably fears she will experience

violence, harassment, humiliation or threats by Defendant or by one of the

Defendant’s supporters….” Id. at 15.

A. Request for Sealing

As the Local Rules of this district indicate, “there is a presumption under

applicable common law and the First Amendment that materials filed in this

Court will be filed unsealed.” LCvR 6.1(a).

The Motion to Seal discusses Plaintiff’s interest in protecting her safety

and reputation. However, the public’s interest in this litigation is also

significant, given that Plaintiff’s claims concern statements allegedly made by

Defendant about Plaintiff and in opposition to Plaintiff’s political candidacy.

Further, Plaintiff’s request for sealing is not narrowly tailored but

instead seeks the sealing of the entire case. That is, Plaintiff is asking for this

litigation to be conducted entirely in secret, with no information being

available to the public. The undersigned does not find that sealing on such a

sweeping scale is warranted. See Nelson v. Sam's Club, No. 4:10-CV-03020-

RBH, 2012 WL 488867, at *1 (D.S.C. Feb. 15, 2012) (request to seal entire case

would “infringe too extensively on the public right to access court records”); see

also Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (“The party

seeking to seal any part of a judicial record bears the heavy burden of showing

that ‘the material is the kind of information that courts will protect’ and that

‘disclosure will work a clearly defined and serious injury to the party seeking

closure.’ A party who seeks to seal an record faces an even heavier

burden.”) (citation omitted, emphasis in the original).

Proceeding with this matter entirely under seal could also create

administrative burdens and other issues for the Clerk of Court’s office, counsel,

and the parties themselves.

To the extent either party believes it is necessary for specific information

or filings to be sealed, motions seeking the sealing of those documents can be

made and considered on an individual basis, as contemplated by the Local

Rules.

B. Request for a “Gag Order”

The Fourth Circuit has explained the principles for considering a “gag

order” as follows:

Even among First Amendment claims, gag orders

warrant a most rigorous form of review because they

rest at the intersection of two disfavored forms of

expressive limitations: prior restraints and content-

based restrictions. Like all “court orders that actually

forbid speech activities,” ,

509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441

(1993), gag orders are prior restraints. Prior restraints

bear “a heavy presumption against [their]

constitutional validity.”

, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584

(1963). Prior restraints upend core First Amendment

principles because “a free society prefers to punish the

few who abuse rights of speech after they break the

law [rather] than to throttle them and all others

beforehand.” , 420 U.S.

546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).

Similarly, gag orders are presumptively

unconstitutional because they are content based.

,--- U.S. -

--, 138 S.Ct. 2361, 2371, 201 L.Ed.2d 835 (2018)

(presumption against content-based restraints).

Content-based restrictions target “particular speech

because of the topic discussed or the idea or message

expressed.” , --- U.S. ---, 135

S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015). Gag orders

inherently target speech relating to pending litigation,

a topic right at the core of public and community life.

But the “government has no power to restrict

expression because of its message, its ideas, its subject

matter, or its content.” , 535 U.S.

564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)

(internal quotation marks omitted).

In light of these twin presumptions, gag orders must

survive strict scrutiny. , 135 S.Ct. at 2226 (strict

scrutiny for content-based restrictions). We review

orders limiting First Amendment rights

. , 882 F.2d at 852. And we

require trial courts to support them with reasoning

“specific enough to enable the reviewing court to

determine” whether the order survives rigorous

scrutiny. , 807 F.2d at 391; see

, 917 F.2d at 129 (“[W]e have required

specific reasons and findings on the record, because

without such findings, review is difficult.”

(internal citation omitted)).

In re Murphy-Brown, LLC, 907 F.3d 788, 796–97 (4th

Cir. 2018).

Here, Plaintiff proposes that the following “gag order” be entered:

IT IS HEREBY ORDERED ADJUDGED AND

DECREED that both Defendant and Plaintiff shall be

enjoined from making or causing to be made any

statements about the other party, party’s business or

about this lawsuit, or Attorneys representing clients

in this matter, on any website, social media platform,

chat-group, physical sign or through electronic or

paper written message to any third-parties, including

news organizations.

Doc. 1-2.

Plaintiff’s request is deficient for a number of reasons. First, Plaintiff

fails to explain how the requested order would be an appropriate limitation on

Defendant’s First Amendment rights. This point is underscored by the fact that

the underlying dispute involves alleged speech about Plaintiff in the context of

a political campaign.

Second, the need for such an order is not apparent on the current record.

Plaintiff has initiated litigation and has alleged wrongful conduct by

Defendant, who will have an opportunity to respond to Plaintiff’s allegations

in an orderly manner within the confines of the judicial process. The

undersigned is not persuaded that, based on the current record, it should

immediately be presumed that Defendant or others who may oppose Plaintiff’s

political views will engage in the type of conduct that Plaintiff fears.

Third, the proposed order is not narrowly tailored. “Strict scrutiny also

demands that First Amendment restraints be ‘narrowly tailored’ to serve their

intended purpose.” In re Murphy-Brown, LLC, 907 F.3d 788, 799 (4th Cir.

2018). Plaintiff’s proposed “gag order,” however, would impose sweeping and

blanket restrictions. By way of example, Plaintiff’s proposed order prohibiting

a party from making “any statements about the other party, party’s business

or about this lawsuit” would prevent not only speech that Plaintiff may find

harassing, but also speech that is factually correct, routine, and unremarkable.

C. Request to Proceed Anonymously

Though Plaintiff has filed suit in her own name, she requests leave for

“this case to proceed under anonymity,” presumably with the parties being

referred to as “Plaintiff” and “Defendant” (according to the draft orders she has

submitted) and not by their actual names.

The analysis for considering whether to grant leave for a party to appear

anonymously was explained recently by Chief Judge Reidinger as follows:

The Federal Rules of Civil Procedure requires that a

civil complaint set forth the “name[s] [of] all the

parties.” Fed. R. Civ. P. 10(a). The Fourth Circuit has

recognized that “in exceptional circumstances,

compelling concerns relating to personal privacy or

confidentiality may warrant some degree

of anonymity in judicial proceedings, including use of

a pseudonym.” Doe v. Public Citizen, 749 F.3d 246, 273

(4th Cir. 2014). In weighing whether to permit a party

to proceed pseudonymously, the court considers

multiple factors including (1) the justification asserted

by the requesting party and whether it is to “preserve

privacy in a matter of sensitive and highly personal

nature” or “merely to avoid the annoyance and

criticism that may attend any litigation;” (2) “risk of

retaliatory physical or mental harm” because of

identification; (3) the age of the party; (4) “whether the

action is against a governmental or private party;”

and, (5) “the risk of unfairness to the opposing

party.” Id. (quoting James v. Jacobson, 6 F.3d 233, 238

(4th Cir. 1993)). Additionally, because the use of

pseudonyms in litigation undermines the public’s

right of access to judicial proceedings, “when a party

seeks to litigate under a pseudonym, a district court

has an independent obligation to ensure that

extraordinary circumstances support such a request

by balancing the party’s stated interest

in anonymity against the public’s interest in openness

and any prejudice that anonymity would pose to the

opposing party.” Id., at 274.

JOHN DOE v. LEES-McRAE COLLEGE, et al., No.

1:20-CV-00105-MR, 2021 WL 2673050, at *6

(W.D.N.C. June 29, 2021).

In this case, the relevant factors counsel strongly against allowing the

Motion.

Though all litigants have a legitimate interest in their own physical and

mental safety, some amount of criticism and annoyance often attends the

litigation process. Plaintiff is an adult who chose to enter the political arena

and now to file this litigation, asserting claims against Defendant as a result

of Defendant’s alleged statements and activities concerning Plaintiff and

Plaintiff’s political campaign.

IT IS THEREFORE ORDERED THAT Plaintiff's “Motion to Seal,

Motion for Gag Order, Motion to Proceed Under Anonymity” (Doc. 1) is

DENIED.

The Clerk is respectfully DIRECTED to UNSEAL this matter.

Signed: October 28, 2021

oJ

W. Carleton Metcalf / Cy.

United States Magistrate Judge alls J