Doe 1 et al v. Strange et al(JOINT ASSIGN)

Filing 55

MEMORANDUM OPINION AND ORDER: It is ORDERED that Plaintiffs' 41 Motion to Proceed Anonymously is GRANTED to the extent that Plaintiffs may withhold their true identities from the public and proceed with their claims as John Doe 1, John Doe 3, John Doe 7, and John Doe 9. It is further ORDERED that Plaintiffs' initial 2 Motion to Proceed Anonymously is DENIED as moot. The parties are DIRECTED to confer and, if possible, file a joint motion for protective order that satisfies Plaintiffs' confidentiality concerns. Signed by Chief Judge William Keith Watkins on 3/24/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOHN DOE 1, et al.,
Plaintiffs,
v.
LUTHER STRANGE, III,
Attorney General of the State of
Alabama in his official capacity, et
al.,
Defendants.

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CASE NO. 2:15-CV-606-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ Supplemental Motion and Brief to Proceed
Anonymously. (Doc. # 41.)

Defendants filed a response (Doc. # 45), which

incorporates their earlier arguments (Doc. # 28) in response to Plaintiffs’ initial
motion to proceed anonymously (Doc. # 2). Upon consideration of the parties’
arguments and the relevant authority, Plaintiffs’ motion will be granted.
I. LEGAL STANDARD
Ordinarily, litigants must disclose their identities when they initiate civil
proceedings in federal court. Fed. R. Civ. P. 10(a). Where party can demonstrate
that his substantial privacy right outweighs the presumption of open judicial
proceedings, however, he may proceed anonymously. Plaintiff B v. Francis, 631
F.3d 1310, 1315–16 (11th Cir. 2011).

Resolving a motion to proceed

anonymously requires examination of all the circumstances surrounding the case.
Id. at 1316. The court should consider, among other things, (1) whether the
plaintiffs are seeking anonymity challenging governmental activity, (2) whether
the plaintiffs will be required to disclose information of the utmost intimacy, and
(3) whether the plaintiffs will be compelled to admit that they intend to engage in
illegal conduct. Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (citing S.
Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707,
712 (5th Cir. 1979)).
II. DISCUSSION
A full treatment of circumstances giving rise to this case and the claims
being raised can be found in the court’s recent memorandum opinion and order
granting in part and denying in part Defendants’ motion to dismiss. (Doc. # 51.)
Briefly, this action presents constitutional challenges to the Alabama Sex Offender
Registration and Community Notification Act (“ASORCNA”).

The legal

principles governing Plaintiffs’ request will be applied to the particular
circumstances of the case. The traditional factors restated in Frank will first be
addressed. 951 F.2d at 323. Additional factors germane to the case will also be
considered. Plaintiffs are ultimately entitled to proceed anonymously.
First, Plaintiffs are challenging governmental activity.

Specifically,

Plaintiffs have challenged Alabama’s implementation and enforcement of
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ASORCNA’s residency, employment, and identification restrictions.

But the

significance of this fact should not be overstated. Where the plaintiffs bring an
action against private individuals, the defendants’ interest in identifying the
plaintiffs carries more weight. Wynne & Jaffe, 599 F.2d at 713. This does not
mean, however, that the fact the challenged activity is attributable to the
government necessarily puts a thumb on the scale in favor of anonymity. Frank,
951 F.2d at 324 (“[T]he fact that Doe is suing the Postal Service does not weigh in
favor of granting Doe’s request for anonymity.”). That Plaintiffs are challenging
governmental action here merely means that Defendants do not operate under the
same threat of reputational damage that private defendants face. See id.
Second, counseling in favor of anonymity is the fact that Plaintiffs will be
required to disclose some intimate information. It is true, as Defendants contend,
that ASORCNA registrant information is widely available to the public. See Ala.
Code § 15-20A-8. According to Defendants, the fact that Plaintiffs’ information is
already available means that they have no privacy interest in protecting their
identities in relation to this suit. What Defendants fail to appreciate, however, is
the station this public information occupies in the context of this lawsuit. As
anonymous litigants, Plaintiffs will be able to proceed with their challenge free
from fear that members of the general public will use the ASORCNA database to
track them down individually. Though their information is generally available via
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the ASORCNA public registry, the general public is currently unable to identify
the particular registrants who brought this action challenging the statutory scheme.
Citing hostility toward sex offenders,1 Plaintiffs contend that they fear that
members of the public might seek to retaliate against them for bringing this action.
If they are forced to disclose their names in connection with this action, Plaintiffs
would reveal more than the information that is already available via the registry.
They would be forced to publicly identify themselves as the particular ASORCNA
registrants challenging the statutory scheme, allowing those citizens who would do
harm to put names with faces and addresses. See id. (providing that registrants
must disclose names, addresses, license plate numbers, photographs, physical
descriptions, and criminal histories). It is one thing to leave the public guessing as
to which registrants dared to challenge a popular statutory scheme by bringing this
suit. It is quite another thing to point the public to intimate information they
otherwise would not be able to associate with the litigants in this suit. In this
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In their motion, Plaintiffs offered evidence of animosity toward sex offenders by way of
online newspaper articles and public comments to one of the articles. (See Doc. # 41, at 3.)
Defendants object that this evidence is hearsay, but then attempt to rebut it by reference to other
online newspaper articles and related comments, which are also hearsay. (See Doc. # 28, at 12.)
Regardless of whether either party has evidence to prove that sex offenders face animosity from
the general public, in light of the fact that the ASORCNA registry mines a substantial amount of
personal data, Plaintiffs have legitimate concerns that revealing their identities will open them to
the risk of “harassment and vigilantism.” (Doc. # 41, at 4.)
These concerns cannot be dismissed as unfounded, especially when considered in
conjunction with the substantial social stigma associated with sex offender status. ASORCNA
stigmatizes registrants by its own terms, requiring them to carry branded identification cards
holding them out to the public as “criminal sex offenders.” See Ala. Code § 15-20A-18;
McGuire v. Strange, 83 F. Supp. 3d 1231, 1253–54 (M.D. Ala. 2015) (describing the humiliation
associated with presentation of ASORCNA’s branded identification in public settings).
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sense, denying the relief Plaintiffs request forces them to disclose intimate
information. See Frank, 951 F.3d at 324.
Third, weighing in favor of anonymity is the fact that Plaintiffs may be
compelled to admit their intention to engage in illegal activity.

As part of

Plaintiffs’ claims, they allege that ASORCNA is unconstitutionally vague. They
are unsure, under the language of various ASORCNA provisions, whether certain
activities in which they would like to engage are in fact prohibited. By revealing
their identities, Plaintiffs make themselves vulnerable to criminal prosecution for
activities in which they have expressed interest in engaging. And ASORCNA’s
provisions are enforceable under penalty of felony conviction. See, e.g., Ala. Code
§ 15-20A-13(g). Because Plaintiffs have alleged that they would like to engage in
certain behaviors that may be considered proscribed under ASORCNA’s vague
provisions, they would benefit from being allowed to proceed anonymously in this
case. See Frank, 951 F.3d at 324.
Fourth, certain additional circumstances counsel in favor of allowing
Plaintiffs to proceed anonymously. By virtue of their ASORCNA registrant status,
Plaintiffs experience difficulty securing places of residency and employment
opportunities. Having their identities revealed in connection with this litigation
could exacerbate these already serious issues. Plaintiffs further note the stigma
associated with ASORCNA registrant status, a stigma that ventures beyond the
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realm of mere personal embarrassment. See id. (noting that courts have permitted
plaintiffs to proceed anonymously in cases involving stigmatic issues such as
mental illness, homosexuality, and transsexuality).
Finally, granting the relief Plaintiffs request will not be unfair to Defendants.
In their motion, Plaintiffs represent that they are willing to disclose their names to
Defendants so long as documents containing this information are filed under seal.
A protective order allowing Defendants to access this information without
disseminating it publicly or publicly associating the information with the particular
offender will protect Plaintiffs’ substantial privacy interests while allowing
Defendants to efficiently defend against Plaintiffs’ claims.
Based on all the circumstances, the court finds that Plaintiffs’ substantial
privacy right outweighs the presumption of open judicial proceedings.

Francis,

631 F.3d at 1315–16. Plaintiffs’ motion will be granted, and the parties will be
afforded an opportunity to fashion an appropriate protective order in accordance
with Rule 26(c) of the Federal Rules of Civil Procedure.
III. CONCLUSION
Accordingly, it is ORDERED that Plaintiffs’ motion to proceed
anonymously (Doc. # 41) is GRANTED to the extent that Plaintiffs may withhold
their true identities from the public and proceed with their claims as John Doe 1,
John Doe 3, John Doe 7, and John Doe 9. It is further ORDERED that Plaintiffs’
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initial motion to proceed anonymously (Doc. # 2) is DENIED as moot. The parties
are DIRECTED to confer and, if possible, file a joint motion for protective order
that satisfies Plaintiffs’ confidentiality concerns.
DONE this 24th day of March, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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