*1 J, S, Plaintiff Plaintiff (quoting at 1267 Strickland Id. relevant.” V, Plaintiffs-Appellants, Birming- & Bd. Works Sewer v. Water (11th Cir.2001)). ham, 1199, 1208 239 F.3d Indeed, element is the the causal nexus FRANCIS, Holdings, Joseph R. MRA plain- a retaliation burden” that “increased Films, LLC, Inc., Fal- Mantra Aero plaintiff an does faces that interference tiff cons, LLC, Defendants-Appellees. Strickland, (quoting at not. Id. 1207). Thus, the court cor- 239 F.3d Institute, National Victim Law Crime its a causal nexus from rectly excluded Newspaper Southern Publisher’s of the elements of interference. recitation Association, Amicus Curiae. However, its BSO was entitled raise No. 10-10664. reasons for termination as alleged lawful liability. affirmative defense to If an an Appeals, United States Court of that it would have employer demonstrates Eleventh Circuit. an discharged employee “for reason Feb. leave, unrelated the FMLA wholly under the employer is liable” FMLA damages failure to reinstate. 1208;
Strickland, 239 see Although the court
C.F.R. 825.216. jury that this
here instructed the defense only claim, to the retaliation
applied give conjunction
failure to the defense claim is harmless interference jury rejected specifically
because special in its verdict.
defense
Accordingly, judgment we affirm all on claims. verdict
AFFIRMED. B, Plaintiff-Appellant,
PLAINTIFF Newspapers,
Florida Freedom
Inc., Intervenor-Appellee, *2 Dent,
Thomas G. Pontikes, Rachael G. Larry Selander, Morris, LLP, Duane Chi- IL, cago, III, Robert A. Fleming, D. Ross Jr., McCloy, Harrison, Sale, McCloy, Dun- Jackson, Chartered, can & City, Panama FL, Wayne Audrey Mack, Morris, Duane LLP, PA, Philadelphia, Small, Daniel I. Morris, LLP, Miami, Duane FL, for Plain- tiffs-Appellants. Bussian, III,
John A. Bussian Law Firm, PLLC, NC, Raleigh, Charles F. Marshall, McLendon, Brooks Pierce Ra- NC, leigh, for Intervenor-Appellee. Thornton, Glenda Lavon Frederick Leo Bateman, Jr., PA, Bateman Harken Talla- hassee, FL, for Defendants-Appellees. Higby, Clifford C. Bryant & Higby, Chartered, City, FL, Panama Christina Crozier, Jeffery Nobles, Boone, Haynes T. Houston, TX, Bussian, III, John A. Bus- Firm, PLLC, sian NC, Law Raleighm Coble, has made of dollars Pierce McLen- Francis millions Brooks E. Charles young, en- going places crowded with NC, don, for Amici Curiae. Raleigh, thusiastic, women and often-intoxicated *3 breasts, filming them their exposing and other, other, kissing each fondling each explicit in more engaging sometimes and DUBINA, Judge, Before Chief agents typi- Francis his sexual acts. and ANDERSON, Judge, and Circuit sign the filmed a release cally have women MOODY,* Judge. District age affirming they are over form and that the Gone Wild eighteen of Girls DUBINA, Judge: Chief He and his footage. franchise can use J, S, Plaintiffs-Appellants Anonymous to create then edit the films companies and R. Francis B, Joseph sued and V stages of women in of short scenes various LLC, Inc., Films, Holdings, MRA Mantra engaged types and in different undress Falcons, companies and Aero LLC— compa- activities. Francis and his sexual dam- by or controlled Francis —for owned porno- together the scenes on nies bunch stemming from films the Defendants and sell online graphic DYDs Plaintiffs, un- in while which the produced television. through advertisements on their age exposed of eighteen, der the stem allegations Complaint sexually explicit engaged and breasts Panama actions in from Defendants’ motion to main- The Plaintiffs filed a acts. Beach, Florida, springs of City during the trial. Intervenor- tain their 2000, 2000, 2002, and In March of 2003. Newspapers, Florida Appellee Freedom S, J, Plaintiff age sisters Plaintiff denying argued in favor of Incorporated riding along a car “the age motion, joined and the Defendants in Panama stretch strip” City Beach—a in the district arguments Intervenor’s both near the beach students on road where appeal. and on The district spring trips hang break often out—with motion, judg- stayed but denied point, and their older At one friend sister. appealed. For ment while them in the middle of stop traffic caused below, vacate the the reasons stated we claim the street. Plaintiffs J S court’s order. they were a man with stopped, while approached the car and be- video camera I. encouraging to remove gan them “flashing” film are all wom- so he could tops The Plaintiffs this action period encourage- After a age eighteen were under the breasts. of such en who ment, female in the Plaintiffs J and their alleged the relevant events and S when briefly tops Francis is removed their Complaint place. Joseph took friend controlling officer their breasts for the camera. the creator and effective flashed inup two the three other of their exhibition ended companies including — videos, main- Gone Wild which named defendants in this case—that of the Girls part franchise. sold as of their business.1 tain the “Girls Wild” Defendants Gone * Jr., 2257(f) selling depictions producing for Moody, James S. United States Honorable Judge keeping of Flori- sexually explicit District the Middle District without conduct da, designation. sitting by age records of proper and identification Films, performers failing to affix statement Inc. September Mantra [R. found. violating stating U.S.C. where the pled guilty to ten records counts of They joined damages encouraging this suit caused women to flash their breasts sale of footage. the distribution and beads, for the camera exchange shirts, and similar trinkets. Plaintiff V 2002, seventeen-year-old
In March of and her companions first met some Girls Charlotte, traveled from North Gone Wild near employees a local gas sta- Carolina, Florida, City, to Panama for a tion. One of employees persuaded two March spring trip. break On she and of Plaintiff V’s friends come back with to a party some friends went out where him to a hotel room the company had they met some contractors or employees rented, where Gone employees Girls Wild working on behalf of the Girls Gone Wild *4 would film the two girls undressed in the Gone agents franchise. The Girls Wild shower in exchange girls The $100. B her up invited Plaintiff friends to a agreed; Plaintiff went along V with party. hotel room to Plaintiff continue to the hotel. alleges B that offered agents her alco- holic drinks —which she claims have Plaintiff V that alleges Joe Francis ar- drugs drugs included that —and rived at the hotel room her while friends judgment impaired alcohol her and made were still being filmed the shower. He susceptible apparent- her to coercion. She introduced himself to Plaintiff V and her ly signed falsely a release form stating two friends who waiting. Plaintiff V eighteen that she was and wrote down a alleges later, that a few minutes Francis point false birth date. At some eve- physically verbally coerced Plaintiff V ning, employees or working contractors and one go of her friends to into a bed- B the Defendants filmed Plaintiff and a room, where he put forced them to engaging female friend naked and ex- genitals hands on his and stimulate him. acts, including sexual plicit manual and Plaintiff alleges V gave that Francis her sex. oral The Defendants included the to split with her payment $100 friend as footage on two Girls Gone Wild videos that for their sexual with encounter him.3 She public.2 marketed and sold joined damages this suit for stemming joined B suit seeking this dam- from' this sexual assault. footage. for the use of the The 2003, sixteen-year-old In March Plain- filed action in the V, District City area, tiff who lived in Panama Court for the Northern District of 20, along friends Florida on They went some down Front March 2008. listed City only pseudonyms Beach Road Panama Beach. in their Complaint The quickly Gone Wild was again, anonymous Girls crew there moved to remain (Exhibit N) Agree- Agreement specifically 25-40.] 414-7 at The Plea cis’s Plea refers to the ment Gone names several Girls Wild videos footage use of the of Plaintiff B as the factual charges which served as the for the basis charges guilty plea. basis for the and the [Id. agreed longer which Mantra Films no sell. September 6.] at Mantra Films’s 2006 Plea Appendix Although 39-40.] [Id. at the Plea Agreement footage also refers Plaintiff B’s Agreement does not mention Plaintiffs J and company’s guilty as the plea. basis for the S, containing the films of them (Exhibit N) A, Appendix p. [R. 414-7 at are on the list. 2008, pled 3. In March of Francis no contest 2006, September Joseph Francis to one count abuse and of child two counts of signed Agreement pled guilty a Plea where he prostitution in state Florida court as a result violating to two counts of 18 U.S.C. of his V encounter with Plaintiff and her failing keep age and identification rec- (Exhibit O) friend. [R. 2-3.] 414-8 at sexually depicting explicit ords for films con- M) (Exhibit duct. [R. 2-25.] Fran- than a minute” an incident that lasted “less case; granted the motion the district 18, 2008. and did not involve “sexual conduct as a in an on December order issued it would 5-6.] noted that matter of 419 at The expressly [R. law.” trial. that Plaintiffs B revisit the issue before district court conceded and V would have to disclose information later, on December year One “may but embarrassing,” conclud- a motion and brief filed voluntary sexual ed “casual and activi- anonymity throughout preserve their fundamentally person- ty type is not Anticipating the mo- trial. course of the imposition al issue that warrants tion, Florida Free- Intervenor-Appellee abortion, control, birth or like successfully peti- Inc. Newspapers, dom religion.” [Id.] for leave to intervene. the court tioned on or around During a teleconference ruling district court bolstered court notified January the district that none of the Plaintiffs showed deny the its intention to parties would be to disclose “information of forced anonymous to remain motion Plaintiffs’ by looking *5 intimacy” the utmost at the the Plaintiffs to trial. The court invited they they harms would suffer from alleged briefing provide on the issue. supplemental revealing identities. The district supple- In Plaintiffs a the filed response, court that because the Plaintiffs found support of their mental memorandum no and the longer were minors events they they emphasized motion in that which alleged in occurred Complaint the more danger becoming real very faced the years ago, they than seven the fact that permanently internet sensations identified was not were minors at the time to be they in which appeared. videos the Further, given weight. 7.] much [Id. that not they clarified Plaintiffs expert testimony pre- the presence on the of the seeking a total ban reputational sented about the mental and indicated They media in the courtroom. having harm would suffer from that press members could attend the “conclusory” identities disclosed was case, the not re- report on but could provide a did sufficient evidence of port any specific information learned outweigh harm that the presump- would of the trial would reveal course openness tion of in court. Fi- [Id. the Plaintiffs’ identities. nally, the held that the district court Plain- suffer formally tiffs’ claims that would violence The district court nonetheless filing the suit motion remain retaliation for were not denied the Plaintiffs’ to anonymi- degree in an on of sufficient warrant anonymous at trial order issued this, ty. all 5, order, light In district February [Id.] the district court Plaintiffs did not prac- that there held that the over- observed are both presumption openness tical come the in court keep and constitutional reasons to anony- to remain judicial open to and denied their motion proceedings public. mous. the Plain- Weighing requiring the risk
tiffs with their suit without require would them to disclose II. intimacy” “information of the utmost A order an
against denying district court’s presumption openness, onymity appealable a final party found the case for a is district court Plaintiffs’ court, order doctrine. According to the order under the collateral wanting. (5th 180, v. 183 Stegall, claims from Doe 653 F.2d Cir. S and J’s stemmed
1315
subject
Aug.1981).4
appel-
A
Thus we have
to the district court’s consideration
Unit
jurisdiction
sought
late
under 28 U.S.C.
1291
whether the restrictions
would
be an
prior
unconstitutional
restraint on
(2010).
protected
also
Plain-
speech. We
remand
applies
This court
the abuse-of-
request
anonym-
tiffs J and
maintain
S’s
a district
reviewing
discretion standard
ity for
light
reconsideration in
of the issues
party’s
order
motion to
denying
court’s
opinion,
subject
addressed in this
also
Frank,
proceed anonymously. Doe v.
951
posed
limitations
First Amend-
(11th Cir.1992)
320,
(citing
323
Lind
F.2d
speech.
ment on
on
prior restraints
Dayton-Hudson
592
sey
Corp.,
v.
F.2d
(10th Cir.),
denied,
1118, 1125
cert.
444
Federal Rule of Civil Procedure
U.S.
S.Ct.
openness
(S.D.N.Y.1996)
(denying mo-
Frank,
(quoting Stegall,
at
360-62
F.2d
186).
by
suing hip-hop
a
artist for
evaluating
plaintiff
tion
whether
653 F.2d at
requesting
a
assault
remain
that he has such
brutal sexual
has
plaintiff
shown
anonymous).
carefully review
right, the court “should
given
case
circumstances of
all the
Stegall
After
clarified that the
customary prac-
then decide whether
only
was
the first
three-part SMU test
identity
disclosing
plaintiffs
tice of
a plain-
whether to let
step
evaluating
con-
plaintiffs privacy
yield to
should
anonymously,
courts
tiff
(citing
Id.
S. Methodist Univ.
cerns.”
analyz-
in
have considered other contexts
Wynne
Law
v.
Women
Students
Ass’n given
all
of a
case.
ing
the circumstances
Cir.1979)
(5th
707, 713
Jaffe,
&
599 F.2d
have
at factors such as
Courts
looked
SMU]).
[hereinafter,
minors,
plaintiffs
Stegall,
whether the
were threat-
653 F.2d
whether
step
analyzing plain
first
physical
by
or
harm
ened with violence
privacy right
claim a substantial
tiffs
names, id.,
own
proceeding
analyzed
three factors
to look at the
anonymity posed
unique
whether their
(re
Stegall,
F.2d at 185
SMU. See
threat of fundamental unfairness to
test). First, are the
stating
plaintiffs
SMU,
See
F.2d
defendant.
challenging govern
seeking anonymity
Second,
Here,
will
be re
from the record that
activity?
mental
we conclude
ut
discretion
quired to
information of the
the district
abused its
disclose
Third,
“failing],
attempting
to exercise
intimacy?
plaintiffs
[its]
will
most
discretion, adequately
to take into account
compelled
to admit their intention
judicially recognized
constraining
and thus risk
engage
illegal conduct
factors
Jacobson, 6
prosecution?
its exercise.” James v.
criminal
(4th Cir.1993);
also Moses
see
only
of the
relevant consideration
Mercury
Hosp.
H. Cone Mem’l.
Constr.
*7
test
three-part SMU
here
the second
927, 938-39,
1, 19, 103
Corp., 460 U.S.
S.Ct.
plaintiffs ano
question:
denying
would
the
(1983) (“[A
765
court’s]
74 L.Ed.2d
district
require
nymity
them to disclose
must
under the
discretion
be exercised
“in
intimacy?
utmost
information of
prescribed by this
relevant
standard
intimacy”
formation of utmost
standard
court.”). court failed to take
applies
involving
such as
cases
issues
allegations
by
into
the actual
made
account
abortion, Roe v. Aware
Center
Woman
the Plaintiffs —as evident in its miseharac
Inc.,
(11th
Choice,
685
Cir.
253
of the Plaintiffs’ conduct
“ca
terization
as
2001),
prayer
personal religious
and
and
voluntary”
sual and
failed
ade
—and
beliefs, Stegall,
at 186.
the
653 F.2d
On
quately consider the Plaintiffs’ extensive
hand,
the
other
courts have often denied
scope
they
harm
evidence about the
of
protection
of
cases where
they
reveal their
faced if
were forced to
assault,
when
allege sexual
even
plaintiffs
identities.
identity
the
cause
revealing
plaintiffs
First,
gave inadequate
her
the district court
personal
to “suffer some
embarrass
Frank,
degree
intimacy
of
ment.” Doe v.
951 F.2d
324 consideration
(11th
see,
Rio,
Cir.1992);
As the
testimony
Doe v. Del
Plaintiffs’
would reach.
e.g.,
“
(S.D.N.Y.2006)
SMU,
‘Where the
241 F.R.D.
Fifth Circuit noted in
159-62
issues involved are matters of
sensitive
(holding
plaintiffs alleging
sexual
by
nature’ ...
normal
police
highly personal
abuse
officer could not
disclosing
parties’
of
practice
identities
their conduct as being “casual and volun-
‘yields
protecting
tary.”
to a
in a
policy
privacy
alleges
the Complaint
”
very private
filming. pletely disregarded expert’s one of their Y, testimony
As for psychological Plaintiffs we conclude on the damage of from the record that the being district a “slut” labeled and dismissed testi- by mischaracterizing abused its discretion mony expert from the other clinical —a 1318 footage seventeen-year-old of Lane flash- and evaluat- who interviewed
psychologist pri- have her still available from B, ing seems to breasts —is the one who ed Plaintiff at public [Id. 13.] from disclo- vate sellers on Amazon.com. injury of the most risk requirement The district court’s for “conclusory.” [R. of her name—as sure Further, failed Plaintiffs to in their own names district court at 419 effectively price a similar on their places of what comprehension its to demonstrate compensated inju- for abilities to be the Plaintiffs. exactly at stake for is subject any being ries: a lifetime of convincing case a put had on Plaintiffs nudi- identified, shopper’s underage online desire for that, they perma- will being certainly cir- ty. This of “all the part is containing nently with the videos be linked Frank, of this F.2d least, cumstances” case. very At the of them. footage at 323.5 online as websites such IMBD.com—an that has encyclopedia of movies and actors light evidentiary In con- of serious prob- millions each month—will of visitors that the court failed to siderations these ably list Plaintiffs as “stars” of ar- assign proper weight, the Intervenors’ avail- freely movies are still videos. These arguments lack of all guments —are —and through like purchase for retailers able oral telling. pressed the more When entering Plain- Anyone Amazon.com. identify harm argument single specific engine tiffs’ names into an online search which befall Florida Freedom would articles containing will find several links Newspapers of allowing as result appearance the videos. discussing their proceed anonymously, Plaintiffs to counsel rigor- an produce could answer. The scenario, voy- an In a audience worse ous test that the Fifth Circuit Court of consumers, eurs, pedo- pornographic Appeals adopted in F.2d at Stegall, 653 heavy will create a demand these philes for SMU, 712-13, links, videos, pictures, knowing designed weigh openness that need easy way explic- provide an to obtain some against anonymity genuine needs minors. Girls images it sexual general in a case like this. A arise Lane, Gone Wild cameras filmed Veronica convincing plea “openness” is not Orlando, seventeen-year-old girl from light strong evidence Florida, flashing driving her breasts while presented of need maintain have City. strip down Panama After anonymity. into way made two different videos, Lane in her Girls Gone Wild sued did Although the Defendants not brief com- privacy solely name for invasion of the issue on the own and instead relied Briefs, image. unlikely misappropriation highly mercial her Intervenor’s it is LLC, Holdings, granting could Lane v. MRA show (M.D.Fla.2002). re- cause F.Supp.2d As a at trial would identity, revealing any pled Lane has serious harm. Francis sult her permanently guilty charges been the IMBD. criminal as the result identified *9 V, Francis com of the Gone his conduct with Plaintiff and database one Girls 17-year- and Mantra Films have admitted to violat- Wild movies as “Veronica Lane: (Exhib- the public ing selling old federal law [R. breast-flasher.” A) B, J, are including The and The Defendants it S. movie— acknowledged argu- be im- names would not associated with the 5. The Plaintiffs at oral by proceeding anonymously, in DVDs are sold and child ment that identify damages pornographers their could not them. limit their available because aware of the Plaintiffs’ identities and thus whether granting anonymity under conducting from a full are not barred terms the Plaintiffs requested have would in range discovery building defense impermissible constitute an prior restraint Accordingly, for trial. we conclude that under the First Amendment.
none of normal harms threatened to VACATED and REMANDED. plaintiffs proceed anony- defendants when mously present are this case. MOODY, Judge, District concurring in give
The court due district failed to con- part dissenting part: and sideration to the concerns the Plaintiffs I agree the majority that Plaintiffs being maintain raised about forced to the B and have V should been to pro- allowed suits in own their names. Justice should ceed I anonymously. as to dissent Plain- carry high price, and according- such tiffs J and I S because conclude the trial ly we vacate the district court’s order. On judge did not abuse his discretion re- remand, we direct court district to gard to them. granting enter an order the motion to re- Initially, court allowed Plaintiffs V, main anonymous Plaintiffs to anonymously to protect their subject posed by to the limitations public. identities from the Their names First As Amendment. for Plaintiffs J and provided to Defendants and full dis- S, we remand motion to remain anon- covery was allowed. The trial court stated ymous for the district court’s reconsidera- the issue would revisited to prior trial. tion in light opin- discussion this trial, Shortly sought before Plaintiffs to remand, ion. On district has the trial, extend their anonymity through grant discretion to motion limit the parties courtroom to essential S, deny it appropriate J and to after recon- press during testimony, the testimo- sideration, grant or to it in part pro- ny of revealing identifying witnesses infor- vide some intermediate means for main- mation, viewing and the of the films at degree taining anonymity, some such as issue. It apparent is from the trial court’s allowing to maintain pseudonyms but order denying request it had permitting public access to the courtroom. grave closing concern about the courtroom to the public during any portion the trial
IV. proceedings.1 The trial judge discussed at also Intervenors claim that length the reluctance of courts close sought ability limitations on the press’s trials from public scrutiny. But closing cover prior the trial constitute a restraint only the courtroom is way protect one in violation First Amendment. The party’s identity. Another way is to use district court did not argument reach this fictitious names limit the use of identi- as it grant did not the Plaintiffs’ motion to fying approach information. This does not remain anonymous. decline “We to ad- unduly influence the a proceed- fairness of here, dress it preferring that ing. it in the first address instance.” Co., Pipe that, Beavers v. Am. Cast Iron law of the Eleventh Circuit (11th Cir.1992). rule, remand, general parties On as a required are we direct the district court use consider their real names But un- lawsuits. judge may 1. The trial well have ruled sure differ- of the courtroom. *10 ently request had involved Plaintiffs’ not clo- alleges B a homosexual act and parties circumstances special der certain for money, Plaintiff V of masturbation names: one fictitious are to use allowed intimacy. acts And Plain- both of utmost “(W)here involved are matters the issues might require her tiff V an act that alleges highly personal na- and of a sensitive fact, In activity. De- to admit to criminal abortion, control, as birth ture” such prostitu- of fendant convicted Francis was rights welfare of homosexuality, or other act. tion the same fami- or abandoned children illegitimate lies, disclosing of practice normal poten- The Plaintiffs’ real use of names “to of yields policy parties’ identities tially link their names to the vid- forever very in a mat- private protecting privacy contrast, Defendants have not eos. However, affording the cases ter.” from Plaintiffs’ use any prejudice claimed all share several plaintiffs anonymity It is the of fictitious names. news media missing plain- here. The characteristics that, intervening, demanded Plain- after actions, least, divulge at the tiffs in those during real tiffs’ names be used trial. of the inti- personal information utmost why gives reason use specific media no had to admit that macy; many also to a of real is essential fair and names govern- state or had violated laws either open trial in cause. this engage or wished to regulations ment case, of Under the circumstances prohibited conduct. balancing privacy of the interests of the Ass’n Law S. Methodist Univ. Women presumption open- Plaintiffs against Jaffe, Wynne v. Students B ness that Plaintiffs and V dictates Cir.1979) (5th (citing Doe to use names should allowed fictitious (D. F.R.D. 653 Mont. Deschamps, 64 require closing at trial. This does 1974)).2 privacy of the courtroom. interests court determined that Plain- The trial S, not nearly while as J exceptions tiffs meet the because did not V, B strong as those of Plaintiffs intimacy.” not of “utmost acts were deserve consideration because of some But of the individual Plaintiffs the acts being and the notion of treated vary regard. in that Plaintiffs J greatly differently B and V are if Plaintiffs allowed than a and S flashed their breasts less I use But fictitious names. conclude sitting in their on a minute while vehicle judge acted within his broad discre- many public While differ street. S, Plaintiffs J deciding tion activity act of whether such constitutes an than a who flashed their breasts less intimacy, the acts Plaintiffs B utmost car, sitting minute in their could not while and V much more serious. Plaintiff are proceed anonymously. friend, completely while a female
naked, engaging explicit filmed acts, including manual sex.
sexual and oral allegations, Plaintiff V’s she
According to enticed
and female friend were forced or genitals massage Defendant gave Francis as
Francis. $100.00
payment. City Bonner v. Prich- prior Fifth the Eleventh Circuit.
2. The decisions of the
Circuit
ard,
Cir.1981).
(11th
September
binding precedent
are