NRA loses round in court, ‘Jane Doe’ must reveal identity

A judge said he was hamstrung by previous court decisions, which forced him to deny the request to keep secret the identities of Jane Doe and John Doe, a 19-year-old man who is also a part of the case.
U.S. District Judge Mark Walker
U.S. District Judge Mark Walker
Published May 14, 2018

Expressing sympathy for her plight, a federal judge nevertheless turned down a request by the National Rifle Association to keep the identity of a 19-year-old Alachua County woman secret in a challenge to a state law that raised from 18 to 21 the minimum age to purchase rifles and other long guns.

Lawyers for the NRA late last month asked U.S. District Judge Mark Walker to keep the identity of "Jane Doe" secret, based in large part on a declaration filed by the gun-rights group's Florida lobbyist Marion Hammer, who detailed threatening emails she had received featuring derogatory words for parts of the female anatomy.

"If it were entirely up to this court, this court would not hesitate to grant the NRA's motion. One need only look to the harassment suffered by some of the Parkland shooting survivors to appreciate the vitriol that has infected public discourse about the Second Amendment. And this court has no doubt that the harassment goes both ways; Ms. Hammer's affidavit proves just that," wrote Walker, who in a footnote called the messages sent to Hammer "hateful and abhorrent" and of such an "offensive nature" that he would not repeat them in his order.

"People — especially teenagers — should not have to subject themselves to threats of violence, continued harassment, and a concerning amount of public scrutiny just to share their views about the Second Amendment (whatever those views may be)," he added.

But the judge said he was hamstrung by previous court decisions, which forced him to deny the request to keep secret the identities of Jane Doe and John Doe, a 19-year-old man who is also a part of the case.

Based on precedent, "this court finds that mere evidence of threats and harassment made online is insufficient to outweigh the customary and constitutionally-embedded presumption of openness in judicial proceedings," Walker wrote. "This is especially true where the targets of such threats and harassment are not minors and where the subject at issue does not involve matters of utmost intimacy."

The debate over the pseudonyms came in a lawsuit filed on March 9 by the NRA, just hours after Gov. Rick Scott signed into law a sweeping school-safety measure that included new gun-related restrictions. The legislation was a rapid response to the Feb. 14 shooting at Parkland's Marjory Stoneman Douglas High School that left 17 students and faculty members dead and 17 others wounded.

The law raised from 18 to 21 the minimum age to purchase rifles and other long guns. It also imposed a three-day waiting period on the sale of long guns, such as the AR-15 semiautomatic rifle 19-year-old Nikolas Cruz last year legally purchased and is accused of using in the Valentine's Day massacre at his former high school.

In late April, the NRA filed a motion to add "Jane Doe" as a plaintiff to the lawsuit, which contends the age restriction in the new law "violates the fundamental rights of thousands of responsible, law-abiding adult Florida citizens and is thus invalid under the Second and Fourteenth Amendments."

The NRA asked Walker to allow the woman to remain anonymous due to fear that public exposure could result in "harassment, intimidation, and potentially even physical violence."

But, representing the state, lawyers for Attorney General Pam Bondi argued the request for anonymity "does not provide a sufficient basis for overcoming the strong presumption in favor of open judicial proceedings."

Suggesting that the courts have not kept up with the times, a reluctant Walker agreed.

The 11th U.S. Circuit Court of Appeals, which hears appeals from Florida, "has made it clear that pseudonyms may only be used in 'exceptional' cases … and that there is 'a strong presumption in favor of parties' proceeding in their own names,' " the judge wrote in a 17-page opinion Sunday.

Walker gave the NRA until May 21 to file an amended complaint, without the pseudonyms.

"We are of course disappointed by the court's ruling. Just as in Roe vs. Wade, individuals should be able to stand up for the Second Amendment without having to expose themselves to harassment and bullying," Hammer, a former president of the national gun-rights organization, said.

Courts historically have relied on three factors to determine whether to keep parties' identities private, including whether they will be "required to disclose information of the utmost intimacy," a standard that involves issues such as abortion, prayer and personal religious beliefs, Walker wrote.

"One would think that the standard covers more, but apparently it doesn't," the judge noted, pointing out in a footnote that courts have denied the use of pseudonyms in cases involving sexual assault.

The NRA also could not show that two other factors — whether the plaintiffs were seeking anonymity to challenge government activity, or whether they needed the pseudonyms because they intended to engage in illegal activity that could result in prosecution — weighed in favor of anonymity, Walker wrote.

But, expressing sympathy for Jane and John Doe, the factors laid out in the previous decisions fail to take into account "concerns about the potential harassment and threats they face," Walker wrote.

"To be clear, this court does not intend to diminish those concerns," he added.

Saying that his discretion was limited, the federal judge relied heavily on a 1981 decision, in a case known as Doe v. Stegall, in which a mother sued over "religiously-oriented ceremonies" being conducted at her children's middle school in Mississippi.

The mother asked that she and her two children be permitted to proceed under fictitious names out of fear of harassment and violence, using remarks made at a local school-board meeting as evidence of the potential danger her family faced.

"Some of the comments voiced at the meeting appear to be just as hateful as the emails Ms. Hammer attached to her affidavit in this case," Walker noted.

A district court ruled against the mother, but a federal appellate court struck down the decision, saying the plaintiffs' identities should be kept secret — but not because of the potential harm that the family could incur, Walker wrote. The court's ruling was based on other factors, such as "religious belief" and the ages of the minor children. In contrast, Jane and John Doe are both 19 years old, Walker pointed out.

"True, they are still young, but maybe not quite so young that they share the same 'special status and vulnerability' that the 'child-litigants' in Stegall had," the judge wrote.

But Walker also cautioned that "a lot has changed in society" since the Stegall case was decided more than three decades ago.

"Today we have the internet, social media, and the 24-hour news cycle. What this means is that if a person attaches their name to a lawsuit — and especially if that lawsuit is sensational — then everyone will quickly be made aware of it. Articles get posted online, and the responding comments, tweets, and whatever-else-have-yous often devolve into a rhetorical barrage of hate. Unfortunately, it seems the internet just doesn't always bring out the best in us," he wrote.

"Maybe the law should be modified to reflect these changes. But it's not this court's job to change the law; this court's job is to apply the law," Walker wrote. "And the law unfortunately directs that the NRA's motion must be denied."