Since Magistrate Judge Alice Senechal’s decision last week in ND Human Rights Coalition vs. Patriot Front (Do not disturb):
The plaintiffs, two nonprofit organizations and one individual, sought ex parte permission for the individual to proceed under the alias “Plaintiff Doe.” An ex parte order granted this motion. Because these documents were filed ex parte, they are not available to the public. After defendants Thomas Rousseau and Trevor Valescu appeared in the action, the court ordered the clerk to provide defense counsel with a copy of the order granting plaintiff Doe permission to proceed under an alias.
Plaintiffs bring several allegations against defendant Patriot Front (described as a “white supremacist group calling for the formation of a white ethnostate”), Rousseau (alleged founder and national director of Patriot Front), and Valescu (alleged “director of Patriot Front network). Plaintiffs’ claims arise from alleged vandalism by Patriot Front affiliates of the International Market Plaza in Fargo, North Dakota.
Movant Eugene Volokh, proceeding on his own, moves to intervene pursuant to Federal Rule of Civil Procedure 24(b) and requests that the motion to proceed under an alias and the order granting such motion be unsealed. Volokh describes himself as a writer for the Volokh Conspiracy blog on the Reason Magazine website “who frequently writes about motions to seal and proceed under a pseudonym.” He asserts both the common law right of access to the motion on the pseudonym and the First Amendment right of access to the order granting the motion.
Plaintiff Doe opposes both requests, stating that Volokh lacks standing to intervene and that Plaintiff Doe’s privacy and security interests outweigh Volokh’s right of access to the motion and order….
[1.] Standing
A potential intervener must demonstrate Article III standing. To establish standing, a potential intervener must demonstrate (1) harm, (2) causation, and (3) reparability….
A potential intervener, seeking to open court documents, who has the right of access to such documents generally meets the standing requirements [citing district court cases -EV].
Recently, however, the Sixth Circuit, relying on TransUnion LLC v. Ramírez (2021), concluded that “the mere denial of information is not sufficient to support standing.” Grae v. Corr. Am Corps. (6th Circle 2023). According to this ruling, the potential intervener must also demonstrate the negative effects resulting from the denial of access to information. Thank you, however, recognized that refusing to provide documents to journalists negatively impacts their ability to report, which may satisfy the legitimacy requirements. The Eighth Circuit, citing TransUnionrecently noted, “A claimed information harm that causes no adverse effect cannot satisfy Article III.” Rep. Comm. for Freedom of the Press v. United States (8th Cir. 2024). The court found that the plaintiff, a nonprofit organization dedicated to promoting the interests of journalists, had to have “concrete plans” to review or use the materials it sought unsealed for Article III to be valid.
Volokh says he is standing “because he seeks access to court documents so he can write about them,” noting that his blog “most often deals with disputes under a pseudonym.” [than] any other American [p]publication.” He claims that if the documents were not sealed, “he could gather information from the record and spread his opinion regarding this controversy through his blog.” And he claims that his damage can be repaired by opening the court documents. Finally, in a statement, Volokh says he attempted to access the documents through the court’s electronic filing system, but was unable to because they are sealed.
Volokh says he wants to write concretely about the use of the pseudonym in this case, he tried to access the relevant court documents but could not because they are sealed, and if they were opened, he could write about the case as planned.
In similar circumstances, other district courts have ruled that Volokh had standing to intervene [citing cases -EV]. This court agrees. Volokh has sufficiently affirmed the validity of Article III.
[2.] Intervention
Volokh seeks to intervene under Federal Rule of Civil Procedure 24(b), which provides the court’s discretion to allow a plaintiff to intervene if that person “has a claim or defense that shares with the plaintiff action a common issue in law or in fact”. The Eighth Circuit, a Flynt vs. Lombardi, found that “Rule 24(b) intervention is an appropriate vehicle for parties seeking to intervene for the purpose of obtaining court documents.” In making that decision, the Court stated:
[W]here a party is seeking to intervene in a case for the limited purpose of unsealing court records, most circuits have found that “there is no reason to require such a strong nexus of fact and law.” Instead, in such cases, it is in the public interest to maintain confidentiality of court documents which – “in the language of Rule 24(b)(2) -[is] a question of law… in common between the Parties [to the original suit] and the [would-be intervener].”
Volokh has sufficiently asserted standing to intervene, and intervention is permitted under Rule 24(b)….
[3.] Opening request
Volokh claims common law and First Amendment rights to access court records. The plaintiffs do not dispute that Volokh has both a common law and First Amendment right to access the documents. However, the plaintiffs assert that plaintiff Doe’s privacy and security interests outweigh Volokh’s right of access. They allege that disclosing Plaintiff Doe’s identity could threaten Plaintiff Doe’s safety as a Somali Muslim immigrant who is “vulnerable to racist and retaliatory actions by people who share Defendants’ discriminatory and anti-immigrant views.”
Plaintiffs note that “this case itself is based on Defendants’ racially motivated vandalism of Plaintiff’s murals [Immigrant Development Center’s] building, which depicts members of Plaintiff Doe’s family and his close associates.” ID. The plaintiffs argue that “Plaintiff Doe’s identity must remain under seal to ensure their safety and that of their family” and “Volokh’s interest in writing about court documents… on his blog is not a compelling reason that overcomes the potential irreparable damage that would result from opening the seals[ ] judicial files.”
Volokh argues that plaintiff Doe’s security and privacy concerns are not sufficient to outweigh his right of access, and the court must consider less restrictive alternatives, such as redaction. Volokh acknowledges that the revisions are appropriate to preserve Plaintiff Doe’s pseudonym. Volokh is not seeking access to Plaintiff Doe’s identity. Rather, he seeks to know the circumstances under which the pseudonymity was granted.
The court considered the complaint, the plaintiff’s motion to proceed under an alias, and the order granting that motion and agreed with Volokh’s position: his right of access is not overcome because redaction is a less restrictive alternative than could protect both his right of access and the plaintiff’s Doe pseudonym. Volokh’s motion to unseal is GRANTED….
By April 15, 2024, counsel for the plaintiffs is required to file, ex parte, motions to censure their motion to name their complaint and the court order granting such motion. Proposed redactions should be highlighted or otherwise identified to allow the court to easily review them. After consideration of the proposed complaints, the court will publicly file the censored versions of the motion and order….
I look forward to writing about the motion and order once they are released.