Gag Order bars political tweeter from naming man who accused American Conservative Union president of groping

The plaintiff, a Republican political operative, sued the ACU president for allegedly groping him:

During his time involved with the Republican Party, plaintiff “served on political campaigns and political committees as field coordinator, field director, grassroots director, and political director, among others.” While working for one of those campaigns as a political operative, the plaintiff claims that, “[o]On October 19, 2022, a high-profile figure in conservative and Republican politics sexually assaulted [him] in Georgia.” This sexual assault incident became more public on January 6, 2023, when the Daily Beast published an article detailing the sexual assault incident, without naming the accuser, and “[o]The story was picked up by other media, and the incident became widely known.” [link -EV]. Although the Daily Beast and other media did not identify the accuser by name as a victim, the accuser claims that “many in the political and journalistic community were aware of his identity.”

Caroline Wrenand a Republican political operative herself,

was aware of the accuser’s identity and began attacking the accuser on Twitter after the Daily Beast story. Specifically, the defendant allegedly made false statements about the type of work the plaintiff did for the campaigns he worked on, and accused the plaintiff of being “fired from multiple campaigns for lying and unethical behavior” and of being a “habitual liar.” As a result of these allegedly false and defamatory statements, Plaintiff claims he “suffered damages, including … embarrassment, humiliation, distress and injury to reputation.”

The prosecutor then sued Wren for defamation, and Chief Justice Beryl Howell (DDC) stepped in Doe v. Wren (1) allowed him to go forward under a pseudonym and (2) “banned [Wren] from public disclosure of the identity of the plaintiff or any personal information that could lead to the identification of the plaintiff by the parties, except for the purpose of investigating the allegations contained in the complaint and to prepare an answer or other dispositive motion in response.” Here is the explanation of Chief Judge Howell gave a pseudonym ( all quotes above and below are from opinions):

First, as Plaintiff’s statement of claim makes clear, Plaintiff does not wish to proceed under a pseudonym “merely to avoid … boredom and criticism,” but to “preserve privacy regarding [a] of a sensitive and highly personal nature.” Although the content of the plaintiff’s claim refers to the defendant’s public statements on Twitter, those statements are inextricably linked to the plaintiff’s allegations of sexual assault against a third party. Courts have routinely found that allegations of sexual assault implicate sensitive and highly personal matters, and allowed those plaintiffs to file their complaint under a pseudonym.Given the connections between plaintiff’s claim here and his sexual harassment claim against a third party, the first factor favors allowing plaintiff to proceed anonymously….

Plaintiff [also] points out that the third party he accuses of sexual assault is a high-ranking figure in well-known advocacy organizations active in Republican and conservative political circles, and the accused was “a key organizer of the Jan. 6, 2021 ‘Stop’ Steal rally” that led to the attempted Riots in the United States Capitol.” Given that the defendant and the third party appealed to a segment of the population that might view the plaintiff’s allegations as a political attack, publication of the plaintiff’s name potentially “poses a risk of retaliatory physical or psychological injury to the requesting party.” …

[P]Plaintiff seeks to defend only his rights, and anonymity appears to be necessary to afford him the opportunity to do so without jeopardizing the public disclosures Defendant has already allegedly made of sexual assault against Plaintiff by identifying him in this litigation.

For what it’s worth, as best I can tell from a search based on the Tweet cited in the lawsuit, the plaintiff appears to have been fired a few days ago from his NC legislative staff job due to his past appearances on what appears to be “pro-white” radio emission; he is also apparently the same person who wrote a letter to the judge in support of a higher sentence for the defendant on January 6th. It’s not directly legally relevant to a defamation case, but I think these are normal things that journalists covering a defamation case might want to write about, and that the defendant might legitimately want to continue to write about; this helps illustrate the problems with pseudonymous litigation in such cases, and particularly with closure orders like these.

More broadly, I think it’s hard to justify an order that directly limits even Wren’s exact speech. This is particularly so as the order appears to have been made without notice to Wren and without an opportunity for him to appear and argue it (see Carroll v. President and Commander Princess Anne (1968)). And Doe’s claim that he was the victim of groping cannot justify the restriction; moreover, even subsequently punishing the publication of the names of direct rape victims is generally unconstitutional (see Florida Star v. BJF (1989)), making the prior ban on publication of the names of alleged groping victims even more clearly unconstitutional.

You can read more at The Law on Pseudonymous Litigation, if you want. That article notes that some courts have issued similar restraining orders (pp. 1375-76) and that other courts have denied those orders on First Amendment grounds. It also posits a sharp division (pp. 1430-37) on whether pseudonymity in court records (even apart from gag orders) is inappropriate even in sexual assault cases, an issue on which the courts are divided (and on which several courts distinguish rape allegations from groping allegations and allow pseudonymity for the former but not for the latter).

The case has been assigned to Judge Richard Leon, who can reconsider Chief Judge Howell’s order; I understand that Wren will fight the ban and it will be interesting to see what Judge Leon does.

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