                                                                   [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                              FILED
                      ________________________       U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                        FEBRUARY 1, 2011
                             No. 10-10664
                                                            JOHN LEY
                      ________________________               CLERK

                  D. C. Docket No. 5:08-cv-00079-RS-AK

PLAINTIFF B,

                                            Plaintiff-Appellant,

FLORIDA FREEDOM NEWSPAPERS, INC.,

                                            Intervenor-Appellee,

PLAINTIFF J, PLAINTIFF S, PLAINTIFF V,

                                            Plaintiffs-Appellants,

                                 versus

JOSEPH R. FRANCIS, MRA HOLDINGS LLC,
MANTRA FILMS INC., AERO FALCONS, LLC,

                                            Defendants-Appellees.

_____________________________

NATIONAL CRIME VICTIM LAW INSTITUTE, SOUTHERN NEWSPAPER
PUBLISHER’S ASSOCIATION,

                                            Amicus Curiae
                              ________________________

                     Appeal from the United States District Court
                         for the Northern District of Florida
                           ________________________

                                    (February 1, 2011)

Before DUBINA, Chief Judge, ANDERSON, Circuit Judge, and MOODY,* District
Judge.

DUBINA, Chief Judge:

       Anonymous Plaintiffs-Appellants J, S, B, and V sued Joseph R. Francis and

Mantra Films, Inc., MRA Holdings, LLC, and Aero Falcons, LLC—companies

owned or controlled by Francis—for damages stemming from films the

Defendants produced in which the Plaintiffs, while under the age of eighteen,

exposed their breasts and engaged in sexually explicit acts. The Plaintiffs filed a

motion to maintain their anonymity at trial. Intervenor-Appellee Florida Freedom

Newspapers, Inc. argued in favor of denying the motion, and the Defendants

joined the Intervenor’s arguments both in the district court and on appeal. The

district court denied the motion, but stayed the judgment while the Plaintiffs

appealed. For the reasons stated below, we vacate the district court’s order.



       *
         Honorable James S. Moody, Jr., United States District Judge for the Middle District of
Florida, sitting by designation.

                                              2
                                          I.

      The Plaintiffs in this action are all women who were under the age of

eighteen when the relevant events alleged in the Complaint took place. Joseph

Francis is the creator and effective controlling officer of companies—including

the three other named defendants in this case—that maintain the “Girls Gone

Wild” franchise. Francis has made millions of dollars by going to places crowded

with young, enthusiastic, and often-intoxicated women and filming them exposing

their breasts, fondling each other, kissing each other, and sometimes engaging in

more explicit sexual acts. Francis and his agents typically have the filmed women

sign a release form affirming that they are over the age of eighteen and that the

Girls Gone Wild franchise can use the footage. He and his companies then edit

the films to create short scenes of women in various stages of undress and engaged

in different types of sexual activities. Francis and his companies bunch the scenes

together on pornographic DVDs that they sell online and through advertisements

on television.

      The allegations in the Complaint stem from the Defendants’ actions in

Panama City Beach, Florida, during the springs of 2000, 2002, and 2003. In

March of 2000, sisters Plaintiff J, age 13, and Plaintiff S, age 15, were riding in a

car along “the strip” in Panama City Beach—a stretch of road near the beach

                                          3
where students on spring break trips often hang out—with a friend and their older

sister. At one point, traffic caused them to stop in the middle of the street.

Plaintiffs J and S claim that while they were stopped, a man with a video camera

approached the car and began encouraging them to remove their tops so he could

film them “flashing” their breasts. After a period of such encouragement,

Plaintiffs J and S and their female friend briefly removed their tops and flashed

their breasts for the camera. The footage of their exhibition ended up in two of the

Girls Gone Wild videos, which the Defendants sold as part of their business.1

They joined this suit for damages caused by the distribution and sale of the

footage.

       In March of 2002, seventeen-year-old Plaintiff B traveled from Charlotte,

North Carolina, to Panama City, Florida, for a spring break trip. On March 31, she

and some friends went out to a party where they met some contractors or

employees working on behalf of the Girls Gone Wild franchise. The Girls Gone

Wild agents invited Plaintiff B and her friends up to a hotel room to continue the


       1
          In September of 2006, Mantra Films, Inc. pled guilty to ten counts of violating 18 U.S.C.
§ 2257(f) for producing and selling depictions of sexually explicit conduct without keeping proper
age and identification records of the performers and failing to affix a statement stating where the
records may be found. [R. 414-7 (Exhibit N) at 25-40.] The Plea Agreement names several Girls
Gone Wild videos which served as the basis for the charges and which Mantra Films agreed to no
longer sell. [Id. Appendix B at 39-40.] Although the Plea Agreement does not mention Plaintiffs
J and S, the films containing the footage of them are on the list.

                                                4
party. Plaintiff B alleges that the agents offered her alcoholic drinks—which she

claims may have included drugs—and that the drugs and alcohol impaired her

judgment and made her susceptible to coercion. She apparently signed a release

form falsely stating that she was eighteen and wrote down a false birth date. At

some point that evening, employees or contractors working for the Defendants

filmed Plaintiff B and a female friend naked and engaging in explicit sexual acts,

including manual and oral sex. The Defendants included the footage on two Girls

Gone Wild videos that they marketed and sold to the public.2 Plaintiff B joined

this suit seeking damages for the use of the footage.

        In March of 2003, sixteen-year-old Plaintiff V, who lived in the Panama

City area, went along with some friends down Front Beach Road in Panama City

Beach. The Girls Gone Wild crew was there again, encouraging women to flash

their breasts for the camera in exchange for beads, shirts, and similar trinkets.

Plaintiff V and her companions first met some Girls Gone Wild employees near a

local gas station. One of the employees persuaded two of Plaintiff V’s friends to

come back with him to a hotel room the company had rented, where Girls Gone

        2
          In September of 2006, Joseph Francis signed a Plea Agreement where he pled guilty to two
counts of violating 18 U.S.C. § 2257 for failing to keep age and identification records for films
depicting sexually explicit conduct. [R. 414-7 (Exhibit M) at 2-25.] Francis’s Plea Agreement
specifically refers to the use of the footage of Plaintiff B as the factual basis for the charges and the
guilty plea. [Id. at 6.] Mantra Films’s September 2006 Plea Agreement also refers to Plaintiff B’s
footage as the basis for the company’s guilty plea. [R. 414-7 (Exhibit N) at Appendix A, p. 36.]

                                                   5
Wild employees would film the two girls undressed in the shower in exchange for

$100. The girls agreed; Plaintiff V went along with them to the hotel.

       Plaintiff V alleges that Joe Francis arrived at the hotel room while her

friends were still being filmed in the shower. He introduced himself to Plaintiff V

and her two friends who were waiting. Plaintiff V alleges that a few minutes later,

Francis physically and verbally coerced Plaintiff V and one of her friends to go

into a bedroom, where he forced them to put their hands on his genitals and

stimulate him. Plaintiff V alleges that Francis gave her $100 to split with her

friend as payment for their sexual encounter with him.3 She joined this suit for

damages stemming from this sexual assault.

       The Plaintiffs filed this action in the District Court for the Northern District

of Florida on March 20, 2008. They listed only pseudonyms in their Complaint

and quickly moved to remain anonymous in the case; the district court granted the

motion in an order issued on December 18, 2008. The court expressly noted that it

would revisit the issue before trial.

       One year later, on December 18, 2009, the Plaintiffs filed a motion and brief

to preserve their anonymity throughout the course of the trial. Anticipating the


       3
          In March of 2008, Francis pled no contest to one count of child abuse and two counts of
prostitution in Florida state court as a result of his encounter with Plaintiff V and her friend. [R.
414-8 (Exhibit O) at 2-3.]

                                                  6
motion, Intervenor-Appellee Florida Freedom Newspapers, Inc. successfully

petitioned the court for leave to intervene.

       During a teleconference on or around January 19, 2010, the district court

notified the parties of its intention to deny the Plaintiffs’ motion to remain

anonymous at trial. The court invited the Plaintiffs to provide supplemental

briefing on the issue. In response, the Plaintiffs filed a supplemental

memorandum in support of their motion in which they emphasized that they faced

the very real danger of becoming internet sensations permanently identified with

the videos in which they appeared. The Plaintiffs clarified that they were not

seeking a total ban on the presence of the media in the courtroom. They indicated

that press members could attend the trial and report on the case, but could not

report any specific information learned in the course of the trial that would reveal

the Plaintiffs’ identities.

       The district court nonetheless formally denied the Plaintiffs’ motion to

remain anonymous at trial in an order issued on February 5, 2010. In its order, the

district court observed that there are both practical and constitutional reasons to

keep judicial proceedings open to the public. Weighing the risk that requiring the

Plaintiffs to proceed with their suit without anonymity would require them to

disclose “information of the utmost intimacy” against the presumption of

                                           7
openness, the district court found the Plaintiffs’ case wanting. According to the

district court, Plaintiffs S and J’s claims stemmed from an incident that lasted “less

than a minute” and did not involve “sexual conduct as a matter of law.” [R. 419 at

5-6.] The district court conceded that Plaintiffs B and V would have to disclose

information that “may be embarrassing,” but concluded that “casual and voluntary

sexual activity is not the type of fundamentally personal issue that warrants the

imposition of anonymity like abortion, birth control, or religion.” [Id.]

      The district court bolstered its ruling that none of the Plaintiffs showed they

would be forced to disclose “information of the utmost intimacy” by looking at the

harms they alleged they would suffer from revealing their identities. The district

court found that because the Plaintiffs were no longer minors and the events

alleged in the Complaint occurred more than seven years ago, the fact that they

were minors at the time was not to be given much weight. [Id. at 7.] Further, the

expert testimony the Plaintiffs presented about the mental and reputational harm

they would suffer from having their identities disclosed was “conclusory” and did

not provide sufficient evidence of a harm that would outweigh the presumption of

openness in court. [Id. at 8.] Finally, the district court held that the Plaintiffs’

claims that they would suffer violence and retaliation for filing the suit were not of

a sufficient degree to warrant anonymity. [Id.] In light of all this, the district court

                                            8
held that the Plaintiffs did not overcome the presumption of openness in court and

denied their motion to remain anonymous.

                                               II.

       A district court’s order denying anonymity for a party is a final appealable

order under the collateral order doctrine. Doe v. Stegall, 653 F.2d 180, 183 (5th

Cir. Unit A Aug. 1981).4 Thus we have appellate jurisdiction under 28 U.S.C. §

1291 (2010).

       This court applies the abuse-of-discretion standard in reviewing a district

court’s order denying a party’s motion to proceed anonymously. Doe v. Frank,

951 F.2d 320, 323 (11th Cir. 1992) (citing Lindsey v. Dayton-Hudson Corp., 592

F.2d 1118, 1125 (10th Cir.), cert. denied, 444 U.S. 856, 100 S. Ct. 116 (1979)).

However, “if the trial court’s ruling is based upon an error in law it is freely

reviewable on appeal.” Stegall, 653 F.2d at 184. A district court abuses its

discretion in denying a motion to remain anonymous if it fails to actually consider

the circumstances of the case and to weigh the relevant factors and instead follows

a blanket rule in making its final decision. See James v. Jacobson, 6 F.3d 233,

239-43 (4th Cir. 1993) (holding that the district court abused its discretion in



       4
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as precedent all rulings of the former Fifth Circuit handed down prior to October 1, 1981.

                                                9
denying motion to remain anonymous during trial when it ruled based “on the

basis of general disapproval of party anonymity at trial”).

                                          III.

      In deciding whether to grant the Plaintiffs’ motion to remain anonymous at

trial, the district court used a multi-factor balancing test established through our

case law. Because the district court incorrectly deemed some of the Plaintiffs’

conduct “casual and voluntary” and it improperly discounted expert evidence of

the harm that revealing their identities would cause the Plaintiffs, we conclude that

it abused its discretion. We vacate its order in its entirety and direct the district

court on remand to enter an order allowing Plaintiffs B and V to remain

anonymous, subject to the district court’s consideration of whether the restrictions

sought would be an unconstitutional prior restraint on protected speech. We also

remand Plaintiffs J and S’s request to maintain anonymity for reconsideration in

light of the issues addressed in this opinion, also subject to the limitations posed

by the First Amendment on prior restraints on speech.

      Federal Rule of Civil Procedure 10(a) requires that “every pleading” in

federal court “must name all the parties.” FED. R. CIV. P. 10(a) (2010). “This rule

serves more than administrative convenience. It protects the public’s legitimate

interest in knowing all of the facts involved, including the identities of the

                                           10
parties.” Frank, 951 F.2d at 322 (citing Doe v. Rostker, 89 F.R.D. 158, 160 (N.D.

Cal. 1981) and Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974)). This

creates a strong presumption in favor of parties’ proceeding in their own names.

Defendants have the right to know who their accusers are, as they may be subject

to embarrassment or fundamental unfairness if they do not. See Doe v. Smith, 429

F.3d 706, 710 (7th Cir. 2005) (“[The plaintiff] has denied [the defendant] the

shelter of anonymity—yet it is [the defendant], and not the plaintiff, who faces

disgrace if the complaint's allegations can be substantiated. And if the complaint’s

allegations are false, then anonymity provides a shield behind which defamatory

charges may be launched without shame or liability.”).

      Nonetheless, the rule is not absolute. A party may proceed anonymously in

a civil suit in federal court by showing that he “has a substantial privacy right

which outweighs the ‘customary and constitutionally-embedded presumption of

openness in judicial proceedings.’ ” Frank, 951 F.2d at 323 (quoting Stegall, 653

F.2d at 186). In evaluating whether a plaintiff has shown that he has such a right,

the court “should carefully review all the circumstances of a given case and then

decide whether the customary practice of disclosing the plaintiff's identity should

yield to the plaintiff’s privacy concerns.” Id. (citing S. Methodist Univ. Ass’n of

Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)

                                          11
[hereinafter, SMU]).

      The first step in analyzing a plaintiff’s claim of a substantial privacy right is

to look at the three factors analyzed in SMU. See Stegall, 653 F.2d at 185

(restating the test). First, are the plaintiffs seeking anonymity challenging

governmental activity? Second, will they be required to disclose information of

the utmost intimacy? Third, will the plaintiffs be compelled to admit their

intention to engage in illegal conduct and thus risk criminal prosecution?

      The only relevant consideration of the three-part SMU test here is the

second question: would denying the plaintiffs anonymity at trial require them to

disclose information of utmost intimacy? The “information of utmost intimacy”

standard applies to cases involving issues such as abortion, Roe v. Aware Woman

Center for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001), and prayer and

personal religious beliefs, Stegall, 653 F.2d at 186. On the other hand, courts have

often denied the protection of anonymity in cases where plaintiffs allege sexual

assault, even when revealing the plaintiff’s identity may cause her to “suffer some

personal embarrassment.” Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992); see,

e.g., Doe v. Del Rio, 241 F.R.D. 154, 159-62 (S.D.N.Y. 2006) (holding that

plaintiffs alleging sexual abuse by police officer could not proceed anonymously);

Doe v. Shakur, 164 F.R.D. 359, 360-62 (S.D.N.Y. 1996) (denying motion by

                                          12
plaintiff suing hip-hop artist for brutal sexual assault requesting to remain

anonymous).

       After the Stegall court clarified that the three-part SMU test was only the

first step for evaluating whether to let a plaintiff proceed to trial anonymously,

courts have considered other contexts in analyzing all the circumstances of a given

case. Courts have looked at factors such as whether the plaintiffs were minors,

Stegall, 653 F.2d at 186, whether they were threatened with violence or physical

harm by proceeding in their own names, id., and whether their anonymity posed a

unique threat of fundamental unfairness to the defendant. See SMU, 599 F.2d at

713.

       Here, we conclude from the record that the district court abused its

discretion by “fail[ing], in attempting to exercise [its] discretion, adequately to

take into account judicially recognized factors constraining its exercise.” James v.

Jacobson, 6 F.3d 233, 239-43 (4th Cir. 1993); see also Moses H. Cone Mem’l.

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19, 103 S. Ct. 927, 938-39 (1983)

(“[A district court’s] discretion must be exercised under the relevant standard

prescribed by this court.”). The district court failed to take into account the actual

allegations made by the Plaintiffs—as evident in its mischaracterization of the

Plaintiffs’ conduct as “casual and voluntary”—and failed to adequately consider

                                          13
the Plaintiffs’ extensive evidence about the scope of harm they faced if they were

forced to reveal their identities.

      First, the district court gave inadequate consideration to the degree of

intimacy the Plaintiffs’ testimony would reach. As the Fifth Circuit noted in SMU,

“ ‘Where the issues involved are matters of a sensitive and highly personal nature’

. . . the normal practice of disclosing the parties’ identities ‘yields to a policy of

protecting privacy in a very private matter.’ ” 599 F.2d at 712-13 (quoting

Deschamps, 64 F.R.D. at 653). The issues involved in this case could not be of a

more sensitive and highly personal nature—they involve descriptions of the

Plaintiffs in various stages of nudity and engaged in explicit sexual conduct while

they were minors who were coerced by the Defendants into those activities.

      Plaintiffs J and S alleged that they were filmed displaying their breasts and

that this footage was used by the Defendants in films marketed as pornography.

Although the district court may ultimately be correct that J and S are not entitled

to proceed anonymously, we believe the district court was mistaken in considering

Plaintiffs J and S’s allegations by assuming that because this sort of activity was

not “sexual conduct” under Florida Statutes § 827.071, it was not a disclosure of

“utmost intimacy.” [R. 419 at 5-6 (citing Order Granting in Part and Denying in

Part Defendants’ Motion for Summary Judgment, R. 400).] This reasoning clearly

                                           14
fails to take into account the individual facts of the case. Nothing about the

specific definition of “sexual conduct” under Florida state law makes this

definition determinative of whether conduct can touch on matters of “the utmost

intimacy.” Instead, the district court should consider whether Plaintiffs S and J

can remain anonymous in light of the fact that the footage of them was marketed

as sexual in nature. Even if their conduct does not fall under the typical

classification of “sexual,” the district court should consider whether it requires

disclosing information of “utmost intimacy” in light of their ages at the time of the

filming.

      As for Plaintiffs B and V, we conclude from the record that the district court

abused its discretion by mischaracterizing their conduct as being “casual and

voluntary.” Plaintiff B alleges in the Complaint that her filmed behavior was the

possible result of being drugged by the defendants—a fact that makes her conduct

decisively not “voluntary.” [R. 7 at 11, ¶ 61.] In any case, the extremely graphic

sexual activity she engages in with the other female in the footage can by no

means be deemed “casual.” Her filmed conduct includes a lengthy and explicit

session of homosexual intimacy involving fondling and oral and manual sex with

another underage woman. Requiring her to be identified by name closely connects

her graphic homosexual conduct with her widespread public reputation and thus

                                          15
constitutes a matter of “the utmost intimacy.” See Doe v. Commonwealth’s

Attorney for Richmond, 403 F. Supp. 1199 (allowing plaintiffs challenging state’s

anti-sodomy laws as unconstitutional to proceed anonymously).

      As for Plaintiff V, there is no real dispute that her conduct was not “casual

and voluntary.” Francis was convicted under a Plea Agreement of one count of

child abuse under Florida Statutes § 827.03(1)(c) and two counts of prostitution

under Florida Statutes § 796.07(2)(f) for his actions with Plaintiff V. [R. 420 at

12-13.] There is nothing voluntary about the conduct giving rise to those charges.

Labeling the Plaintiffs’ conduct with the blanket description of “casual and

voluntary” shows that the district court did not exercise the requisite diligence and

consideration of all the factors in this case and thus abused its discretion.

      Second, the district court erred by giving short shrift to the evidence

regarding the amount of harm losing anonymity would cause the Plaintiffs. The

court completely disregarded one of their expert’s testimony on the psychological

damage of being labeled a “slut” and dismissed testimony from the other

expert—a clinical psychologist who interviewed and evaluated Plaintiff B, the one

who seems to have the most risk of injury from public disclosure of her name—as

“conclusory.” [R. 419 at 8.] Further, the district court failed to demonstrate its

comprehension of what exactly is at stake for the Plaintiffs. The Plaintiffs had put

                                          16
on a convincing case that, by being identified, they will permanently be linked

with the videos containing the footage of them. At the very least, websites such as

IMBD.com—an online encyclopedia of movies and actors that has millions of

visitors each month—will probably list the Plaintiffs as “stars” of these videos.

These movies are still freely available for purchase through retailers like

Amazon.com. Anyone entering the Plaintiffs’ names into an online search engine

will find several links containing articles discussing their appearance in the

videos.

      In a worse scenario, an audience of voyeurs, pornographic consumers, and

pedophiles will create a heavy demand for these links, pictures, and videos,

knowing they provide an easy way to obtain some explicit sexual images of

minors. In 2002, Girls Gone Wild cameras filmed Veronica Lane, a seventeen-

year-old girl from Orlando, Florida, flashing her breasts while driving down the

strip in Panama City. After the footage made its way into two different Girls Gone

Wild videos, Lane sued in her own name for invasion of privacy and commercial

misappropriation of her image. Lane v. MRA Holdings, LLC, 242 F. Supp. 2d

1205 (M.D. Fla. 2002). As a result of revealing her identity, Lane has been

permanently identified in the IMBD.com database for one of the Girls Gone Wild

movies as “Veronica Lane: 17-year-old public breast-flasher.” [R. 414 (Exhibit A)

                                         17
at 18.] The movie—including the footage of seventeen-year-old Lane flashing her

breasts—is still available from private sellers on Amazon.com. [Id. at 13.] The

district court’s requirement for the Plaintiffs to proceed in their own names

effectively places a similar price on their abilities to be compensated for their

injuries: a lifetime of being subject to any online shopper’s desire for underage

nudity. This is certainly part of “all the circumstances” of this case. Frank, 951

F.2d at 323.5

       In light of the serious evidentiary considerations that the district court failed

to assign proper weight, the Intervenors’ arguments—and lack of arguments—are

all the more telling. When pressed at oral argument to identify a single specific

harm which would befall Florida Freedom Newspapers as a result of allowing the

Plaintiffs to proceed anonymously, counsel could not produce an answer. The

rigorous test that the Fifth Circuit Court of Appeals adopted in Stegall, 653 F.2d at

183, and SMU, 599 F.2d at 712-13, is designed to weigh that need for openness

against the genuine needs for anonymity that arise in a case like this. A general

plea for “openness” is not convincing in light of the strong evidence the Plaintiffs

have presented of their need to maintain anonymity.


       5
          The Plaintiffs acknowledged at oral argument that by proceeding anonymously, they limit
their available damages because their names would not be associated with the images in the DVDs
that are sold and child pornographers could not identify them.

                                               18
      Although the Defendants did not brief the issue and instead relied solely on

the Intervenor’s Briefs, it is highly unlikely that they could show that granting the

Plaintiffs anonymity at trial would cause them any serious harm. Francis pled

guilty to criminal charges as the result of his conduct with Plaintiff V, and Francis

and Mantra Films have admitted to violating federal law by selling the footage of

Plaintiffs B, J, and S. The Defendants are aware of the Plaintiffs’ identities and

thus are not barred from conducting a full range of discovery in building a defense

for trial. Accordingly, we conclude that none of the normal harms threatened to

defendants when plaintiffs proceed anonymously are present in this case.

      The district court failed to give due consideration to the concerns the

Plaintiffs raised about being forced to maintain the suits in their own names.

Justice should not carry such a high price, and accordingly we vacate the district

court’s order. On remand, we direct the district court to enter an order granting

the motion to remain anonymous for Plaintiffs B and V, subject to the limitations

posed by the First Amendment. As for Plaintiffs J and S, we remand their motion

to remain anonymous for the district court’s reconsideration in light of the

discussion in this opinion. On remand, the district court has the discretion to grant

the motion for Plaintiffs J and S, to deny it after appropriate reconsideration, or to

grant it in part and provide some intermediate means for maintaining some degree

                                          19
of anonymity, such as allowing them to maintain pseudonyms but permitting

public access to the courtroom.

                                          IV.

      The Intervenors also claim that the sought limitations on the press’s ability

to cover the trial constitute a prior restraint in violation of the First Amendment.

The district court did not reach this argument as it did not grant the Plaintiffs’

motion to remain anonymous. “We decline to address it here, preferring that the

district court address it in the first instance.” Beavers v. Am. Cast Iron Pipe Co.,

975 F.2d 792, 800 (11th Cir. 1992). On remand, we direct the district court to

consider whether granting anonymity under the terms the Plaintiffs have requested

would constitute an impermissible prior restraint under the First Amendment.

VACATED and REMANDED.




                                          20
MOODY, District Judge, concurring in part and dissenting in part:

        I agree with the majority that Plaintiffs B and V should have been allowed

to proceed anonymously. I dissent as to Plaintiffs J and S because I conclude the

trial judge did not abuse his discretion in regard to them.

        Initially, the trial court allowed Plaintiffs to proceed anonymously to protect

their identities from the public. Their names were provided to Defendants and full

discovery was allowed. The trial court stated the issue would be revisited prior to

trial. Shortly before trial, Plaintiffs sought to extend their anonymity through trial,

and limit the courtroom to essential parties and press during their testimony, the

testimony of witnesses revealing identifying information, and the viewing of the

films at issue. It is apparent from the trial court’s order denying this request that it

had grave concern about closing the courtroom to the public during any portion of

the trial proceedings.1 The trial judge discussed at length the reluctance of courts

to close trials from public scrutiny. But closing the courtroom is only one way to

protect a party’s identity. Another way is to use fictitious names and limit the use



        1
         The trial judge may well have ruled differently had Plaintiffs’ request not involved closure of the
courtroom.

                                                    21
of identifying information. This approach does not unduly influence the fairness

of a proceeding.

       The law of the Eleventh Circuit is that, as a general rule, parties are required

to use their real names in lawsuits. But under certain special circumstances parties

are allowed to use fictitious names:

       “(W)here the issues involved are matters of a sensitive and highly
       personal nature” such as birth control, abortion, homosexuality, or
       other welfare rights of illegitimate children or abandoned families, the
       normal practice of disclosing the parties’ identities yields “to a policy
       of protecting privacy in a very private matter.” However, the cases
       affording plaintiffs anonymity all share several characteristics
       missing here. The plaintiffs in those actions, at the least, divulge
       personal information of the utmost intimacy; many also had to admit
       that they either had violated state laws or government regulations or
       wished to engage in prohibited conduct.

S. Methodist Univ. Ass’n of Women Law Students v. Wynne and Jaffe, 599 F.2d

707, 712-13 (5th Cir. 1979) (citing Doe v. Deschamps, 64 F.R.D. 652, 653 (D.

Mont. 1974)).2

       The trial court determined that Plaintiffs did not meet the exceptions

because their acts were not of “utmost intimacy.” But the acts of the individual

Plaintiffs vary greatly in that regard. Plaintiffs J and S flashed their breasts for

less than a minute while sitting in their vehicle on a public street. While many


       2
          The decisions of the Fifth Circuit prior to September 30, 1981, are binding precedent in the
Eleventh Circuit. Bonner v. City of Pritchard, 661 F. 2d 1206 (11th Cir. 1981).

                                                 22
may differ whether such activity constitutes an act of utmost intimacy, the acts of

Plaintiffs B and V are much more serious. Plaintiff B and a female friend, while

completely naked, were filmed engaging in explicit sexual acts, including manual

and oral sex. According to Plaintiff V’s allegations, she and a female friend were

forced or enticed to massage the genitals of Defendant Francis. Francis gave them

$100.00 as payment.

      Plaintiff B alleges a homosexual act and Plaintiff V one of masturbation for

money, both acts of utmost intimacy. And Plaintiff V alleges an act that might

require her to admit to criminal activity. In fact, Defendant Francis was convicted

of prostitution for the same act.

      The use of Plaintiffs’ real names potentially forever link their names to the

videos. In contrast, Defendants have not claimed any prejudice from Plaintiffs’

use of fictitious names. It is the news media that, after intervening, demanded

Plaintiffs’ real names be used during trial. The media gives no specific reason

why the use of real names is essential to a fair and open trial in this cause.

      Under the circumstances of this case, a balancing of the privacy interests of

the Plaintiffs against the presumption of openness dictates that Plaintiffs B and V

should be allowed to use fictitious names at trial. This does not require the closing

of the courtroom. The privacy interests of Plaintiffs J and S, while not nearly as

                                          23
strong as those of Plaintiffs B and V, deserve some consideration because of their

ages and the notion of being treated differently if Plaintiffs B and V are allowed to

use fictitious names. But I conclude the trial judge acted within his broad

discretion in deciding that Plaintiffs J and S, who flashed their breasts for less than

a minute while sitting in their car, could not proceed anonymously.




                                          24
