Court To Frat Boys: Openness Of Courts More Compelling Than Your Potential Embarrassment

from the can't-have-your-pot-and-smoke-it-too dept

Tue, Jul 29th 2014 3:39am — Mike Masnick

Via Eric Goldman, we learn of a case in Pennsylvania where a group of six Bucknell students were trying to sue some officials at the University for unlawaful search relating to a drug bust and subsequent disciplinary action at their frat house (and some other residences). The interesting tidbit here is that the plaintiffs asked the court to keep their names a secret throughout the case. Their argument was not that they needed to be kept secret from the defendants -- who already knew exactly who they were -- but rather that since the discipline was done confidentially, to sue publicly would out these students as being disciplined over drug possession -- and that might harm their reputations.

The court however, completely rejects this request, noting the importance of open and public court procedures. While it does admit that there are cases where plaintiffs are allowed to proceed under pseudonyms, that tends to be in cases where to come forward would put them in direct danger -- not direct danger of being publicly associated with things they actually did. Basically, the court notes that while it may be embarrassing for this information to end up on the web, these guys are adults who made their own choices, and keeping the fact that you were busted with drugs secret is quite different from keeping information secret to avoid being thrown in an Iranian prison:

There is no potential for serious harm to Plaintiffs in the case at bar. There are also no special circumstances that would justify an exception to one of the hallmarks of the American democracy, the openness of our courts. This is not a case involving "abortion, birth control, transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality." ... The only harm to Plaintiffs is that which they identified — the embarrassment of possession of contraband and that news media outlets may discuss the story, which will then live in perpetuity through web searches on the internet.

The Megless/Provident Life/Citizens for a Strong Ohio factors certainly mitigate against Plaintiffs arguments in favor of anonymity. Plaintiffs here are not children, but adults who have left the nest to explore the world; albiet, the semi-sheltered world of college life at a private, small, expensive liberal arts college in rural Pennsylvania.

Bucknell kept the students disciplinary record confidential; Plaintiffs have therefore been protected from public disclosure up to this point. However, the Bucknell's desire to protect its students has no bearing on the instant proceedings. The public has no compelling need to protect the identities of adults alleging Fourth Amendment violations (to be contrasted with the use of pseudonyms for sexual assault victims, the public has a compelling need to protect identities to promote disclosure by these victims). Moreover, this case does not involve private medical information; a risk to Plaintiffs of future imprisonment in the Peoples Republic of China, the Islamic Republic of Iran, or even in the United States; nor does it involve the threat of loss of the right to invoke the Fifth Amendment.

Basically, the 4th Amendment issues may be worth exploring, but there's no compelling argument for keeping their names out of the case. Just because their names -- and the associated actions -- may "live in perpetuity through web searches on the internet," that's no reason to allow them to stay anonymous.

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Filed Under: anonymity, courts, embarrassment, privacy

40 Comments

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Anonymous Coward, 29 Jul 2014 @ 4:08am

The compelling reason for anonymity
I disagree - assuming the search was unlawful, then they are basically in the position of "defend yourselves and be outed or wear it". This has the same effect as blackmail - "sure, you could seek redress for the wrongs we have done, but then everyone will know what you did." This then acts as a deterrent to legal defense.
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Scott, 29 Jul 2014 @ 4:09am

Names
Ironically, none of the frat boys' names were revealed.
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me, 29 Jul 2014 @ 4:10am

if ya cant do the time.....
something something
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kenichi tanaka (profile), 29 Jul 2014 @ 4:16am

I have to admit that this is an interesting argument. But, unfortunately, there is no constitutional right to keeping your name out of a legitimate court trial when you are accused of a crime. These students were busted for possessing illegal drugs and they got caught. Arguing that revealing their names is a constitutional violation is such a wrong reading of the law that you have to scratch your heads wondering how any competent attorney came up with this argument.

Sure, anyone accused of a crime is going to be embarrassed, but arguing that they have a constitutional right to keep their names out of it violates the very visit of open court proceedings.

If these students didn't want their names revealed, then here's a suggestion, DON'T VIOLATE THE LAW.
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Anonymous Coward, 29 Jul 2014 @ 4:20am

Re:
The root cause of the problem here was an unlawful search. So it's an interesting dilemma
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Anonymous Coward, 29 Jul 2014 @ 4:29am

Re: The compelling reason for anonymity
What a bunch of hogwash. Public record is public.
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Anonymous Coward, 29 Jul 2014 @ 4:32am

Re: Re:
Many searches are, and then the evidence is tossed ... after you pay lawyers. If you rely upon public defenders, too bad, it is plea bargain and then jail for you.
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Michael, 29 Jul 2014 @ 5:08am

Now, on the one hand, I can understand that argument that if there was an unlawful search the university may essentially be holding their anonymity hostage to dissuade the students from suing.

On the other hand, they are making the choice to sue. They are pretty lucky that a drug bust was kept from being a criminal matter and handled with discretion by the university.

My question is - why aren't they in jeopardy of the drug bust becoming a criminal matter by doing this? Is there anything indicating how it was kept secret?
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AJ, 29 Jul 2014 @ 5:18am

Re: Re: Re:
Justice for those that can afford it... sounds about right. Its also a good way to kick start a revolution.
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Anonymous Coward, 29 Jul 2014 @ 5:19am

They could just claim affluenza and then the court will bend over and do what ever the spoiled brats want.
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Anonymous Coward, 29 Jul 2014 @ 5:34am

Re:
I would assume that they have some protection in that the search probably wasn't conducted in accordance with proper evidence retention rules even if it turns out to have been a valid search, so the evidence found couldn't be used in a criminal case.
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Anonymous Coward, 29 Jul 2014 @ 5:39am

Re:
I think you missed an important point, the frat boys are the plaintiffs in the case, and are not accused of a crime in this case, but are rather bringing a case against their university. Their own actions are making a private matter public.
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Anonymous Coward, 29 Jul 2014 @ 5:51am

Re: Names
I think that is to give them the option to withdraw the complaint.
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Anonymous Coward, 29 Jul 2014 @ 6:18am

The University isn't a government entity therefore the 4th amendment does not apply. University disciplinary action is not the result of criminal prosecution either. There may be a civil violation of their privacy by University officials or even a criminal trespass that occurred on the part of the University officials however, to challenge the civil violation to privacy the case has to be open to public scrutiny unless they can convince the judge that there is a good reason to protect their anonymity. Confusing the provisions of the 4th amendment as they apply to criminal prosecution by the government with civil action taken against a private entity is not going to help there. To pursue the criminal trespass, they would have to convince the DA to file a case against the University and given the circumstances, I would have to say, good luck with that.

However, that does make me think of an interesting scenario to ponder. Let's say for the sake of argument that the University officials did commit a criminal trespass in this investigation to obtain evidence but instead of handling this with internal disciplinary action had given that evidence to the police and the DA prosecuted them with it. Since the police didn't receive the evidence via a search requiring a warrant, there would be no 4th amendment violation on the part of the government. In fact, the University wouldn't even be a party to the criminal case. Despite the fact that the evidence was obtained via an illegal action of a third party, should the evidence be allowed?
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jameshogg (profile), 29 Jul 2014 @ 6:56am

Secrecy in courts must be reserved for exceptional circumstances.

For one thing, the NSA may be determined to keep certain court evidence secret from the public precisely BECAUSE they will have violated the 4th amendment to get that evidence. I know GCHQ has been caught doing this, for example. That is one of the knock-on effects everybody forgets about when it comes to debates over that amendment.

And as for "embarrassment" here, in my view there is nothing to be embarrassed about. If there was an unjust search carried out in the name of an unjust war (the war on drugs) based on something that was nobody else's business but those students', the only thing that must be felt when trying to carry forward some justice is pride, not shame.
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kenichi tanaka (profile), 29 Jul 2014 @ 7:09am

I missed the point on that issue but the fact is, you cannot file a lawsuit publicly shaming an institution and then hide behind anonymity. These frat boy morons should be ashamed of themselves.

They filed their lawsuit alleging the violation of their constitutional rights, except that their rights weren't violated. What Mike Masnick left out of his article above was that a faculty member found a cell phone in her classroom with numerous texts suggesting drug activity, a court document states, from a court complaint back in February where Bucknell attempted to dismiss the lawsuit in a complaint filed earlier this year.

From what I found out about searches of campus dorms: "with limited exception, courts support the rights of college and university officials to enter and search rooms in order to serve institutional purposes, which include protecting the health and safety of students and enforcing college rules and regulations."

In effect, once the campus discovered that some of its students were engaging in the business of illegal drugs on its campus, it had the right to search the student's dorm in relation to this illegal activity.

Additionally, what Mike's article also neglected to mention was that campus authorities discovered LSD tablets, marijuana, synthetic marijuana, 5.5-inch hunting knife, slingshot, pellet gun designed to look like an automatic pistol, 11-inch bong, 16-inch bong, nine pipes, digital scale, seven grinders and a lock-picking set.

I don't see these students on the winning side of this court battle.
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John Snape (profile), 29 Jul 2014 @ 7:50am

Danger?
Of course they are in imminent danger! Their parents are going to *kill them* when they find out!
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Trevor, 29 Jul 2014 @ 7:58am

Wrong Continent.
Too bad they aren't in Europe, or else they could just use that fancy new Right to be Forgotten after the trial is over...
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Anonymous Coward, 29 Jul 2014 @ 8:05am

Re:
Was this a campus dorm or an near campus house? The difference is huge. Let's say it was an off campus house. The University officials have no course of action to search the house without consent of those who live there. However, they could take the information they found to the police. The police cannot search the phone without a warrant but that requirement does not apply to the university. The police could use the information given to them by the university to obtain a warrant then search the house.
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kenichi tanaka (profile), 29 Jul 2014 @ 8:11am

I just don't see these students prevailing because campus administration and campus safety had an absolute right to search those student's dorm room and they had no expectation of privacy since they were in violation of campus policies and they were violating the law.
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Anonymous Coward, 29 Jul 2014 @ 8:29am

Re:
Affluenza diagnosis seem to cost 500k per official bribed involved. Their parents might not have that kind of ready cash.
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Anonymous Coward, 29 Jul 2014 @ 8:44am

Re:
I don't see them prevailing because they are making the wrong argument. 4th amendment applies to the government not a civilian organization such as a university. If they argued that the University violated laws that restrict civilian entities such as trespass, stalking, etc. Then maybe but it is likely to cost them more personally in the long run due to the damage to their reputations than the suit would be worth even if they won it.
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Anonymous Coward, 29 Jul 2014 @ 9:01am

No need?
The public has no compelling need to protect the identities of adults alleging Fourth Amendment violations (to be contrasted with the use of pseudonyms for sexual assault victims, the public has a compelling need to protect identities to promote disclosure by these victims)

There is no public need for victims of Fourth Amendment violations to come forward? If victims are NOT willing to come forward, then authorities have no reason to not keep violating their rights.

I feel like the courts picked some arbitrary exceptions to the "must use your real name" rule - cases involving "abortion, birth control, transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality." Seriously, birth control? Isn't that used by like 99% of women? What's the purpose of hiding the identity a transsexual if not the embarrassment of the transsexual? Some of these may go to privacy interests - but the ENTIRE POINT of something violating the Fourth Amendment is that it illegally violates privacy! If those, why not this?
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Anonymous Coward, 29 Jul 2014 @ 9:19am

Re: Re:
4th amendment applies to the government not a civilian organization such as a university.

The search was done partially by law enforcement personnel.
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Anonymous Coward, 29 Jul 2014 @ 9:47am

Re:
they had no expectation of privacy since they were in violation of campus policies

Do you honestly believe that ONLY the students who had drugs had their rooms searched? Beyond that, do you think a simple "policy violation" justifies a warrantless search?

campus administration and campus safety had an absolute right to search those student's dorm room

Do you think that landlords in general are allowed to search their tenant's rooms without warning if there's not an emergency? Do you think landlords are allowed to pull the fire alarm when there isn't a fire, and then lock the door so the tenant can't get back in while they do that search?

Maybe someday a student will be killed because instead of exiting the building when they hear the fire alarm, they try to hide or dispose of their stash, thinking it's a raid. I suppose you'll think they deserve it.
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Austin (profile), 29 Jul 2014 @ 10:11am

Why are they even worried about this?
After all, soon the EU is going to force the right to be forgotten to apply to American search results and nobody will ever know anyway, right?

/sarcasm
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Anonymous Coward, 29 Jul 2014 @ 10:28am

Re:
and they were violating the law.

Bringing up violations of the law only hurts your case. Law enforcement personnel enforcing the law like this would unquestionably be a 4th amendment violation.

Your argument, as far as I can tell, is that it was instead a mere institutional search done by campus police to investigate policy violations. The facts that those campus officers have actual arrest power under that state's laws, and that the violation in question is a crime that those officers could actually arrest someone for, don't help your case. (I would also question why the Sheriff's department was there, if this was only an internal campus matter.)
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PRMan, 29 Jul 2014 @ 10:33am

Re: The compelling reason for anonymity
"abortion, birth control, transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality"

Many of these are a result of choices as well. So I really don't understand the judge's logic.
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Mason Wheeler (profile), 29 Jul 2014 @ 10:55am

to sue publicly would out these students as being disciplined over drug possession -- and that might harm their reputations.

Well yeah, isn't that the whole point of having a reputation?
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Anonymous Coward, 29 Jul 2014 @ 11:06am

Re:
Let's say for the sake of argument that the University officials did commit a criminal trespass in this investigation to obtain evidence but instead of handling this with internal disciplinary action had given that evidence to the police and the DA prosecuted them with it. Since the police didn't receive the evidence via a search requiring a warrant, there would be no 4th amendment violation on the part of the government. In fact, the University wouldn't even be a party to the criminal case. Despite the fact that the evidence was obtained via an illegal action of a third party, should the evidence be allowed?

It is my understanding that the evidence would be allowed only if nobody from the university was acting under the color of law.

If it were a public university, then pretty much everyone would by a government actor; but this was a private university.

Campus police have actual police powers under Pennsylvania law, and the search was conducted partially by them. Since the campus police would unquestionably be acting under color of law if a warrentless search intended to find drugs resulted in an arrest for possession of drugs, the search would be illegal.

The lawsuit in this case alleges that the Sheriff, among others, was present, which would mean the campus police were acting "in concert" with law enforcement. This would suggest that the search was done under the color of law, and would therefore violate the 4th Amendment and the evidence could not be used (even if they were in a state where campus officers were not considered law enforcement themselves.)

But if nobody involved was from the government or working for or with law enforcement, then the evidence could be used even if it was obtained via trespass.
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Coyne Tibbets (profile), 29 Jul 2014 @ 11:27am

Florida
Here in Florida, court proceedings are for commonly closed regardless of content.

Guess these frat guys just don't live in the right state.
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hobo, 29 Jul 2014 @ 11:34am

Re:
I'm not saying that I agree with the bros here, but I think it is an interesting point. Sometimes the accusation of crime is enough to mar a reputation. If the crime is heinous enough it can end one's career and severely harm future job prospects. Were it to get enough coverage it could damage personal relationships. And that is all even if you are cleared and charges are dropped.

I don't think drug possession falls within this category, and there are mitigating circumstances, but having everything public all the time can have negative consequences for the innocent.
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Michael, 29 Jul 2014 @ 12:04pm

Re: Re:
And if it was in campus housing, it is in an area that may be determined by laws concerning the housing contracts or laws concerning landlords being able to authorize law enforcement entry to a tenant's home.

There is also the possibility that there were exigent circumstances (breaking up a party?).

We don't know the details.
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Anonymous Coward, 29 Jul 2014 @ 12:26pm

Re: Re: Re:
There is also the possibility that there were exigent circumstances (breaking up a party?).

The lawsuit *specifically* claims that there were no exigent circumstances. I don't think the university is claiming there were any, either.

We don't know the details.

The actual lawsuit is linked in the article, but I'll link it here too; feel free to read it.
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Intraluminal, 29 Jul 2014 @ 3:51pm

Re:
BUT, if they were found guilty through improper (unlawful) search, then they are NOT guilty in the eyes of the law, just as if any other law was violated in the course of an investigation. Therefore, until their guilt is clarified, they should not be outed. Otherwise there is a chilling effect on anyone asserting their rights.
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Anonymous Coward, 29 Jul 2014 @ 6:05pm

Re: Re:
To be clear, they weren't criminally charged and likely won't be (because they wouldn't be able to use the evidence anyway, and the events in question are now several years old.) But they still had their rooms searched without a warrant.

I mean, I'm OK with saying that people can't proceed anonymously without a good reason. But I can't agree with saying "birth control" is a good reason, but "asserting 4th amendment rights" is not a good reason. If embarrassment is not a good reason, then get rid of those other exceptions. If it is, then let these guys proceed.
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Anonymous Coward, 29 Jul 2014 @ 10:42pm

Re: Re: The compelling reason for anonymity
Please tell me you're trolling.
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Anonymous Coward, 29 Jul 2014 @ 11:27pm

Re: Re: Re: The compelling reason for anonymity
Some of them ARE. Not all, but some. Abortion and birth control are unquestionably choices (that's where "pro-choice" comes from.) Welfare rights of children is not a choice for the children involved. Presumably, mental illness and AIDS are not choices. Homosexuality and transexuality are not choices in how someone is oriented, but may involve choices in what they do about it - and in any case, things like race, gender, and national origin are also things which do not involve choices but don't trigger this protection.
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Anonymous Coward, 6 Aug 2014 @ 1:20pm

Re: Re: Re:
The other exceptions are to protect the litigants from real, physical harm. Not embarrassment. You'd be surprised what intolerance and religious fanaticism will do about something you think is just 'embarrassing.'
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John smith, 10 Oct 2014 @ 2:56pm

It was on campus and private universities are allowed to do what they please on their own property. However, the school used state resources, drug dogs and state troopers, to execute a raid without a warrant. This sets a dangerous precedent. The "frat boys", also known as students who participate in Greek life, are being intimidated into not suing the school. This is wrong.
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