Legal journalist may write about revenge porn case after prior restraint overturned

A magistrate judge ordered a legal journalist on July 18, 2022, not to write about a sealed revenge porn case in which some information was mistakenly made public. The ruling was overturned two weeks later.

Eugene Volokh — co-founder of the legal blog The Volokh Conspiracy, a law professor emeritus at the University of California, Los Angeles, and a senior fellow at the Hoover Institution at Stanford University — was singled out in the ruling by Magistrate Judge Elizabeth S. Chestney as the only person who was barred from writing about the case.

The case, initially filed in 2019, involves a woman who ended an extramarital affair with a man, who she said then posted revenge porn to several adult websites. The case was sealed to protect her privacy. She and the defendant later settled, but the question of whether the case was improperly sealed remained.

Volokh told the U.S. Press Freedom Tracker that he initially noticed the case in an alert from Westlaw, a database of legal documents, and thought it raised First Amendment questions that he might want to write about, given his expertise as a free speech scholar.

Even though the case was sealed, the names of both the plaintiff and defendant were published in an opinion available on Westlaw, along with other documents that should have been sealed under the judge’s order. It’s not clear exactly why they were published, but Volokh said it appeared to be an error.

“It was just a simple mistake,” he told the Tracker.

Volokh moved to intervene in the case and have it unsealed. Chestney, the magistrate judge, agreed on July 18, 2022, to let him intervene but ruled that Volokh could not write about the case until a decision was made on unsealing the case.

“Professor Volokh may not blog or write about this case until any renewed motion to unseal has been granted,” the ruling ordered.

Volokh appealed the case to District Judge Xavier Rodriguez, who on Aug. 3, 2022, vacated the prior restraint language and said the entire case should be unsealed. Volokh then published the plaintiff’s name in a blog post in August 2022 since, he said, it was also the name of the case.

A second instance of prior restraint emerged in the case after the plaintiff appealed its unsealing to the 5th U.S. Circuit Court of Appeals, which ruled that it should be partially sealed with certain personal information redacted.

The case then returned to Chestney to determine what exactly should be redacted and whether the plaintiff could retroactively use a pseudonym, Jane Doe.

Chestney ruled on June 20, 2024, in favor of the retroactive pseudonym, but then said that Volokh could not use the plaintiff’s name in future. That decision was also later vacated by Rodriguez.

Volokh said he sees both instances in which the prior restraint was overturned as examples of the system working. But he noted that he was uniquely positioned to fight these violations.

“I should also acknowledge that maybe if I weren’t a law professor, if I weren’t a specialist on the subject, if I had to pay a lawyer to challenge the prior restraints, maybe the situation might not have come out as well,” he told the Tracker.