Free Speech vs. Anonymity Gone Wild: Women Suing Joe Francis Fight To Remain Anonymous

from the anonymously-flashing dept

A lawsuit over the legality of a "Girls Gone Wild" video has turned into something of a free speech battle. Apparently four women who appeared in one of the famous videos as teenagers, are suing Joe Francis, the guy behind the whole GGW franchise. The women (all in their 20s now) want to remain anonymous in their lawsuit, saying that they were humiliated enough when the footage was released. The judge rejected the request to remain anonymous, and the women are now appealing. Various news organizations are taking the other side of the case, arguing that journalists should be allowed to report on names of plaintiffs for newsworthy stories. While I'm definitely a big supporter in protecting anonymous speech, I'm not sure that it makes sense here. The women were not anonymous. They appeared in public and did what the videos show them doing, whether or not they're happy about it now. On top of that, while protecting anonymous speech is a valid First Amendment issue, so is the right of journalists to publish relevant factual information on a news story. I'd be surprised if the appeals court rejects the district court's decision denying them the ability to file this case anonymously.


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  1.  
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    ofb2632 (profile), Oct 29th, 2010 @ 4:46pm

    age

    I think if the girls were not of legal age, they should not be subjected to more humiliation. Joe Francis has a history of going to extremes to get his way. If the girls lose this appeal, he will be giving every news organization each and every detail he can about them just to embarrass them so much that they dismiss the lawsuit.

     

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  2.  
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    Anonymous Coward, Oct 29th, 2010 @ 4:48pm

    Have you really thought this one through?

    Publishing a video of someone like the "Girls Gone Wild" videos is illegal unless the model has signed a modeling release form (which is invalid if it can be shown that she didn't understand what she was signing, e.g. because she was very drunk).

    Assuming she did sign in fact sign the forms, the legal bar is set pretty high for showing that she could not have been reasonably assumed to understand what she was signing, so she may well have a tough time at trial. Let's assume though, for the same of argument, that there was no model release at all (or clearly forged or something).

    Then the hypothetical video company has seriously broken the law and at trial would be found liable, but under the regime you and this court seem to want, the model has to choose between seeing justice done but making it a matter of public record (easily available on the internet, complete with the video no doubt) tied to her name that she appeared in the video (thus greatly increasing the harm done) or remaining anonymous (so that only those that happened to watch the video might be able to guess that she's the girl in it) but letting the video company get away with it. I see no reason that justice shouldn't be served without inflicting additional harm on the victim.

    Of course, this must to some extent be balanced with the public's right to know about the case, and if she were otherwise a public figure, perhaps the public's right to know ought to win out. If not though, it seems that the benefit to the public of knowing her identity is negligible compared to the harm done by revealing it.


    It seems to me from your "they appeared in public and did what the videos show them doing, whether or not they're happy about it now" comment that you are letting your skepticism about the merits of the case taint your judgment on the anonymity issue. As a matter of law, where would you draw the line between a case like this (again, at this point the court should be assuming that the woman's claims about the facts are true) and, say, "hidden camera" voyeurism victims (or would you deny them anonymity too)?

     

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    Beta (profile), Oct 29th, 2010 @ 5:05pm

    Naked is the best disguise.

    The women were not anonymous. They appeared in public and did what the videos show them doing...

    A false dichotomy. From my reading of the article it looks as if they did not identify themselves at the time, but acquaintances later recognized them in the video and "outed" them at school. Decades ago a girl could flash a crowd at spring break (or whatever) and be reasonably confident that no one would ever know who she was, or at least that it wouldn't become common knowledge (or common viewing!) in her home town. Now she must be more circumspect, which is everyone's loss.

    I have mixed feelings about whether people should be allowed to bring suit anonymously, but the very fact that it is possible in this case means that we have not entirely lost the anonymity we used to take for granted.

     

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  4.  
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    GSV Eat Me Reality (profile), Oct 29th, 2010 @ 5:10pm

    Oh, please

    @ Anonymous Coward post:

    Anybody who acts out in public has no reasonable expectation of privacy under the law. If you don't like that, then don't get drunk and do stupid things in public.

    Whether or not their identities should be made available to the media in the court case is entirely different matter which has little or nothing to bear on their public display of idiocy. "Modeling release forms" don't bear on this case as it was not apparently a formal video, but something done in a public arena.

    The "hidden camera voyeurism" issue doesn't apply here, either - it applies to places where the victims have a reasonable right to privacy, as in restrooms and more private settings.

    I haven't seen the video (nor do I have any intention of watching it, I grew up decades ago), nor am I associated with the porn industry in any way, but I do know that anything I do in a bar or other legally public setting is something I can claim a right to privacy for. That's just plain ridiculous.

    GSVEMR

     

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    GSV Eat Me Reality (profile), Oct 29th, 2010 @ 5:12pm

    Correction

    s/anything/nothing

    GSVEMR

     

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    out_of_the_blue, Oct 29th, 2010 @ 5:16pm

    Parents granted them autonomy.

    While I agree with AC @ 2: assuming these young women were hundreds of miles from parents, with parents permission (but irrelevant given other factors such as possessing credit cards and other means of autonomy), unsupervised, just trusted to not drink or take drugs, then they were de facto adults. 18 is just an arbitrary number. So, no anonymity.

    >>> 3rd attempt! I get a blank "done" page.

     

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    Anonymous Coward, Oct 29th, 2010 @ 5:48pm

    I think "don't get drunk and do stupid things in public" is a good lesson to take away from this.

     

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    Xanius, Oct 29th, 2010 @ 6:59pm

    There's an entirely different issue here...

    I'm not so concerned about the free speech vs. anonymity issue....why in the hell is joe francis not being charge with distributing child porn? The article and lawsuit claim the girls were ages 13-17. That makes the video a felony to even possess much less distribute.

     

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    Paul Alan Levy (profile), Oct 29th, 2010 @ 7:38pm

    Anonymity v. Anonymity

    The anonymity at issue here is a little different from the anonymity at issue in cases where suit is brought against an anonymous speaker. There, nobody knows the name of the anonymous party. In this situation, though, the parties and the court know the names of the anonymous parties, but the names are sealed. There is a small category of cases where plaintiffs are allowed to proceed without being identified in the public records of the case because the suit relates to something very embarrassing.

    The best known categories of such cases are the abortion rights cases, where it could be publicly humiliating for the plaintiff to admit that she is seeking an abortion (for example, Roe v. Wade) and cases involving minors.

    Earlier this year, the case Doe v. Reed was a constitutional challenge to the disclosure of the names of petition signers; the case involved the right to stay anonymous and hence it would have surrendered that right to require the signers to be identified by the very act of suing. Another recent example of such a case was when two students who had been abused on AutoAdmit sued to identify the anonymous speakers who had publicly humiliated them. The trial judge allowed the plaintiffs to remain anonymous but ordered the anonymous defendants identified. By contrast, in one of the earlier cases involving a subpoena to identify anonymous defendants, the Virginia Supreme Court held that an Indiana company could not pursue a defamation claim (and a subpoena to identify the anonymous defendant) against anonymous speakers without revealing its own name.

    These cases all turn on how strong the interest in anonymity is given the nature of the litigation, considered against the general presumption that judicial records should be open to public inspection.

    Here the plaintiffs are now adults but were minors at the time of the events alleged in the lawsuit. That they are now adults does not disqualify them -- the cases brought by persons who are now adults, alleging abuse by their priests when they were minors, have usually proceeded with the plaintiffs identified publicly only as Doe.

     

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  10.  
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    Jon Noowtun, Oct 29th, 2010 @ 9:25pm

    Re: Oh, please

    Anybody who acts out in public has no reasonable expectation of privacy under the law. If you don't like that, then don't get drunk and do stupid things in public.


    WRONG!!!!! It's illegal to take photos of anyone or anything without a written consent form!!!!! When you're out in public, you're surround by your own personal privacy shield and nobody is ever allowed to violate that without your permission!!!!!

    Oh, and Gargle is EVIL!!!!!

    www.Pee2PeeNet.net

     

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  11.  
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    Anonymous Coward, Oct 29th, 2010 @ 10:47pm

    How do I get to be a juror on a trial like this?

    How do I get to be a juror on a trial like this?

    "Your honor, we the jury feel we must review the evidence again."

     

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  12.  
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    The Mighty Buzzard (profile), Oct 29th, 2010 @ 11:19pm

    Re: Have you really thought this one through?

    Actually, no. The defendant is entitled to be presumed innocent by the court until a verdict is reached, no matter how much it sucks for the accuser(s). That means presuming any claim made by the plaintiff/prosecutor is false unless given good reason to think otherwise.

     

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    Anonymous Coward, Oct 29th, 2010 @ 11:56pm

    Re: Re: Have you really thought this one through?

    You're thinking of the actual trial where the jury decides whether the the plaintiff's claims are true or not.

    Before that is the part where the judge decides, assuming the plaintiff's claims are true, whether a law has actually been violated or whether the case should just be dismissed, along with other questions like this anonymity issue. (If the judge assumed everything every plaintiff was false, every lawsuit would be dismissed before it got to trial.)

    The defendant has certainly been "presumed innocent" in the sense that he hasn't been forced to pay any damages or punished in any way, and won't be until a jury finds that he did something that a judge has said violates the law.

     

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    Anonymous Coward, Oct 30th, 2010 @ 12:09am

    Re: Oh, please

    Ah, you're right--some quick googling reveals that, at least in Florida, no model release is required. On the other hand, according to the article the girls in question were supposedly minors, which probably makes the charges much worse.

    All of these issues should be basically relevant though: for the anonymity issue, the only balancing should be between the public's interest in knowing about the case and the plaintiff's privacy/emotional distress/etc., and the public interest in the plaintiff's name still seems pretty negligible.

     

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  15.  
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    Christopher (profile), Oct 30th, 2010 @ 12:52am

    Re: age

    Ah, but this guy ASKS whether people are of age and... if you are drinking at all, it's pretty per-forma to assume the girls are 'of age'.

    Really, I don't care here. I think that 'of age' bullshit is a remnant of religious morality, and needs to disappear.

    Now, if these girls were FORCED into this, then they would get more of my sympathy, rather than the none they are getting right now.

     

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  16.  
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    Christopher (profile), Oct 30th, 2010 @ 12:55am

    Re: Re: Oh, please

    Actually, no, it isn't. It is illegal to take the photos and use them for PROFIT PURPOSES without a written consent form.

    Otherwise, beach photographers would have to get every single person to sign a release before putting their pictures up in their photography shops.... that is not how it works.

    If you are out in public, you have NO right to privacy, period and done with.

    Now, if someone is violating your PROPERTY RIGHTS as the FBI wishes to by putting something on your car? That is another story and under another facet of law to be challenged.

     

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  17.  
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    Christopher (profile), Oct 30th, 2010 @ 12:57am

    Re: Re: Oh, please

    No, it doesn't make the 'charges much worse' in the slightest. The fact is that the whole 'minor' thing is a straw man. Frankly, on the beach this summer, I saw a female who I could have SWORN was 21.... she was 12!

    She was a goddamned BODY DOUBLE for a female who was in Playboy.

    It's time to realize that this whole 'minor' thing is meant to treat children as 'lesser' and 'less worthy' of rights than adults are. That is not the case in the slightest, children are absolutely EQUAL to adults except in terms of physical power.

     

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  18.  
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    Christopher (profile), Oct 30th, 2010 @ 12:59am

    Re: Parents granted them autonomy.

    Agreed. Personally, I wish that we would treat children more as adults today (outside of things such as killing someone else, which most children and even teenagers don't understand totally) and make them take responsibility for their own actions and INactions.

    That means getting rid of 'statutory rape', 'child sexual abuse', etc. and putting VERY short SoL's on forcible rape.

    Because basically, after as little as 1 month... it's a 'he said, she said' and MANY teenagers and children go whining to the cops about sexual relationships they were in, to penalize someone else for ending the relationship in question.

     

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  19.  
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    Pixelation, Oct 30th, 2010 @ 7:43am

    Coerced

    It appears that he may have coerced at least one of the girls.
    FTFA... "Francis has pleaded guilty to criminal charges of not having kept proper records involving one of the plaintiffs, and he was convicted in state court in Florida of coercing another one of the plaintiffs into prostitution as a minor for paying her $50 to appear on camera"

     

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  20.  
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    Michael Price (profile), Oct 30th, 2010 @ 8:48am

    They always were

    "and the women are now appealing. "

    I would have thought they were appealing at the time, otherwise they wouldn't be in the video.

     

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  21.  
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    Anonymous Coward, Oct 30th, 2010 @ 11:18am

    Re: age

    one a slut always a slut

     

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  22.  
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    RD, Oct 30th, 2010 @ 12:42pm

    Oh COME ON!

    Jesus Christ who let the pedophile back in? This guy keeps spewing his disgusting views on sex with children all over the damn interet, from here to USAtoday and other forums.

    PLEASE GO AWAY!

     

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  23.  
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    nasch (profile), Oct 30th, 2010 @ 1:58pm

    Re: Re: age

    I think that 'of age' bullshit is a remnant of religious morality, and needs to disappear.

    I think it's better than 12 year olds aren't allowed to sign legally binding contracts. Just for example.

     

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  24.  
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    nasch (profile), Oct 30th, 2010 @ 2:01pm

    Re: Re: Re: Oh, please

    Jon Noowtun is a parody character in the vein of Stephen Colbert (the character, not the actual person who happens to have the same name).

     

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  25.  
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    nasch (profile), Oct 30th, 2010 @ 2:04pm

    Re: Re: Re: Oh, please

    That is not the case in the slightest, children are absolutely EQUAL to adults except in terms of physical power.

    You don't have children, do you? I love kids, but they are absolutely not equal to adults in many ways other than physical power. Judgment, emotional maturity, ability to reason through consequences, etc. It is completely appropriate and necessary for the law to treat children differently from adults.

     

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  26.  
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    Anonymous Coward, Oct 30th, 2010 @ 3:13pm

    Re: Re: age

    religious morality? Is there any other kind?

    If your morality doesn't have some sort of authority behind it, why should anyone listen to it?

     

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  27.  
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    Black Patriot (profile), Oct 31st, 2010 @ 2:29am

    Re: Re: Re: age

    we have morality by majority, enforced by the courts and the police. There doesn't need to be an omnipotent power to enforce morality, not that God has done much to stop immoral behavior in the past, but that's a discussion best left for another day.

     

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  28.  
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    GSV Eat Me Reality (profile), Oct 31st, 2010 @ 6:00pm

    Re: Re: Oh, please

    Yeah, sure.

    So the next time I'm up at the Rushmore monument, I'll make sure to get consent forms from any of the dozens of random strangers who may be in the frame of my camera lens.

    Are you an idiot, or a lawyer? (Not that the two are mutually incompatible)

    GSVEMR

     

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  29.  
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    GSV Eat Me Reality (profile), Oct 31st, 2010 @ 6:05pm

    Re: Re: Parents granted them autonomy.

    Christopher, I wish that as a forty something self-employed professional loyal taxpaying citizen, that I could be treated as an adult ;-)

    But that's wishing for fishes.

    GSVEMR

     

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  30.  
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    GSV Eat Me Reality (profile), Oct 31st, 2010 @ 6:15pm

    Re: Re: Oh, please

    With all due respect, I grew up in the 70s. I did a lot of stupid things back then, in public; and never had the thought that I'd actually sue anyone over my own behaviour.Dealt with the negative consequences myself; and got over them.

    It's called taking responsibility for one's own actions; which seems to be a dying "ideology" in this country.

    Shit like this just makes more work for more of the children being programmed by lawyer degrees.

    GSVEMR

     

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  31.  
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    nasch (profile), Oct 31st, 2010 @ 6:45pm

    Re: Re: Re: Oh, please

    You need to adjust your sarcasm detector.

     

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  32.  
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    tax cpe, Oct 31st, 2010 @ 7:12pm

    Re:

    Tell that to a lot of young 'uns these days. It has almost become a norm that someone is going to do something stupid when they get drunk in a public place. I don't know why that has become a regular happening these days.

     

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  33.  
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    Rose M. Welch (profile), Oct 31st, 2010 @ 8:10pm

    Re: Have you really thought this one through?

    Actually, most of the GGW parties on are private property and are very clearly GGW areas. They have signs and all kinds of crap up. Judges have ruled that you can't go to this private party, drink, show your boobs, and then stop the presses (so to speak) later. And I'm good with that, personally.

    I feel sorry for their embarrassment, but you can't say no AFTER the fact.

     

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  34.  
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    AJB, Nov 1st, 2010 @ 7:21am

    Stupid is...

    To co-opt and potentially infringe on Forrest Gump, Stupid is as Stupid Does. Being young, drunk and stupid is not against the law. Neither is capturing it on video and selling photos of public events. These are the repercussions your parents warned you about. I'm SURE the parents were mighty proud of their daughter's behavior. Why any parent would foot the bill for this yearly Bacchanal masquerading as Spring Break is beyond me. I kept my kids at home, despite pleading, begging, threats and tears. They're YOUR kids. Be parents.

     

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  35.  
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    Josh in CharlotteNC (profile), Nov 1st, 2010 @ 7:27am

    Re: Re: Re: Re: Oh, please

    "You don't have children, do you? I love kids, but they are absolutely not equal to adults in many ways other than physical power. Judgment, emotional maturity, ability to reason through consequences, etc. It is completely appropriate and necessary for the law to treat children differently from adults."

    That same argument has been made in the past to deny civil rights to other groups including women and minorities.

    Now, I'm not saying that a 3-year old should be able to scribble their name on a document in crayon and be liable for it - but be aware that '18-years and you're an adult' is completely arbitrary. I've known 16-year olds more mature than college graduates - and I bet you could find others pretty easily if you looked.

     

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  36.  
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    nasch (profile), Nov 1st, 2010 @ 7:54am

    Re: Re: Re: Re: Re: Oh, please

    Of course it's arbitrary, it has to be. The law can't say "you can sign a contract when you're mature enough to handle it", that would be a disaster. We have to pick an age when we think people are generally able to handle such responsibilities. In the US, we've decided on 18, and that seems fairly reasonable to me.

     

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  37.  
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    limit?, Nov 1st, 2010 @ 8:24am

    @age
    well in some country's they are of legal age and why discriminate due to age? don't old women already have to deal whit that? why should the young ones?

     

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  38.  
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    Anonymous Coward, Nov 1st, 2010 @ 3:08pm

    Re:

    What a stupid argument. We're not in those countries, and old women are responsible for their actions. Children can't be, and it does them no favors to spare them this "discrimination." Other countries may pick other ages to draw the line. We've picked this age. You can argue that the line should be different, but you'd still have a line, and we would still "discriminate" with respect to people below it.

    Since these women were minors those videos are and should be illegal.

     

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  39.  
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    Erin B., Nov 1st, 2010 @ 4:48pm

    Here's the thing that nobody has brought up, which I find rather relevant: oftentimes these cases turn into character judgments rather than legal judgments.

    Basically, what's been said in these comments is reiterated in an even bitchier tone. "Well, if you weren't such a drunk slut then you wouldn't have this problem!" Debatable. That's not the point, though. The point is that the participants were under the legal age of consent for a pornographic product. Period. End of discussion.

    The point is that they're suing Joe Francis because they feel they were taken advantage of when they were a) drunk and b) too young to understand the full weight of their actions. Given that Francis and his organization have a long history of falsifying release forms, badgering women into performing acts they're uncomfortable with, and targeting women too drunk to refuse, I'd say they have a solid case.

    Now, whether they actually deserve damages or not is up to a jury to decide. However, it seems cruel to force these women to endure further humiliation. The plain publication of their full and legal names isn't humiliation in and of itself, though I'm sure that'd be a truly awesome thing to have to worry about an employer running across in the course of a routine Google query. However: once news organizations have access to their full names, it becomes quite simple to start investigating their respective histories. And then anyone paying attention to the case stops by at each report of an alleged sexual act in the plaintiffs' histories and the chorus of "slut slut slut slut slut!" begins anew. That is something they deserve to not have to deal with again.

    Any case dealing with the difficult and complicated nature of consent eventually boils down to: Well, how slutty are you generally? If you are more than x degree of slut, then you deserve whatever happens to you. Please note that x is a shifting target.

    The plaintiffs are suing for damages stemming from an incident that occurred when they were minors. Given this and that the nature of the damages has to do with the humiliation associated with the prudish American attitude to public acknowledgements of sexuality, it seems silly and pointless to publish their names.

     

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