Brumfield v. State

• Decision Date: 10 December 1958
• Citation: 108 So.2d 33
• Parties: Robert BRUMFIELD, Appellant, v. STATE of Florida, Appellee. Ben SILVER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 33

108 So.2d 33

Robert BRUMFIELD, Appellant, v. STATE of Florida, Appellee.

Ben SILVER, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Dec. 10, 1958.

Rehearing Denied Jan. 28, 1959.

Albert B. Bernstein and Bernstein & Hodson, Miami, for appellant brumfield.

Scott, McCarthy, Preston, Steel & Gilleland, Miami, for appellant Silver.

Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.

Herbert L. Heiken, Miami Beach, Sinclair & Nicholson, Howard W. Dixon, Park H. Campbell, John E. Kirk, Melbourne L. Martin, Walter Humkey and Thomas McE. Johnston, Miami, amici curiae.

DREW, Justice.

The appellants in these causes, consolidated for treatment in this opinion, have been adjudged in contempt of court for willful violation of an order of the Circuit Court for Dade County prohibiting the photographing of a certain prisoner 'in the jail preceding his arraignment, or on his way to or from the court session * * * or in the courtroom. ¹

The prisoner, Howard B. Picott, had been indicted for rape. Prior to the quoted order he was the subject of extensive local publicity concerning his arrest and past criminal record. The appellant Silver, with knowledge of the order, obtained motion pictures of the prisoner on the 19th floor of the Dade County Courthouse as he was brought from the elevator leading to the detention quarters above. The other appellant, Brumfield, stationed himself a short distance from the entrance to the courtroom in which the arraignment proceedings were to be held ² and there, in his capacity as television photographer, took certain photographs of Picott. Appellants (and others not here involved) were immediately cited for contempt. The films were not actually used or broadcast.

At the hearing below and upon this appeal appellants attack the validity of the original order of the court. Specifically they raise questions of freedom of the press under the First and Fourteenth Amendments of the Constitution of the United States and under Sections 1 and 13 of the Declaration of Rights of the Constitution of Florida, F.S.A. Their major contention appears to be that the court's injunctive power in this connection should be restricted to the prevention of acts or conduct which constitute physical disturbances of courtroom decorum. Rule 35 ³ of the Florida Code of Ethics, 31 F.S.A., governing judges is cited as embodying such a limited proscription. ⁴

While the record evidence is probably adequate to demonstrate that the photographic techniques used by appellants were not such as to cause inordinate disturbance or indignities by distracting lights or sound, the point is not determinative of the issue at hand. Nor is the fact that the contested order was quite ineffective to curtail photographic publicity generally since pictures of the prisoner had already been widely published in the vicinity by both the newspaper and television medium. ⁵

The order, in fact, was not on its face directed against publication of any matter or material whatsoever. The only 'freedom' restrained is one shared by press and public alike: an alleged right of full and complete access to participants in events of public interest or newsworthiness. A recent federal court decision, dealing with the same asserted privilege of photographing parties to judicial proceedings beyond the court confines, recognizes this clear distinction: 'Realizing that we are not dealing with freedom of expression at all but with rules having to do with gaining access to information on matters of public interest, can it be argued that here there is some constitutional right for everybody not to be interfered with in finding out things about (or making photographic reproductions of) everybody else?' ⁶

Appellants in this case propose no theory, nor are we conscious of any, upon which the right to gather news, by photographic or other processes, can be extended to proceedings other than those public in character, however newsworthy the events might be. They rely, first, upon the public character of judicial proceedings under constitutional provisions securing public trials, and, second, upon the lack of any protectable right of privacy personal to the prisoner.

On the first point we are referred to numerous decisions dealing with permissible public comment on judicial proceedings, and the limits of a court's power to place prior restraints on publication or to penalize press comment as a contempt, even in the absence of prior court order, as an obstruction of justice:

'A trial is a public event. What transpires in the courtroom is public property. * * * Those who can see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire proceedings before it.' ⁷

Those cases construe applicable constitutional inhibitions to impose the 'clear and present danger' test as a condition or limitation of a court's power to restrain or penalize free comment, in contrast to the usual rule by which a court, pursuant to its duty to maintain an orderly system of justice and to conduct all proceedings in a manner which accords due process of law to the parties before it, may restrain or penalize conduct reasonably calculated to obstruct those ends.

When the conduct restrained involves the exercise of a constitutionally protected right or freedom, as of speech, press, or religion, then a different test may reasonably be applied or a more stringent necessity required before such restraint or control is warranted. But it does not follow that a court is governed by the same ruled in restricting access to its own proceedings (or penalizing a direct violation of such restrictions) as in restraining or penalizing independent conduct of third parties. The safeguard against an abusive judicial 'censorship' of its proceedings by such means is the same as that which controls all judicial action in this direction: the requirement that such measures must appear to be necessary to a fair trial. ⁸

There has not been shown to exist any compulsion upon a court or any other governmental agency to make available for public consumption all aspects of each step of every proceeding conducted under its authority. In the case of the judiciary, historical experience, culminating in our constitutional guarantees, showed only the necessity for 'public trial.' This requirement, even if it should be deemed to include the preliminary steps involved in the situation at bar and even if a ban on photography by public and press alike is considered to be a restriction on the public nature of the proceedings, ⁹ has always been subject to limitation. Conceding the force of the argument that the rationale which gave birth to this principle is concerned with the public interest as well as with the rights of the accused, ¹⁰ its purpose in either event is 'that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility, and to the importance of their functions.' ¹¹ The conclusion of the author of the quoted text, supported by numerous decisions, is that 'the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend.' Thus it is a generally recognized rule that a criminal trial judge may exclude all or any portion of the public from a trial, depending upon the necessities of the situation, in order to prevent disorders and disturbances of any nature which would interfere with the orderly course of the proceedings. ¹² Nor, presumably, is it error to refuse to news gathering forces the right to obtain or release the name of a rape prosecutrix, or to keep certain portions of judicial records confidential. ¹³ The purpose of such restrictions is manifestly not confined to prevention of physical disturbance, and the power to limit public information or exclude spectators would certainly include the power to limit the vicarious audience by prohibiting photography.

None of the cited cases is authority for the proposition, nor does our search reveal one which holds, that the 'clear and present danger' rule governs a court's power to restrict, upon occasion, the public character of judicial proceedings or to regulate or place certain limitations on public access to persons in custody. The requirement has been simply that such limitations must appear to be reasonably required for the orderly administration of justice. ¹⁴ The duty of the court in this respect is not confined to preserving order or decorum in the courtroom itself, as appellants appear to believe and as might be inferred from the language of Canon 35, supra, but obviously relates to the entire process from the inception, in the case of criminal proceedings, of official custody of the accused. ¹⁵

It is generally conceded that under certain circumstances the public and press alike might be denied permission to interview or otherwise make personal contact with a prisoner awaiting trial. Certainly he might be brought to the courtroom, for arraignment, by a route other than the public corridor if physical facilities were available. If constitutional inhibitions do not prevent that procedure, can they operate to prevent a court's accomplishing the same end by injunctive order if circumstances dictate such precautions? We think not.

Concluding, as we do, that the case at bar does not involve a prior restraint on free expression or reporting, but simply a restraint on public trial by which portions of the proceedings assume the aspects of a private event in connection with which attendance and conduct could reasonably be restricted or controlled, then the record before us is ample to sustain a finding of proper relationship between...