Clear Channel Communications, Inc. v. Murray, 93-3434

• Decision Date: 04 May 1994
• Docket Number: No. 93-3434,93-3434
• Citation: 636 So.2d 818
• Parties: 19 Fla. L. Weekly D1003 CLEAR CHANNEL COMMUNICATIONS, INC. (WAWS, Channel 30, Jacksonville, Florida), Petitioner, v. Gerald D. MURRAY, Respondent.
• Court: Florida District Court of Appeals

Page 818

636 So.2d 818

19 Fla. L. Weekly D1003

CLEAR CHANNEL COMMUNICATIONS, INC. (WAWS, Channel 30 Jacksonville, Florida), Petitioner, v. Gerald D. MURRAY, Respondent.

No. 93-3434.

District Court of Appeal of Florida First District.

May 4, 1994.

Talbot D'Alemberte, Thomas R. Julin, C. Alan Lawson, and Edward M. Mullins, Steel, Hector and Davis, Tallahassee, for petitioner.

Brent D. Shore, Jacksonville, for respondent.

Peter Antonacci, Deputy Atty. Gen., Tallahassee, and Bernard De La Rionda, Asst. State Atty., Jacksonville, for State.

ZEHMER, Chief Judge.

This case came before the court on the emergency petition for certiorari filed by Clear Channel Communication, Inc., to review an order entered by Judge Alban E. Brooke in the criminal case of State v. Gerald D. Murray, Duval County circuit court case number 92-3708 CF, then awaiting trial before Judge Brooke. The order, entered on the morning of October 26, 1993, granted defendant Murray's motion to restrict and prevent the broadcast that evening of a segment of the television program "America's Most Wanted" over Petitioner's television station, WAWS (Channel 30), in Jacksonville. We directed Murray to show cause by 5:00 p.m. that day why the petition should not be granted, and set the matter for oral argument by telephone conference call shortly thereafter. After hearing argument and considering the matters of record before us, we immediately issued an order quashing the trial court order restricting the broadcast and permitted the program to be aired that evening. This court's order also quashed the trial court's sealing of the transcript of the October 26 hearing pursuant to defendant Murray's motion. This opinion explicates the basis for our order on this petition.

Defendant Murray was awaiting trial on charges of first degree murder and sexual battery arising out of the 1990 slaying of a 59-year-old grandmother. The case apparently had extensive notoriety and, on the morning of October 26, Murray's counsel filed an emergency motion seeking a "gag" order restricting certain pretrial publicity. Specifically, the unsworn motion alleged that: Defendant's trial was set for the week of December 13, 1993; Defendant had been informed and believed that a segment of the television show "America's Most Wanted" scheduled for airing in the Jacksonville area "will contain specific details and allegations with regard to his case as well as statements from the victim's family"; and, if this segment was broadcast, "the Defendant will be significantly prejudiced, especially since the broadcast is being aired approximately six (6) weeks prior to the Defendant's scheduled trial date." The motion prayed for "entry of an Order restricting and preventing the broadcast of this segment of 'America's Most Wanted' by WAWS (Channel 30) or any other media source during the pendency of the Defendant's trial." Petitioner was notified of the motion and an emergency hearing thereon, and appeared through counsel. At the hearing, defendant Murray's counsel orally moved to seal the motion and requested that the hearing be held in camera. No evidence was presented at the hearing and the motion was decided on the basis of arguments and factual representations by counsel for Murray and Petitioner.

Based on these presentations and argument, the trial court ordered that: (1) the motion to seal the emergency motion is denied; (2) the motion to hold the hearing on the motion in camera is granted; (3) the motion for emergency relief is granted in part and denied in part, in that: WAWS (Channel 30) is prohibited from broadcasting any segments of "America's Most Wanted" at the scheduled time on October 26

to the extent that such program contains non-news segments that refer to defendant Gerald D. Murray. An illustration of a non-news portion that is prohibited by this Order is interviews of the victim's family members. The defendant's motion is denied, however, with respect to the other relief sought including the request to prohibit WAWS (Channel 30) from broadcasting news portions of the "America's Most Wanted" program. WAWS (Channel 30) may broadcast those portions of the [program] at 9:00 p.m. on October 26, 1993, that contain news segments regarding defendant Gerald D. Murray.

The order also incorporated, by reference to pages 35 through 37 of the hearing transcript, certain explanations made by the judge during the hearing. ¹

The petition for certiorari now before us was filed within hours after the trial court order was rendered. Petitioner contends that: (1) the order is invalid because notice of the hearing was delivered to Petitioner without service of process; (2) the order is an invalid prior restraint; (3) the order attempts to improperly control editorial discretion; (4) the order was entered without according due process to Petitioner; and (5) the order improperly allows an in camera proceeding and improperly seals the transcript of that proceeding. We directed Respondent Murray to show cause why the relief should not be granted and heard argument on the petition late in the afternoon of that same day. We granted Petitioner review by certiorari and issued an order providing that:

1. The circuit court's order sealing the transcript of the hearing of October 26, 1993, on this motion is hereby quashed.

2. Defendant Murray's motion and the matter submitted in support thereof at the hearing before the circuit court are legally insufficient to support entry of the circuit court's order restricting the broadcast of the described television program, Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), and such order is hereby quashed.

Because the trial court erred in sealing the hearing transcript and because the order restricting the broadcast constitutes an invalid prior restraint in violation of Petitioner's First Amendment right to freedom of the press, we find it unnecessary to reach the remaining issues presented in the petition.

Whether the order under review violates the First Amendment guarantee of freedom of the press is determined principally by reference to the Supreme Court's decision in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). In that case, as in this, the trial court was presented with the difficult task of taking action to preserve to a defendant charged with murder his right to a fair trial by jury as guaranteed by the Sixth Amendment, imposed on the states through the Due Process Clause of the Fourteenth Amendment, in the context of restraining extensive and sensational pretrial publicity of the case by the press. Thus, the Supreme Court was called on to reach an accommodation regarding the obvious tension between the defendant's right to jury trial and the rights of the press under the First Amendment, as we are in this case. In its opinion in the Nebraska Press case, the Court observed that cases presenting a denial of fair trial by reason of such extensive and sensational publicity "are relatively rare" and usually in those instances the trial court can take corrective measures short of imposing by court order a prior restraint on the publication of information about the defendant and the case. 427 U.S. at 553-55, 96 S.Ct. at 2800-01. Discussing the First Amendment provisions that guarantee freedom of the press, which extend to the states through the Due Process Clause of the Fourteenth Amendment, the Court reiterated that the purpose of these guarantees is "to afford special protection against orders that prohibit the publication or broadcast of particular information or commentary--orders that impose a 'previous' or 'prior' restraint on speech." Id. at 556, 96 S.Ct. at 2801. Pointing out that any prior restraint on expression comes to the court with a heavy presumption against its constitutional validity, and that a party seeking to obtain such an order carries a heavy burden of showing justification for the imposition of such a prior restraint, the Court observed that, "The thread running through all these cases is that prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights." Id. at 558-59, 96 S.Ct. at 2802-03. Therefore, to determine whether the danger to the defendant's right to a fair trial by jury overcomes the presumption of unconstitutionality attendant to an order imposing a prior restraint, the opinion set forth the following analysis:

To do so, we must examine the evidence before the trial judge when the order was entered to determine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the...