Kidwell v. State, 96-3423

• Decision Date: 11 June 1997
• Docket Number: No. 96-3423,96-3423
• Citation: 696 So.2d 399
• Parties: 22 Fla. L. Weekly D1416, 25 Media L. Rep. 1929 David KIDWELL, Appellant, v. STATE of Florida, Appellee. Fourth District
• Court: Florida District Court of Appeals

Page 399

696 So.2d 399

22 Fla. L. Weekly D1416, 25 Media L. Rep. 1929

David KIDWELL, Appellant, v. STATE of Florida, Appellee.

No. 96-3423.

District Court of Appeal of Florida,

Fourth District.

June 11, 1997.

Rehearing and Clarification

Denied July 14, 1997.

Sanford L. Bohrer of Holland & Knight, Miami, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

Robert Rivas and Florence Snyder Rivas of Rivas & Rivas, Boca Raton, and Jane E. Kirtley, Gregg P. Leslie and Tina Burnside, Arlington, VA, for amicus curiae, The Reporters Committee for Freedom of the Press, Arlington, Virginia.

FARMER, Judge.

At bottom, the issue raised in this contempt proceeding is identical to that decided by this court in Gold Coast Publications Inc. v. State, 669 So.2d 316 (Fla. 4th DCA 1996). We, of course, follow our recent precedent, which means that we affirm the judgment of contempt.

Here a newspaper reporter engaged in a jailhouse interview with a man charged with murder. The defendant had previously given the police a confession. The interview was not on any confidential basis, and the reporter made no promises to defendant of any confidentiality in order to persuade him to talk to the reporter. In a later newspaper article, the reporter wrote extensively about the interview.

After a mistrial was ordered in the criminal case, necessitating a retrial, ¹ the prosecutor subpoenaed the reporter for a deposition for discovery purposes and to adduce at the retrial certain statements made by the defendant to the reporter. The prosecutor openly revealed his intention to use these statements as admissions of the defendant at the retrial. The reporter, however, claimed a privilege on the grounds that his knowledge was acquired while he was engaged in "professional news gathering." After being ordered by the trial judge to answer the prosecutor's questions, the reporter continued to claim the privilege and refused to answer. The trial judge found him in criminal contempt and sentenced him to be incarcerated for 70 days in jail or until he earlier answered the questions, and to pay a fine of $500. This appeal timely followed.

The retrial has since been had and the defendant convicted but without any testimony from the reporter. We must therefore first address why this case is no longer moot. The trial judge has refused to vacate the contempt conviction on account of that circumstance. In doing so, the trial judge has obviously concluded that the contempt conviction is necessary to vindicate the powers of the court in providing access to relevant evidence, and we do not fault him in that determination. The criminal justice system would founder at the very beginning of the process if witnesses with relevant and unprivileged knowledge could decide when they shall be required to testify and the subjects about which they can permissibly be examined. Our system has long recognized the right of both the state and the defendant to "every man's evidence" ² and has provided compulsory process for the attendance and testimony of witnesses. The process for summoning witnesses would soon lack any compulsion if witnesses could refuse compliance with subpoenas issued to procure their testimony.

The reporter argues that he has a First Amendment privilege to refuse to testify about his communications with the criminal defendant even though his conversations were undertaken without any promise of confidentiality. In short, he argues that a reportorial privilege exists for nonconfidential sources when they are acquired in "professional news gathering activities." This argument is directly contrary to our recent holding in Gold Coast Publications. Just as we did there, we rely on Miami Herald Pub. Co. v. Morejon, 561 So.2d 577 (Fla.1990), where the court made clear:

"[T]here is no privilege, qualified, limited, or otherwise, which protects journalists from testifying as to their eyewitness observations of a relevant event in a subsequent court proceeding. The fact that the reporter in this case witnessed the event while on a news gathering mission does not alter our decision.... Unlike the factual situations in Branzburg [v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) ], Morgan [v. State, 337 So.2d 951 (Fla.1976) ], and [Tribune Co. v.] Huffstetler, [489 So.2d 722 (Fla.1986) ], there is no confidential source involved in this case which may 'dry up' if revealed."

561 So.2d at 580-81.

In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Court confronted a claim of privilege by media reporters after they had been served with subpoenas ad testificandum to appear before a Grand Jury and testify about criminal events they had witnessed while engaged in news gathering. The argument made by these reporters was simply stated as follows:

"that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment. Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure."

408 U.S. at 679-680, 92 S.Ct. at 2655-2656. The Court then framed the issue as follows:

"The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence. The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them."

408 U.S. at 682, 92 S.Ct. at 2657. It will, of course, be seen that the claim of the newsmen in Branzburg involved confidential sources rather than, as here, ordinary nonconfidential sources of information.

Proceeding from that statement of the contentions of the newsmen, the court reasoned that:

"It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that '(t)he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.' Associated Press v. NLRB, 301 U.S. 103, 132-133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). It was there held that the Associated Press, a news-gathering and disseminating organization, was not exempt from the requirements of the National Labor Relations Act. The holding was reaffirmed in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-193, 66 S.Ct. 494, 497-498, 90 L.Ed. 614 (1946), where the Court rejected the claim that applying the Fair Labor Standards Act to a newspaper publishing business would abridge the freedom of press guaranteed by the First Amendment. . .. Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), similarly overruled assertions that the First Amendment precluded application of the Sherman Act to a news-gathering and disseminating organization.... Likewise, a newspaper may be subjected to nondiscriminatory forms of general taxation ... The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish. Although it may deter or regulate what is said or published, the press may not circulate knowing or reckless falsehoods damaging to private reputation without subjecting itself to liability for damages, including punitive damages, or even criminal prosecution.... A newspaper or a journalist may also be punished for contempt of court, in appropriate circumstances....

"It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. Zemel v. Rusk, New York Times Co. v. United States, 403 U.S. 713, 728-730, 91 S.Ct. 2140, 2148-2149, 29 L.Ed.2d 822 (1971), (Stewart, J., concurring); Tribune Review Publishing Co. v. Thomas, 254 F.2d 883, 885 (C.A.3 1958); In the Matter of United Press Assns. v. Valente, 308 N.Y. 71, 77, 123 N.E.2d 777, 778 (1954). In Zemel v. Rusk, [381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-1281, 14 L.Ed.2d 179 (1965) ], for example, the Court sustained the Government's refusal to validate passports to Cuba even though that restriction 'render(ed) less than...