Miami Herald Pub. Co. v. Morejon

• Decision Date: 17 May 1990
• Docket Number: No. 73195,73195
• Citation: 561 So.2d 577
• Parties: , 15 Fla. L. Weekly S302, 17 Media L. Rep. 1920 The MIAMI HERALD PUBLISHING CO., etc., et al., Petitioners, v. Aristides MOREJON, Respondent.
• Court: Florida Supreme Court

Page 577

561 So.2d 577

58 USLW 2701, 15 Fla. L. Weekly S302, 17 Media L. Rep. 1920

The MIAMI HERALD PUBLISHING CO., etc., et al., Petitioners, v. Aristides MOREJON, Respondent.

No. 73195.

Supreme Court of Florida.

May 17, 1990.

Sanford L. Bohrer and Jerold I. Budney of Thomson, Muraro, Bohrer & Razook, P.A., Samuel A. Terilli, Jr., Gen. Counsel, and Richard J. Ovelmen of Baker & McKenzie, Miami, for petitioners.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.

Gregg D. Thomas, Steven L. Brannock and Carol Jean LoCicero of Holland & Knight, Tampa, for amicus curiae Tribune Co.

Dan Paul and Frank Burt of Tew, Jorden, Schulte & Beasley, Miami, and George Freeman, New York Times Co., New York City, for amici curiae New York Times Regional Newspaper Group Florida Newspapers.

McDONALD, Justice.

We review Miami Herald Publishing Co. v. Morejon, 529 So.2d 1204 (Fla. 3d DCA 1988), in which the district court certified the following question as one of great public importance:

[W]hether a news journalist has a qualified privilege under the First Amendment to the United States Constitution, as interpreted by the Florida Supreme Court in Morgan v. State, 337 So.2d 951 (Fla.1976) and Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla.1986), to refuse to divulge information learned as a result of being an eyewitness to a relevant event in a criminal case--i.e., the police arrest and search of the defendant--when the journalist witnesses such an event in connection with a newsgathering mission.

Id. at 1205. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the negative and approve the district court's decision.

A Miami Herald journalist, staff writer Joel Achenbach, witnessed the search and subsequent arrest of Aristides Morejon while on a newsgathering assignment at the Miami International Airport. Achenbach, conducting research for an article to be printed in the Miami Herald Sunday Tropic Magazine, had obtained permission from Metro-Dade police to accompany officers on duty at the airport. While on routine duty, three Metro-Dade police officers arrested Morejon and his traveling companion in an airport public concourse after a consensual search of their luggage revealed four kilos of cocaine. Achenbach witnessed the entire episode, standing five to six feet away and taking notes. Certain details of the search and arrest, some of which allegedly were inconsistent with the officers' account of the arrest, were later printed in Achenbach's article. It is undisputed that Achenbach did not rely on any confidential sources or information for his article.

The state charged Morejon with trafficking in cocaine. Morejon entered a plea of not guilty and filed a motion to suppress evidence discovered as a result of the airport search, claiming that, although he had lived in New York since 1980, he was not sufficiently fluent in English to understand that he could have refused to consent to the search of his luggage. Morejon also filed a discovery demand for the names and addresses of all persons known to have information relevant to the offense charged, pursuant to rule 3.220(b)(1)(i), Florida Rules of Criminal Procedure. In response to this demand, the state attorney identified Achenbach as having relevant information. After depositions of the police officers involved in the arrest established Achenbach as an eyewitness to the entire event, Morejon had the clerk of the court issue a subpoena duces tecum to Achenbach to appear for a discovery deposition. Achenbach, in conjunction with the Miami Herald, filed a motion to quash the subpoena, claiming a reporter's qualified privilege to refuse to testify under the first amendment to the United States Constitution. The trial court denied the motion to quash and ordered Achenbach to submit to the deposition, finding that no qualified privilege existed with respect to Achenbach's eyewitness observations of the police search and arrest of Morejon. The trial court further concluded that, in the alternative, even if such a privilege existed, a considered weighing of the respective interests involved overcame it.

The Miami Herald petitioned the district court for a writ of certiorari seeking review of the trial court's order. The district court refused to grant the writ, holding that the reporter's qualified privilege simply "has utterly no application to information learned by a journalist as a result of being an eyewitness to a relevant event in a subsequent court proceeding" such as the police search and arrest of Morejon. 529 So.2d at 1208. In order to permit further review the district court certified the aforementioned question to this Court as being of great public importance.

The acknowledged starting point in any examination of a purported first amendment reporter's privilege claim is Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Branzburg dealt with a trilogy of cases involving reporters brought before grand juries to testify concerning drug trafficking, assassination attempts on the President, and other acts of violence endangering persons and property. The reporters argued that, if forced to respond to subpoenas issued by the respective grand juries and identify their sources of information or disclose other confidences their informants would refuse or be reluctant to furnish newsworthy information in the future. Thus, sources of newsworthy information would "dry up" and certain information eventually would become unavailable to the public. The reporters asserted that placing such a burden on the newsgathering process made compelled disclosure from reporters constitutionally suspect and required a privileged position for their testimony.

In a plurality opinion authored by Justice White the Supreme Court decided the case adversely to the reporters, rejecting their claim of a qualified privilege. The plurality, however, carefully noted that it was not suggesting that newsgathering did not qualify for any first amendment protection; for, "without some protection for seeking out the news, freedom of the press could be eviscerated." 408 U.S. at 681, 92 S.Ct. at 2656. The plurality limited its holding to grand jury investigations conducted in good faith. Justice Powell, in casting the deciding vote against the reporters in his concurring opinion, emphasized the "limited nature of the Court's holding." Id. at 709, 92 S.Ct. at 2671. He stated further:

As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Id. at 709-10, 92 S.Ct. at 2671 (Powell, J., concurring) (emphasis added, footnote omitted).

Since Branzburg this Court has twice had occasion to consider the existence and scope of the reporter's privilege in Florida. ¹ In Morgan v. State, 337 So.2d 951 (Fla.1976), this Court overturned a contempt citation issued against a reporter for failing to reveal the identity of the source of information for her article, published in the Pasco Times, containing a synopsis of a sealed grand jury presentment. In deciding whether Morgan was privileged to refuse to reveal her source, this Court adopted the approach taken by Justice Powell in his concurring opinion in Branzburg, i.e., the application of the reporter's privilege in a given case involves striking a proper balance between constitutional and societal interests. We found that the public interest in unencumbered access to information from anonymous sources outweighed the generalized governmental interest in the secrecy of grand jury proceedings sought to be advanced in compelling disclosure of the confidential informant's identity. Thus, in Morgan we recognized for the first time a limited or qualified reporter's privilege against the forced revelation of confidential sources.

This Court further addressed the qualified reporter's privilege recognized by Morgan in Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla.1986), which arose out of a challenge to a contempt citation issued against a Tampa Tribune reporter. The reporter coauthored a Tribune article announcing that an influential resident had filed a complaint with the ethics commission charging two county commissioners with misuse of office. When the reporter refused to reveal the identity of his confidential source, the circuit court found him guilty of contempt. This Court overturned the contempt citation. Following the case-by-case balancing analysis utilized in Morgan, we held that the limited and qualified privilege that a reporter has to protect his sources of information outweighed the public interests in prosecution for a violation of a statute which basically amounted to a private interest in reputation. ² 489 So.2d at 724.

In the case at bar, in order to determine whether to compel Achenbach to appear for deposition and answer questions regarding his eyewitness observations of the event in question, we must first inquire into whether Achenbach has any...