Miami Herald Pub. Co., a Div. of Knight-Ridder Newspapers, Inc. v. Morphonios, KNIGHT-RIDDER

• Decision Date: 05 February 1985
• Docket Number: KNIGHT-RIDDER,No. 85-103,C,WPLG-T,85-103
• Citation: 467 So.2d 1026,10 Fla. L. Weekly 319
• Parties: 10 Fla. L. Weekly 319, 11 Media L. Rep. 1424 MIAMI HERALD PUBLISHING CO., A DIVISION OFNEWSPAPERS, INC., Post-Newsweek Stations, Florida, Inc., a Florida corporation which operateshannel 10, WBC Broadcasting Corp., a Florida corporation which operates WTVJ, Channel 4, and Sunbeam Television Corp., a Florida corporation which operates WSVN, Channel 7, Petitioners, v. The Honorable Ellen MORPHONIOS, as Judge of the Circuit Court of the 11th Judicial Circuit, Dade County, Florida, and Hector Arencibia, Respondents.
• Court: Florida District Court of Appeals

Page 1026

467 So.2d 1026

10 Fla. L. Weekly 319, 11 Media L. Rep. 1424

MIAMI HERALD PUBLISHING CO., A DIVISION OF KNIGHT-RIDDER NEWSPAPERS, INC., Post-Newsweek Stations, Florida, Inc., a Florida corporation which operates WPLG-TV, Channel 10, WBC Broadcasting Corp., a Florida corporation which operates WTVJ, Channel 4, and Sunbeam Television Corp., a Florida corporation which operates WSVN, Channel 7, Petitioners, v. The Honorable Ellen MORPHONIOS, as Judge of the Circuit Court of the 11th Judicial Circuit, Dade County, Florida, and Hector Arencibia, Respondents.

No. 85-103.

District Court of Appeal of Florida,

Third District.

Feb. 5, 1985.

Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Jerold I. Budney, Richard J. Ovelmen and Samuel A. Terilli, Sharpstein & Sharpstein and Richard A. Sharpstein, Laura Besvinick and Janice Burton Sharpstein, Steel Hector & Davis and Thomas R. Julin and Joan H. Lowenstein, Miami, for petitioners.

Richard Schiffrin, Akhtar Hussain, Miami, for respondents.

Before BARKDULL, HENDRY and BASKIN, JJ.

HENDRY, Judge.

This cause came before the court upon the Miami Herald Publishing Company's petition ¹ for emergency review of a protective order entered by the respondent judge which prevented petitioners from publishing any information regarding the content of the videotaped trial testimony of the alleged minor victim prior to the showing of the videotape at the actual trial of respondent Arencibia. We have jurisdiction pursuant to Rule 9.100(d), Florida Rules of Appellate Procedure. For reasons more fully developed below, we reverse the order under review. ²

The facts of this case may be stated very briefly. On December 18, 1984, respondent Judge Ellen Morphonios entered an order granting the state's request that the trial testimony of the minor child alleged to be the victim of sexual battery be videotaped for presentation at trial under the authority of former statute, section 918.17, Florida Statutes. ³ Subsequently, on January 10, 1985, the respondent entered an order which granted the media access to the videotaping session, then scheduled to be held on January 12, 1985, but barred the media from printing or in any other way disseminating the contents of the trial testimony prior to the actual use of the videotape at trial, now scheduled to begin on February 25, 1985. The representatives of the various news media took this appeal, challenging the action of the respondent judge as a prior restraint on their ability to report the news (i.e., the trial testimony) as it occurs.

I.

At the outset we note that under the former statute, section 918.17, Florida Statutes (1983), this problem would not have arisen. That statute provided for the videotaping of the trial testimony, for use at trial, of a child 11 years of age or younger in a sexual battery or child abuse case, but only after the trial had commenced. (e.s.). Thus, under this statute, one did not have to be concerned about the prejudice resulting from having the prosecution's case-in-chief widely reported prior to the jury being empanelled. This statute was amended and expanded, however, by chapter 84-36, Laws of Florida, to allow the videotaping of trial testimony of victims or witnesses under age 16 upon proper motion, upon a finding that there is a substantial likelihood that the victim or witness would suffer severe emotional or mental distress if required to testify in open court. It is because the new statute, now codified at section 90.90, Florida Statutes (Supp.1984), omitted the requirement that the videotaping be done only after commencement of the actual trial that the interests protected by the first and sixth amendments now clash. It is because of this change in the statute that we must now confront the inherent tensions between the right of the media to report on crimes of great public concern and the right of the accused to a fair trial by an impartial jury.

II.

Initially, we recognize that any form of prior restraint of expression comes to this court bearing a heavy presumption against its constitutional validity. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Therefore, the party who seeks to have such a restraint upheld carries a heavy burden of showing justification for the imposition of such a restraint. State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1976).

Nevertheless, a trial court has the innate power to control the conduct of the proceedings before it, and it is the trial court's responsibility to protect a defendant in a criminal prosecution from inherently prejudicial influences which threaten the fairness of his trial and the abrogation of his constitutional rights. Miami Herald Publishing Co. v. Lewis, 426 So.2d 1, 4 (Fla.1982), citing Miami Herald v. McIntosh, 340 So.2d at 909. This court must delicately balance the competing yet fundamental rights of an accused to a fair trial by an impartial jury and of the free press guaranteed by the first amendment. The fundamental conflict between these two rights is a difficult one to resolve. Moreover, in effecting this delicate balancing of rights we must be cognizant of the expressed statutory concern for the emotional or mental well-being of a minor victim, which concern has been recognized as a compelling state interest. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).

This case is one of first impression because the amended statutory procedure now allows trial testimony to be given in a pretrial proceeding. Therefore, none of the earlier first amendment versus sixth amendment cases are precisely on point. Cases prior to this one deal with either barring the press from a trial altogether or restraining the press from publishing accounts of pretrial evidentiary proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), which involved the closing of a criminal trial to press and public, held that "the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials ... important aspects of freedom of speech and of the press could be eviscerated." Id. at 100 S.Ct. 2829. However, there is no first amendment protection of the rights of the public and the press to attend pretrial hearings, as distinguished from the right to attend a criminal trial. Miami Herald v. Lewis, 426 So.2d at 6.

The United States Supreme Court has long recognized that adverse publicity can endanger the ability of a defendant to receive a fair trial. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). To...