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

• Court: Florida District Court of Appeals
• Writing for the Court: HENDRY
• 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.
• Decision Date: 05 February 1985
• Docket Number: KNIGHT-RIDDER,No. 85-103,C,WPLG-T

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.

Page 1027

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

Page 1028

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...