Morgan v. State

• Decision Date: 30 July 1976
• Docket Number: No. 48555,48555
• Citation: 337 So.2d 951
• Parties: 1 Media L. Rep. 2589 Lucy Ware MORGAN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 951

337 So.2d 951

1 Media L. Rep. 2589

Lucy Ware MORGAN, Petitioner, v. STATE of Florida, Respondent.

No. 48555.

Supreme Court of Florida.

July 30, 1976.

Rehearing Denied Oct. 27, 1976.

William C. Ballard, Baynard, Lang & Ballard, St. Petersburg, and Talbot D'Alemberte, Steel, Hector & Davis, Miami, for petitioner.

Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for respondent.

C. Gary Williams, Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Florida Society of Newspaper Editors, amicus curiae.

Eugene T. Whitworth, Gainesville, and James H. Gillis, Tallahassee, for Florida Prosecuting Attys. Ass'n, Inc., amicus curiae.

Parker D. Thomson and James D. Spaniolo, Paul & Thomson, Miami, for The Miami Herald Publishing Co., amicus curiae.

Larry L. Simms, Miami, for The Reporters Committee for Freedom of the Press, amicus curiae.

Sanford L. Bohrer, Miami, for The American Civil Liberties Union Foundation, Inc., amicus curiae.

HATCHETT, Justice.

This case raises questions about the relationship between journalists and persons who give them information for publication, hoping to remain anonymous. Petitioner invokes our conflict certiorari jurisdiction, pursuant to art. V, § 3(b)(3) of the Florida Constitution (1975) and Rule 4.5(c)(6), Florida Appellate Rules, 1962 Revision. Conflict is alleged to exist between the decision below affirming petitioner's conviction, reported at 325 So.2d 40 and various other Florida appellate decisions. E.g., Tracey v. State, 130 So.2d 605 (Fla.1961); Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); Penny v. State, 140 Fla. 155, 191 So. 190 (1939).

Petitioner is a newspaper reporter. She seeks to overturn her second contempt conviction for refusal to disclose the source of certain information published in a newspaper article. Under her byline, on November 1, 1973, the Pasco Times published a synopsis of a sealed presentment, ¹ returned by a grand jury, which was investigating charges of official corruption in Dade City. The day the article was published the state attorney questioned petitioner as to the source of her information and, when she declined to answer, secured a contempt conviction and five month jail sentence, all within twelve hours of the article's publication. On appeal to the District Court of Appeal, Second District, the conviction was reversed. ²

Even before the Second District reversed petitioner's first contempt conviction, she had been convicted a second time, for failure to answer the same questions, asked this time in the presence of the grand jury. ³ The second contempt prosecution began with an order to show cause which was met by a motion to dismiss on First Amendment grounds, and also on the ground that the show cause order did not specify the nature of the grand jury proceedings, during which petitioner was questioned. After the parties stipulated as to the nature of the grand jury proceedings, the motion to dismiss was denied and petitioner was convicted. On appeal, the Second District affirmed the conviction and, on rehearing, upheld petitioner's 90 day sentence. Morgan v. State, 325 So.2d 40 (Fla.App.2nd 1975). The District Court distinguished the present case from the initial contempt prosecution on the ground that the state attorney had conducted the second interrogation on behalf of the grand jury, rather than on his own behalf.

When last faced with the question of reportorial privilege, we decided ⁴ that journalists had no 'privilege of confidential communication, as between themselves and their informants.' Clein v. State, 52 So.2d 117, 120 (Fla.1950) (reh.den.1951). We adopted as our own the position 'stated in Re Wayne, 4 Haw.Dist.Ct.R. 475,' Id:

Though there is a canon of journalistic ethics forbidding the disclosure of a newspaper's source of information,--a canon worthy of respect and undoubtedly well founded, it is subject to a qualification--it must yield when in conflict with the interests of justice,--the private interest involved must yield to the interests of the public.

Id.

Events in intervening years suggest that important public interests, as well as private interests, may be served by publication of information the press receives from confidential informants. ⁵ The United States Supreme Court has now sanctioned the view that the First Amendment affords 'some protection for seeking out the news.' Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972). Because of these developments, ⁶ the District Court of Appeal reached the conclusion that 'it is probable that the ruling in Clein is no longer the law.' Morgan v. State, 325 So.2d at 43. The attorney general's office also took the position, both in its brief and at oral argument, that Branzburg v. Hayes, supra, and companion cases, ⁷ have superseded the Clein decision.

The reporters in the Branzburg trilogy were brought before grand juries to testify as to 'traffic in illegal drugs . . . assassination attempts on the President, and . . . (it was assumed) violent disorders endangering persons and property,' 408 U.S. at 701, 92 S.Ct. at 2666, 33 L.Ed.2d at 651, after published accounts concerning such criminal activity appeared, purportedly based on the subpoenaed reporters' personal observation. The journalists objected on the ground that requiring them to testify would 'driv(e) a wedge of distrust and silence between the news media' and their confidential informants, with the result that certain information would eventually become unavailable to the public. In one case, it was argued that merely requiring a reporter to appear, in response to a subpoena, jeopardized the free flow of information in a manner incompatible with the First Amendment. Deciding the cases adversely to the journalists, the Court rejected the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof . . . (because) . . . crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.

408 U.S. at 692, 92 S.Ct. at 2662, 33 L.Ed.2d at 646.

In an opinion by Mr. Justice White, writing for four members of a five man majority, the Court limited its holding to grand juries' good faith investigations of crime.

The present case differs from Branzburg in that the grand jury before whom petitioner appeared was not investigating a crime. A grand jury is ordinarily under no obligation to announce the purpose of any investigation it undertakes, but here the prosecution stipulated in the trial court that the contempt charge was predicated on petitioner's refusal to answer questions asked in the course of an investigation of a violation of Section 905.24, Florida Statutes (1975). ⁸ In keeping with the stipulation, we are bound to conclude that the grand jury was not investigating a criminal matter because Section 905.24, Florida Statutes (1975), does not make criminal the conduct it proscribes. Morgan v. State, 309 So.2d 552 (Fla.App.2nd 1975). It was the substance of the grand jury's Presentment, moreover, that was prematurely disclosed. 'The only 'crime' set forth in Ch. 905, Supra, relates to revealing the Testimony of a witness before the grand jury, and there is no contention made here that such was the nature of the leak under investigation.' Morgan v. State, 325 So.2d at 43.

Mr. Justice Powell, in casting the deciding vote against the reporters in Branzburg, 'emphasize(d) . . . the limited nature of the Court's holding.' 408 U.S. at 709, 92 S.Ct. at 2671, 33 L.Ed.2d at 656. In an 'engimatic concurring opinion,' 408 U.S. at 725, 92 S.Ct. 2646 (Stewart, J., dissenting), Mr. Justice Powell wrote:

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 . . . has . . . reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court . . .. 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. 408 U.S. at 709, 92 S.Ct. at 2671, 33 L.Ed.2d at 656.

Although the plurality opinion rejected even a qualified reportorial privilege in terms, Mr. Justice Powell agreed with the dissenting justices that a reportorial privilege should be recognized in some circumstances. See generally Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514; Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Unlike Mr. Justice Powell, the four dissenting justices would have found the privilege applicable in Branzburg, notwithstanding the serious nature of the crimes under investigation there.

The Branzburg dissenting and concurring opinions recognize news gathering as an essential precondition to dissemination of news, and the plurality opinion also conceded that 'without some protection for seeking out the news, freedom of the press could be eviscerated.' Branzburg v. Hayes, 408 U.S. at 681, 92 S.Ct. at 2656, 33 L.Ed.2d at 639. Of course, no such privilege can amount to an absolute right to an unimpeded flow of information in all places and at all times. Application of the privilege in a given case involves 'the striking of a proper balance.' 408 U.S. at 709, 92 S.Ct. at 2671, 33 L.Ed.2d at 656. As was pointed out in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), almost any governmental restriction on action could 'be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information . . ..' 381 U.S. at 17, 85 S.Ct. at 1281, 14 L.Ed.2d at 190.

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