Petition of Post-Newsweek Stations, Florida, Inc., POST-NEWSWEEK

• Decision Date: 12 April 1979
• Docket Number: No. 46835,POST-NEWSWEEK,46835
• Citation: 370 So.2d 764
• Parties: , 5 Media L. Rep. 1039 In re Petition ofSTATIONS, FLORIDA, INC., for Change in Code of Judicial Conduct.
• Court: Florida Supreme Court

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370 So.2d 764 14 A.L.R.4th 82, 5 Media L. Rep. 1039 In re Petition of POST-NEWSWEEK STATIONS, FLORIDA, INC., for Change in Code of Judicial Conduct. No. 46835. Supreme Court of Florida. April 12, 1979.

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Talbot D'Alemberte and Donald M. Middlebrooks of Steel, Hector & Davis, Miami, for petitioner.

Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for the Florida Association of Broadcasters, Inc.

Parker Lee McDonald, Ex-Chairman, Orlando, and Harold R. Clark, Chairman, Jacksonville, for the Florida Conference of Circuit Judges.

Richard C. McFarlain, Tallahassee, for The Florida Bar.

Robert Eagan, State's Atty., and Donald A. Lykkebak, Asst. State's Atty., Orlando, for the State of Florida.

Ellis S. Rubin of the Ellis Rubin Law Offices, Miami, for Rommie L. Loudd.

A. Broaddus Livingston, Chairman, and Larry S. Stewart, Chairman-Elect, Miami, for Trial Lawyers Section of The Florida Bar.

C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Society and Professional Journalists, Sigma Delta Chi, Southeast Region and Greater Miami Chapter.

Allan Milledge and Alan Rosenthal of Milledge & Hermelee, Miami, for Sunbeam Television Corp., intervenors.

Richard E. Gerstein, State's Atty., and N. Joseph Durant, Jr., Chief Asst. State's Atty., Miami, for Florida Prosecuting Attorneys Association.

Harold Peter Barkas, Miami, for the Academy of Florida Trial Lawyers.

Joel Hirschhorn of Hirschhorn & Freeman, Miami, Jack O. Johnson, Public Defender, Bartow, for the Florida Public Defender Association.

Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, for the Atty. Gen. of the State of Florida, amici curiae.

SUNDBERG, Justice.

After careful deliberation, we deal today with whether the electronic media ¹ shall be permitted access to the courtrooms of the State of Florida to cover and report judicial proceedings. The issue emerged on January 24, 1975, when Post-Newsweek Stations, Florida, Inc. filed its petition for change in the code of judicial conduct specifically Canon 3 A(7). ² This is a matter of

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original Jurisdiction in this Court pursuant to article V, Florida Constitution.

Respondents to the petition, intervenors, and amici curiae include: the Florida Association of Broadcasters, Inc.; the Florida Conference of Circuit Judges; The Florida Bar; the attorney general of the State of Florida; Rommie L. Loudd; the Trial Lawyers Section of The Florida Bar; the Society of Professional Journalists, Sigma Delta Chi, Southeast Region and Greater Miami Chapter; the Florida Prosecuting Attorneys Association; the Florida Public Defender Association; the Academy of Florida Trial Lawyers; and Sunbeam Television Corporation. Pursuant to the Court's invitation, individuals, officials, organizations, and corporations too numerous to mention have filed comments, reports, and exhibits which number in the thousands of pages.

HISTORY OF THE PROCEEDINGS

By order filed May 21, 1975, this Court denied the portion of the petition which sought approval of a proposed substitute for Canon 3 A(7) but granted the portion seeking a reexamination of the canon for the purpose of making the Court's own revision, if it was so disposed. Pursuant to this order the Court received sundry materials, favorable and opposed, and observed a television video tape prepared under the auspices of the Supreme Court of Washington. Upon examination of these materials, the Court determined that an on-site experimental program should be conducted in the Second Judicial Circuit involving the televising of one civil and one criminal trial subject to specific guidelines, including the consent of all participants. Petition of Post-Newsweek Stations, Florida, Inc., 327 So.2d 1 (Fla.1976). By order dated April 12, 1976, the foregoing interlocutory decision was supplemented to include still photography cameras within the purview of the experiment.

Due to difficulty in obtaining the required consent of participants to conduct the experiment in the Second Judicial Circuit, on September 17, 1976, the Court authorized an expansion of the experiment to include the Ninth Judicial Circuit, ³ and then on December 21, 1976, to include the Fourth and Eighth Judicial Circuits. A termination date of April 1, 1977, was imposed for securing the conduct of the experimental trials. Notwithstanding the territorial enlargement, the attempt to conduct the experimental trials, subject to participant consent, met with total failure. Nevertheless, it was the view of the Court that a test period during which trials would be conducted with electronic media coverage was essential to a reasoned decision on the petition for modification of Canon 3 A(7). Accordingly, by supplemental interlocutory decision filed April 7, 1977, the Court invoked a one-year pilot program to commence on July 1, 1977, during which the electronic media would be permitted to cover judicial proceedings in the courts of this state, without participant consent, but subject to the prior adoption of standards with respect to conduct and technology. Petition of Post-Newsweek Stations, Florida, Inc., 347 So.2d 402 (Fla.1977). In our decision we requested the parties to develop and submit proposed standards for adoption by the Court prior to July 1, 1977.

On June 14, 1977, we filed our opinion promulgating the standards of conduct and technology to govern the one-year pilot program. Petition of Post-Newsweek Stations, Florida, Inc., 347 So.2d 404 (Fla.1977). A copy of the standards is appended to this opinion as Appendix 1. The opinion called for the experiment to commence at 12:01 a. m. on July 5, 1977, and to end at 11:59 p. m. on June 30, 1978. Pursuant to this authorization, proceedings at all levels of the Florida court system were covered by the electronic media. Only trial court proceedings

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were covered by the radio broadcast media. More than 2,750 persons participated as judge, attorney, court attache, juror, or witness in trials covered by the electronic media during the experimental period. ⁴ Although this Court issued several administrative orders clarifying the standards during the course of the pilot program, consistent with the terms of the standards no appellate review was afforded to representatives of the electronic media from orders entered by the trial courts ruling upon matters arising under the standards.

Pursuant to paragraph 9 of the Court's opinion filed June 14, 1977, the parties, media participants in the program, and all participating judges were requested to furnish to the Court, at the conclusion of the pilot program, a report of their experiences under the program. By application dated March 3, 1978, counsel for petitioner requested the Court (i) to allow current submission of papers evaluating the experiment to date and (ii) to allow the continuation of full media coverage after July 1, 1978, pending final decision upon the petition for amendment of Canon 3 A(7). In response the Court established an accelerated briefing schedule and enlarged the invitation for comments concerning the experiment to include any member of the public who had participated, but denied the request to extend the pilot program beyond June 30, 1978. Petition of Post-Newsweek Stations, Florida, Inc., 358 So.2d 1360 (Fla.1978). In rejecting an extension of the termination date, it was stated:

The avowed purpose of the pilot program authorized in these proceedings was to aid this Court in reaching a reasoned decision upon the application for modification of Canon 3 A(7). No cause has been made to appear to require a modification of the procedure earlier established and, in fact, a revision of this procedure arguably will impede the orderly consideration of the issues by this Court.

358 So.2d at 1361.

The pilot program terminated on June 30, 1978. Briefs, reports, letters, resolutions, comments, and exhibits were received through mid-August, 1978. The amount of materials submitted was imposing. The comments reflect honest and deeply felt convictions concerning the propriety of admitting the electronic media to the courtrooms of the State of Florida. We would be remiss not to pause here and accord recognition to the overwhelming majority of trial judges of this state who, while generally unsympathetic to the experiment, made a good faith effort to comply with the terms and spirit of the pilot program. They, once again, demonstrated the quality of our judiciary which, parenthetically, is an important factor in reaching our decision today.

THE SURVEY

At the time of the initial experiment which was to involve only two trials, it was contemplated that academicians from the Florida State University System would interview all trial participants as soon after their participation as feasible. Their responses were to be transcribed and filed in these proceedings as evidence. Unhappily, the interview technique proved impractical once the one-year pilot program was instituted. However, shortly before conclusion of the program a representative of the academic community ⁵ urged upon us the feasibility of a sample survey of the attitudes of the nonjudicial participants ⁶ in the judicial proceedings which had been covered by the electronic media during the experimental period. Although it was apparent that no controlled experiment could be conducted

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due to the lapse of time, the Court was persuaded that a post hoc sample survey of the participants' attitudes would be an aid to our decision, though by no means conclusive. After consultation with counsel for the parties and with their cooperation, we called upon the Judicial Planning Coordination Unit of the Office of the State Courts Administrator (OSCA) to identify through court records the participants in trials which had received electronic media coverage and to devise appropriate questionnaires for submission to the nonjudicial participants. The parameters established for development...