State v. Globe Communications Corp., 91-3112

• Decision Date: 04 August 1993
• Docket Number: No. 91-3112,91-3112
• Citation: 622 So.2d 1066
• Parties: 18 Fla. L. Week. D1697, 21 Media L. Rep. 2129 STATE of Florida, Appellant, v. GLOBE COMMUNICATIONS CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 1066

622 So.2d 1066

18 Fla. L. Week. D1697, 21 Media L. Rep. 2129

STATE of Florida, Appellant, v. GLOBE COMMUNICATIONS CORPORATION, Appellee.

No. 91-3112.

District Court of Appeal of Florida Fourth District.

Aug. 4, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Richard L. Polin, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, for appellant.

Carey Haughwout and John F. Tierney, III of Tierney & Haughwout, West Palm Beach, for appellee.

Richard J. Ovelmen of Baker & McKenzie, Miami, for amici curiae--The Miami Herald Pub. Co., Nat. Broadcasting Co., Inc., The New York Times Co., The American Civil Liberties Union, The Reporters Committee for Freedom of the Press, The Florida First Amendment Foundation and Gannett Co., Inc.

Bruce W. Sanford, Henry S. Hoberman and Robert D. Lystad of Baker & Hostetler, Washington, D.C., for Amicus Curiae-Society of Professional Journalists.

George K. Rahdert of Rahdert & Anderson, St. Petersburg, for amicus curiae--The Times Pub. Co.

ANSTEAD, Judge.

We affirm the trial court's order holding that section 794.03, Florida Statutes (1987), which mandates criminal sanctions for anyone who identifies a victim of a sexual offense in any instrument of mass communication, violates free speech and free press provisions of the Constitutions of Florida and the United States, both on its face and in the way it is sought to be applied to the appellee newspaper, Globe Communications Corporation in this case. ¹

Section 794.03 prohibits anyone from "print[ing], publish[ing], or broadcast[ing] ... in any instrument of mass communication" the name or other information identifying a victim of a sexual offense. The trial court held the statute did not pass muster under the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, both on its face and as applied to Globe in this case, because it is overbroad, underinclusive, and constitutes a prior restraint on protected speech. The ruling is primarily based upon the decision in The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989), wherein the Supreme Court struck down an award of civil damages predicated upon a violation of section 794.03. In addition, the trial court ruled that the statute was violative of Article I, Section 4 of the Florida Constitution because the protection afforded by this provision is at least as broad as the protection afforded by the First Amendment.

In its brief, the state concedes record support exists for the lower court's conclusion that section 794.03 is unconstitutional as applied to Globe under the facts of this case. Consequently, this appeal is limited to the issue of the facial constitutionality of the statute.

We are in general agreement with the thorough and scholarly opinion of the trial court and we will limit our own observations to parts of the opinion which we conclude require qualification or further explanation. However, we commend the trial court for the extent and quality of its analysis which has not only facilitated our review, but also sets out the facts and the law in a way which is informative and helpful to the legal community and the public alike.

Because we are in general agreement with the trial court's opinion, we quote it here verbatim and in full:

The State of Florida, by its State Attorney, has filed a sworn information in two counts charging that defendant, GLOBE COMMUNICATIONS CORP., did in Palm Beach County, Florida, unlawfully print, publish, or cause to be printed or published in an instrument of mass communication the name, photograph, or other identifying fact or information of the victim of a sexual offense within Chapter 794, Florida Statutes, contrary to Fla.Stat. 794.03. Count One alleges a criminal act in violation of the statute as having occurred on or about April 23, 1991, and Count Two alleges a similar act as having occurred on or about April 30, 1991. A violation of this statute has been denominated by the legislature as a misdemeanor of the second degree.

Defendant through counsel has filed a Motion to Dismiss the Information with numerous attachments consisting of affidavits of corporate officers, employees and third persons who purportedly have knowledge of the sexual battery alleged to have been committed by William Kennedy Smith on a local Palm Beach County woman, Patti Bowman. A trial of the alleged sexual battery will take place in the not too distant future in the Circuit Court of Palm Beach County. This trial will probably become the most celebrated and well-publicized judicial proceeding in America for the year 1991, if it lives up to its advanced billing.

From the affidavits on file in this matter, and from testimony and evidence taken on September 25 to 27, 1991, I find that after the alleged rape was reported to police, Kenneth Harrell, a Globe reporter, launched an investigation into the circumstances of the rape by conventional investigative methods. He interviewed a number of employees and patrons at several Palm Beach bistros that were patronized by the victim and the Kennedys on the night of the incident. These conversations culminated in an interview by Harrell of a Mrs. Elizabeth Ashley Murphy, who claimed to know what happened at the Kennedy estate, and the name of the person claiming to have been assaulted by Smith.

With information thus obtained, Mr. Harrell obtained the victim's address on April 2, 1991, and went there to stake out her home. On arrival, he found that reporters from the "Sunday Mirror", a London tabloid, and the "The Star", an American tabloid, had beaten him to the scene and already had the victim's home and occupants under surveillance. Within hours of Harrell's arrival reporters from the "Boston Herald" and the "New York Post" arrived to begin surveillance of the premises.

From conversations with his competitors, Harrell learned that they already had ascertained the victim's identity. As the days progressed, a small army of reporters encamped about the victim's home, with many attempting to communicate with its inhabitants.

On April 4, Harrell approached an individual about to enter the victim's home who identified himself as Denny Abbott, a coordinator for the Victim Services Section, an agency of the Board of County Commissioners of Palm Beach County. He informed Abbott that he was seeking an interview with the victim and named her. Abbott informed Harrell and other reporters at the scene that he, Abbott, was here to talk with the victim and to offer her advice on the kind of help she might receive from the County. Harrell asked Abbott to take a written message inside and deliver it to the victim, which During the week of April 1, 1991, Harrell revisited a number of bars in Palm Beach, seeking additional information. He was able to develop the name of a former fiancee of the victim, one Eugene Kim Schuman. On April 6, 1991, Harrell and Frank Geary interviewed Mr. Schuman and his former brother-in-law, Kevin Krause. Both Schuman and Krause indicated that they knew the woman who was the accuser and confirmed her identity to Harrell. A local woman, Betsy Martin, also confirmed the victim's identity in a phone conversation with Mr. Harrell. He further confirmed her identity in a conversation with Mary Barley, an acquaintance of the victim and Mr. Schuman when they resided in Winter Park, Florida.

Abbott stated he would do. Because the county's victim coordinator, Abbott, was present, the reporters present concluded that circumstantially, the victim's identity and the fact that she resided at this house in Jupiter, had been confirmed.

Thereafter, in a "Globe" issue bearing publication date of April 23rd but distributed to newsstands as early as April 15th, was issued which published the victim's name and other identifying information. The Globe's issue with a cover date of April 30, 1991, but actually distributed to newsstands as early as April 22nd, also identifies the alleged victim by name.

Between April 5 through April 8, 1991, four different British newspapers including The Sunday Mirror, Today and People, published articles identifying the victim by her name, and one, the "Sunday Mirror," also published the victim's photograph. The "Sunday Mirror" has a circulation of nearly 3,000,000, of which between one and two dozen copies are distributed to newstands [sic] in Palm Beach County. Upon stipulation, I considered the affidavit of Marco Marchetti, an officer of Speedimpex U.S.A., Inc., a corporation in New York which distributes "Today", "People", "Sunday Mirror" and other British newspapers in the United States. He lists numerous locations in Florida and in the U.S. where these publications are sold, including Miami, Orlando, Boca Raton, Chicago, New York, Los Angeles and San Francisco.

On April 16, 1991, NBC News in its 6:30 p.m. (EST) nightly news, broadcast the victim's name. The "New York Times" published the victim's name on April 17, 1991, and numerous other newspapers, magazines, etc., have since carried her name. An information accusing Smith of sexual battery and simple battery of the victim, and naming her, was filed with the Clerk of the Circuit Court of Palm Beach County, Florida, on May 9, 1991, which makes the victim's identity a matter of public record. Since the story involves a Kennedy, it is a national and international media event of the year, one of such magnitude that it is to be doubted that scientists working and living in igloos at the South Pole would be able to remain ignorant of it.

The defendant attacks the statute involved as unconstitutional on its face as a violation of the freedom of speech and of the press provisions of the First Amendment to the Constitution of the United States as applied to the States through the Fourteenth Amendment. It is further contended that the statute, F.S. 794.03 (1990) violates Art. 1, Sec. 4 of the Florida Constitution as an abridgement or...