The Sarasota Herald-Tribune Tampa v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
THE SARASOTA HERALD-TRIBUNE,
TAMPA TRIBUNE, and WFLA-TV NEWS
CHANNEL 8,
)
)
)
)
Petitioners,
)
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v.
)
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STATE OF FLORIDA and JOSEPH SMITH, )
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Respondents.
)
____________________________________ )
Opinion filed November 17, 2005.
Petition for Writ of Certiorari to the Circuit
Court for Sarasota County; Andrew D.
Owens, Jr., Judge.
Gregg D. Thomas and Rachel E. Fugate of
Holland & Knight LLP, Tampa, for Petitioners.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa, for
Respondent State of Florida.
Elliott C. Metcalfe, Jr., Public Defender, and
Adam Tebrugge, Assistant Public Defender,
Sarasota, for Respondent Joseph Smith.
John R. Blue, Matthew J. Conigliaro, and
Robert E. Biasotti of Carlton Fields, P.A.,
St. Petersburg, for The Honorable Andrew D.
Owens, Jr.
Case No. 2D05-5337
ALTENBERND, Judge.
The Sarasota Herald-Tribune, Tampa Tribune, and WFLA-TV News
Channel 8 (the Media) petition this court to review an order entered by the trial court
that attempts to protect the privacy interests of jurors who are currently serving in the
criminal trial of Joseph P. Smith. Mr. Smith stands accused of having murdered Carlie
Brucia. The case has attracted extraordinary media interest. The trial court’s order also
attempts to protect Mr. Smith’s right to receive a fair trial by jury, uninfluenced by
matters or persons outside the courtroom. The Media challenges the order, claiming
that it violates its rights under the First Amendment and that aspects of the order
constitute prior restraint.
I.
A Questionable “Emergency,” and a First Amendment Issue that is
Created More by the Openness of Florida’s Courts Than by their
Secrecy.
The challenged order, entered on October 21, 2005, is attached to this
opinion as Appendix A. The order basically requires all of the litigants and court
personnel to refer to the jurors by number, instead of name, during court proceedings.
The lawyers are free to ask the jurors the usual questions during voir dire in open court,
except that they are not to reveal the jurors’ names or addresses. The Media is free to
print descriptions of the jurors and observations about their statements and conduct in
the courtroom, but the Media is not permitted to publish the names and addresses of
the jurors even if the Media learns this information from an outside source. The Media is
free to photograph the jury and to publish those photographs, except for the faces of the
jurors. As in all trials, the jurors have been instructed by the trial court not to discuss the
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case with anyone before the case is over. If a juror has a problem or concern, that
matter is to be addressed first to the bailiff or the trial judge and not to any other person.
In this case, the trial court has reinforced these usual rules by instructing the Media not
to have any contact with the jury during the proceedings.
The Media asks this court to quash the portions of the order “restricting
release of juror names, banning photographing jurors, prohibiting the publication of juror
names and addresses, and precluding the media from having any contact with jurors
during the proceedings.” Although the Media describes this matter as an “emergency,”
it admits that it does not make a practice of publishing the names and addresses of
jurors during criminal trials and that it does not normally release photographs of the
faces of such jurors or make any effort to contact them during trial. The Media claims
no desire or intention to do any of these acts during this trial. The Media merely does
not wish to have an order instructing it to do that which it intends to do voluntarily.
Thus, the Media has filed this "emergency" petition more as a matter of principle and as
academic exercise rather than from a genuine need and desire to publish information
that it has determined to be vital to its readers or viewers.
The Media did not file this petition as rapidly as most true emergencies are
filed in this court. The trial court’s October 21, 2005, order was entered two days before
the commencement of jury selection. The Media waited until November 7, 2005, to file
this petition. Thus, the petition was not filed until the jury had been selected and had
already been promised by the trial court that its privacy would be protected in this
manner. The decision not to sequester the jury had already been implemented before
the petition was filed.
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The Media filed the petition after the jury had been sworn and jeopardy
had attached. The respondents in this petition, of course, are all involved in a very
serious murder trial in which the State is seeking the death penalty. Neither the State
nor Mr. Smith has any disagreement with the trial court’s order. It has been difficult for
the respondents, the State, Mr. Smith, and the trial judge, to allocate time to respond on
an emergency basis to the Media’s petition, which appears to be an emergency in name
only.
There is a certain irony in the reality that the trial court’s order protecting
the privacy of the jurors in this case is brought on, not by the secrecy of Florida’s courts,
but by the extraordinary steps that Floridians have taken to open our courts to the press
and to the public. While many courts, including federal courts, permit only sketch artists
into the courtroom, Florida has long permitted liberal access to the media. Our supreme
court regularly conducts its oral arguments open to the world by live video on the
internet. We live in a state that strongly believes that the legitimacy of our court system
and the strength of our democracy is fostered when the public has broad access to
court proceedings. There is no question that the informal partnership that the courts
have built with the media over the last generation has given the public a far more
accurate understanding of court proceedings than can ever be achieved by sketch
artists.
But our joint success in making the courtroom accessible to the public has
not come without complications. Mr. Smith’s trial is being broadcast live, essentially to
the world, by cable television. The cable television industry has come to realize that the
public, including people far from Sarasota County, Florida, will view a trial not merely to
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assure that both sides receive a fair trial, but as a form of informative entertainment.
Since the trial of O.J. Simpson, we have known that judges, lawyers, and expert
witnesses can easily become household names and celebrities by virtue of a wellpublicized trial.
Mr. Smith’s trial, however, from his perspective, is not a matter of
informative entertainment. He has a constitutional right to a fair trial by a jury,
uninfluenced by matters or people outside the courtroom. Likewise, the jurors did not
come to the courthouse to be celebrity guests on a reality TV show. Because they are
adults with drivers licenses, they received an order of court compelling them to appear.
They are obeying the law and performing a valuable public service that many others
shirk.
In article 1, section 23, of the Florida Constitution, every natural person is
guaranteed the right “to be let alone and free from governmental intrusion into the
person’s private life.” Admittedly, we do not guarantee our citizens that they will be free
from media intrusion into their lives, but citizens who are compelled to serve as jurors
would seem to be entitled to some degree of protection when the government partners
with the media to transform a courtroom into a live television show, supplemented by a
large number of multimedia internet sites.
When a trial becomes such an extraordinary event, the trial court often
needs to protect the jury from outside influence. Without some protection during the
trial, jurors' names and faces would be readily recognizable by strangers who see them
at the gas station, grocery store, or a restaurant. The likelihood that one or more
persons would try to influence their decisions, innocently or otherwise, seems very high.
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Sequestration of a jury is always a possibility, but the truth is that
sequestration is little better than imposing an involuntary detention on a group of
citizens because of their willingness to perform their civic duty. It should be a last
resort. There may be times when sequestration is essential to protect a defendant’s
right to a fair trial or to assure the media its First Amendment rights, but sequestration is
a major intrusion into the liberty rights of the jurors and their families.
It is in this context that the trial court tried to balance the respective
constitutional rights of Mr. Smith, the Media, and the jurors. In seeking to achieve this
balance, the trial court presented its findings, as they relate to the level of media
coverage surrounding these events, to the media representatives prior to imposing the
challenged order. It is important to note that the objections raised by the Media did not
contest these findings.
II.
Analysis
The Media’s petition seeks certiorari review of the order. A district court
reviews a trial court order under its certiorari jurisdiction to determine whether the trial
court violated procedural due process or whether its order departed from the essential
requirements of the law. Fassy v. Crowley, 884 So. 2d 359 (Fla. 2d DCA 2004). There
is no dispute that the trial court gave the Media notice of its intention to impose some
restrictions and that it held a hearing on October 13, 2005, to determine the necessity
for imposing any limitations on media publication of jury information. The specific
media outlets represented at the hearing were The Sarasota Herald Tribune, Sarasota
News Now, WFLA Channel 8, The Tampa Tribune, The Bradenton Herald, and all
outlets owned by Times Publishing Company. These represented outlets attended the
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hearing and were given an opportunity to help fashion the least restrictive means to
protect Mr. Smith’s right to a fair trial. Thus, the Media is not arguing that it was
deprived of due process. It argues that the order departs from the essential
requirements of the law and violates the First Amendment.
The Media’s objections go to three provisions within the order:
1. The clerk of this court shall not release to any person the
names, addresses, or any other identifying information
concerning potential jurors in this case, except as provided
herein. The news media is prohibited from publishing the
names and addresses of prospective or seated jurors in this
case, except as provided herein.
....
4. The news media is prohibited at any time from taking
photographs or video of the faces of the prospective jurors or
seated jurors in this case.
5. The media is precluded from having any contact with
prospective or seated jurors during the proceedings.
As to the restrictions in paragraph 1, we would first note that although both sentences in
paragraph 1 end with “except as provided herein,” there do not appear to be any
exceptions actually provided within the order involving anyone other than the parties.
As the Media is not a party in the ongoing trial, it would appear it has not been afforded
any of the exceptions provided in the order. Furthermore, we note that where members
of the media challenged an order of the trial court in a highly publicized criminal trial, in
a case with similar facts and circumstances to those in the instant case, the media and
the parties were able to reach an independent conclusion that the withholding of jurors’
names and addresses by the court was permissible. Sunbeam Television Corp. v.
State, 723 So. 2d 275 (Fla. 3d DCA 1998).
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However, the second sentence of paragraph 1 is unquestionably a prior
restraint. As stated, this sentence not only restricts publication of jurors’ names and
addresses obtained through the court, but it also prevents the publication of this
information when obtained through any outside source. Furthermore, the order does
not expressly state whether these restrictions will end at the conclusion of the trial. At
best, these deficiencies make the restrictions in paragraph 1 overly broad.
Florida Rule of Judicial Administration 2.170 provides a presiding judge
with the authority to control electronic media and still photography coverage of trial court
proceedings. Rule 2.170(a) specifically provides:
Subject at all times to the authority of the presiding judge to: (i)
control the conduct of proceedings before the court; (ii) ensure
decorum and prevent distractions; and (iii) ensure the fair
administration of justice in the pending cause, electronic media
and still photography coverage of public judicial proceedings in
the appellate and trial courts of this state shall be allowed in
accordance with the following standards of conduct and
technology promulgated by the Supreme Court of Florida.
In order for a threat to the administration of justice to permit the imposition
of a prior restraint, that threat must be immediate. Miami Herald v. McIntosh, 340 So.
2d 904, (Fla. 1976). None of the parties or participants in this proceeding have
indicated that there exist any specific threats to either the jury venire as a whole or to
any individual member of the impaneled jury. However, the findings of the trial court
regarding the intense media coverage during these proceedings and the possibilities of
juror influence or harassment while the jurors are going about their daily lives is
certainly a valid concern related to the fair administration of justice. There are
unquestionably times when it might be necessary for a trial judge to impose media
restrictions on the publication of juror information, and nothing in this opinion should be
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read to fault the trial court in the execution of its valid intent to protect the jurors’ privacy
interests and the Sixth Amendment rights of the accused while maintaining a balancing
with the First Amendment interests of the press and public.
The test used to analyze whether restraints imposed on the media in
criminal cases constitute an unconstitutional prior restraint was established in Nebraska
Press Ass’n v. Stuart, 427 U.S. 539 (1976). The Supreme Court in Nebraska Press set
forth a three-prong consideration to determine: (1) the nature and extent of pretrial news
coverage; (2) whether alternative, less restrictive measures are available which would
protect the integrity of the judicial process without imposing a restraint on the media;
and (3) the effectiveness of the ordered restraint.
There is no doubt that the media coverage of this trial is extreme as it
relates to the first prong of Nebraska Press. Furthermore, the trial court cannot be
expected to rely on an indication from seven represented media outlets, the
unrepresented internet bloggers, and other less reputable communication sources that
they have no intent to publish the names and addresses of the jury to ensure the
integrity of trial. Nothing in the record before this court allows us to conclude that any
specific intimidation or threat to the jury has occurred, but the trial court clearly sets forth
a basis for why the publication of jurors’ names and addresses might create
individualized instances of intimidation. Taking steps to prevent court-provided access
to the very information that would enable specific identification of individual juror
members would appear to be within the trial court’s discretion. Neither the State, Mr.
Smith, the media, or any other entity has presented evidence or documentation to
suggest that this order has been ineffective in protecting the jury from public intimidation
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and ensuring that throughout the proceedings, thus far, ANY undue influence has
occurred. However, our concern with the restraint imposed in paragraph 1 is primarily
related to whether less restrictive alternatives to denying any and all publication of this
information, regardless of its source, were ever available or considered.
As it is broadly stated, we must quash that portion of paragraph 1 that
prohibits the publication of the otherwise obtained jury information. "Although a
government may deny access to information and punish its theft, government may not
prohibit or punish the publication of the information once it falls into the hands of the
press unless the need for secrecy is manifestly overwhelming." Fla. Publ'g. Co. v.
Brooke, 576 So. 2d 842 (Fla. 1st DCA 1991). Although we make no specific findings as
to whether circumstances at this point in the trial would or would not allow for the prior
restraint of this information, there currently exists nothing in the record before us to say
that all less restrictive means were adequately considered, and we cannot uphold this
portion of the order.
As to the restrictions in paragraph 4, we first note that the Media
characterizes this restriction as a prohibition against photographing the jurors, when the
restriction is actually limited to the jurors’ faces. We recognize, however, that it might
be difficult or impossible to photograph the jurors without the risk of photographing their
faces. Additionally, the order contains no time limit and is ambiguous as to whether it
applies to locations other than the courtroom or the courthouse. Effectively, paragraph
4 also operates as a prior restraint because the obvious intent of prohibiting the act of
photographing a juror’s face is to prohibit the subsequent publication of that image.
"No court has held that it is per se reversible error to allow the jurors' faces
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to be photographed in a controversial criminal trial. It is ultimately the fairness of the
proceedings which determines the appropriateness of limitations on media access."
Chavez v. State, 832 So. 2d 730, 760 (Fla. 2002). By waiting to file this petition, the
Media created a situation whereby the seated jurors have now been given an assurance
of privacy in reliance on the trial court’s order; making it difficult to examine the less
restrictive alternatives that might have been available to the court at the time the prior
restraint was imposed when many of those less restrictive means are no longer
available in light of the jurors’ foreseeable reliance on privacy assurances of the order.
The presiding judge may exclude electronic media coverage of
a particular participant only upon a finding that such coverage
will have a substantial effect upon the particular individual
which would be qualitatively different from the effect on
members of the public in general and such effect will be
qualitatively different from coverage by other types of media.
In re Post-Newsweek Stations, 370 So. 2d 764, 779 (Fla. 1979). Although WFTV v.
State, 704 So. 2d 188, 191 (Fla. 4th DCA 1997), holds that “[n]othing in Rule 2.170,
Post-Newsweek, or any other supreme court opinion suggests that jurors or prospective
jurors are to be treated differently from other types of trial participants—such as
attorneys, witnesses, or court personnel—for the purposes of publishing or broadcasting
their photographic images,” the media’s rights in recording the courtroom proceedings
are not absolute, and the trial court may properly impose certain restrictions on the
media's presence in a court proceeding.
The holding in Sunbeam identifies the possibility of circumstances whereby
a trial court could properly impose a restriction on the media coverage of jurors when
that court finds that, as set forth in Post-Newsweek, “such coverage will have a
substantial effect upon the particular individual which would be qualitatively different
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from the effect on members of the public in general and such effect will be qualitatively
different from coverage by other types of media.” 723 So. 2d at 278. In imposing the
restrictions in the order currently on review, the trial court argues that it specifically
made the requisite findings. This argument raises the question of whether, in light of
the holding in Sunbeam, the trial court’s order as to paragraph 4 is in fact a departure
from the essential requirements of law. Our review of this question would be somewhat
limited by the Media’s self-imposed necessity for this court’s hurried review. However,
we need not reach a conclusion to this far-reaching question to fully review the issue
currently before us because the restraints imposed by paragraph 4 are overbroad as
currently written.
As to the restrictions in paragraph 5, although it appears to be intended as
merely a counterpart to the restrictions placed on the jury through any standard jury
instructions, the prohibition against “any contact” “during the proceedings” seems very
broad and ambiguous and requires that the prohibition be stricken.
The overbreadth of paragraphs four and five is partially remedied by the
fact that a jury has already been seated. In paragraph four, the trial court prohibited the
news media from taking a photograph or video of the face of a prospective juror as well
as a selected or seated juror “at any time.” Similarly, in paragraph five, the news media
was prohibited from having “any contact with prospective or seated jurors during the
proceedings.” Paragraph four prohibits the taking of a photograph or video depiction of
a prospective juror “at any time.” As there is no legal basis to continue to maintain the
bar, because a jury panel has now been selected and seated, such a prohibition, even if
initially valid, must now expire. Paragraph five similarly bars “any contact” with
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prospective jurors by the media. The prohibition is not limited as to time or place and
“any contact” is, as used, overbroad. However, for the reasons previously expressed
related to prospective jurors in paragraph 4, this bar must also now expire.
The remaining prohibitions upon the Media set forth in paragraphs four
and five pertaining to the actual sitting jurors suffer from the identical overbroad
deficiencies as those identified for prospective jurors. For example, paragraph four
could be read to preclude publication even after the jurors’ terms of service have
expired. Paragraph five suffers from a similar defect. As another example, the term
“during these proceedings” could be interpreted to include all legal proceedings
involving the instant case, including appeals.
Accordingly, we hold that the prohibitions that remain set forth in
paragraphs four and five shall expire at 11:00 p.m. on November 18, 2005. We do not
strike them immediately so that the trial court may, if it so chooses, enter a new,
properly defined order with all necessary findings as set forth by current case law, prior
to the expiration of time identified herein. Due to the constraints of the continuing trial
process, it may be necessary for the trial court to seek assistance from another judge to
accomplish this task. For the above-stated reasons, we grant the Media’s petition in
part and quash that portion of the trial court’s order referred to in this opinion as the
second sentence of paragraph 1. Furthermore, should the trial court decline to enter a
new order addressing the deficiencies identified in paragraphs 4 and 5 within the time
constraints set forth in this opinion, those portions of the order are also quashed.
Petition granted and order quashed in part.
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CASANUEVA and VILLANTI, JJ., Concur.
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APPENDIX A
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