Petition — Gardner v. Bradenton Herald, Inc.

Supreme Court brief1982

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Case No.

In The

SUPREME COURT OF THE UNIT STATES

JAMES A. GARDNER,

Petitioner,

THE BRADENTON HERALD, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

AND APPENDIX

JIM SMITH

ATTORNEY GENERAL

MICHAEL J. KOTLER

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

Counsel for Petitioner

QUESTION PRESENTED

WHETHER SECTION 934.091, FLORIDA

STATUTES (1977) IS UNCONSTITUTIONAL

BECAUSE IT VIOLATES THE FREEDOM OF

THE PRESS PROVISIONS OF THE UNITED

STATES CONSTITUTION.

TABLE OF CONTENTS

QUESTION PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

OPINION OF FLORIDA SUPREME COURT

ACTION FOR DECLARATORY DECREE

AMENDMENT TO COMPLAINT

AMENDED COMPLAINT

AMENDMENT TO AMENDED COMPLAINT

ANSWER

ORDER ON PENDING MOTIONS

AMENDMENT TO ANSWER

Al-22

A23-30

A31-32

A33-40

A41-42

A43-46

A47-51

A52-56

iii

FINAL JUDGMENT

MOTION FOR REHEARING

ORDER ON MOTION FOR REHEARING

PETITION FOR REHEARING

ORDER OF FLORIDA SUPREME COURT

MOTION TO STAY MANDATE

ORDER OF SUPREME COURT OF

OF THE UNITED STATES

PAGE

487-2

463-70

471-72

473-77

478-70

480-81

482

TABLE @ CITATIONS

PAGE

Branaburg v. Hayes, 406 U. 8. 665, 22, 26

92 S. Ct. 2646,33 L. Ed 2d 626 (1972)

Co# Broadcasting Corp. v. Cohn, 18,19,

420 U. 8. 469,95 8.Ct.1029,43 L.Ed 22,25

‘2d 328 (1975)

Garrett o. Estelle, 556 F.2d 26 22

1274 (Sth Cir. 1977)

Landmark Communications Inc. 9

v. Virginia, 435 US 829,98 8. ct. 1535

56 L. Ed 2d 1 (1978)

Napier v. Jefferson Standatd 25

Life Ineurance Company, 322 F.

2d 502 (4th Cir. 1953)

Nebraska Press Association v. 9

Stuart, 427 US 539,96 8.Ct. 2796,

49 L.Ed 2d 683 (1976)

Pell v. Procunter, 417 US 817, 94 22

3.Ct. 2800, 41 L.Ed 2d 495 (1974)

Sheppard v. Maxwell, 384 US 333,340 11

86 S.Ct. 1507,16 L.Ed2d 600 (1966)

Shevin v. Sunbeam Television Corp. 15

351 So.2d 723 (Fla. 1977

Smith v. Datly Mail Publishing 9,10,

Company, 443 US 97, 99 8. ct. 2667, ee

61 L.Ed 2d 399 (1979

State u. Barnett,354 80. 2d 422 14

(Fla. 2d DCA 1978)

PAGE

State v. Evjue, 253 Wis. 146, 23

33 N. . 2d 305 (1948)

United States v. Fuller,202 F. 28

Supp. 356, U. 8. D. C. (Cal. 1967)

unt ted States v. Gurney,558 F. 2d 21,22

1202,1208 (Sth Cir. 1977)

United States v. Woode, 544 F. 2d 23

242 (6th Cir. 1976 (reh.den 1977)

Zumel v. Ruek,381 US 1,17, 85 8. Ct 22

1271, 1281, 14 L.Ed 2d 179 (1945)

UNITE D STATES CONSTIMW TION

AMEN IMENT I 2

PLOKITA STAW TES

geot ton 934.01 13

Section 9340205) 20

Section 934.09(7) 13

Section 934.091 3,8

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

OPINION BELOW

The opinion of the Supreme Court

of the State of Florida, not yet

reported, appears in the appendix hereto

as "Al-22."

JURISDICTION

The Supreme Court of Florida

entered its judgment on March 1,

1982. It denied a timely petition

for rehearing on April 28, 1982 and

this petition for certiorari was filed

within ninety days of that date.

QUESTION PRESENTED

Whether Section 934.091, Florida

Statutes (1977) is unconstitutional

because it violates the freedom of

the press provisions of the United

States Constitution.

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United

Staces Constitution, which provides:

Congress shall make no law

respecting an establishment

of religion, or prohibiting

the free exercise thereof; or

abridging the freedom of speech,

or of the press, or the right

of the people peaceably to

assemble, and to petition the

Government for a redress of

grievances.

STATEMENT OF THE CASE

Respondent, plaintiff below,

Bradenton Herald, Inc., filed an action

for declaratory decree against Petitioner,

James A. Gardner, in his official

capacity as State Attorney for the

Twelfth Judicial Circuit of Florida

on August 17, 1979 (A23-30)

Following a Motion to Dismiss,

Respondent filed an Amendment to Complaint

. (431-32) and an Amendment to Amended

Complaint (AI-). pet it ioner filed his

Answer on September 27, 1979 (443-4).

As grounds for relief, the Amended

Complaint alleged that Section 934.091,

Florida Statutes (1977), was unconstitu-

tional as a prior restraint on Freedom of

the Press and for placing criminal sanctions

upon the publication of the names of

persons who have been the subject of a

legal wiretap. The Respondent alleged that

they had the name and identity of a person

or persons who had neither been indicted

nor informed against by the Petitioner

or other appropriate prosecuting authority,

which person or persons may or may not now

have been served with an inventory or

notification of interception of wire or

oral communications pursuant to the

provisions of Section 934.09(7), Florida

Statutes (1977), whose wire or oral

communications have, in fact, been

intercepted. The Respondent further

alleged that it was its purpose and intent

to publish the names of the said

individuals as prohibited by the provisions

of the subject statute (417).

In Petitioner's Answer, the Petitioner

alleged that the information sought to be

published was not lawfully obtained

information and therefore not afforded

First Amendment protection (421). This

affirmative defense was striken by

the Court and the Court specifically held

that whether the names were lawfully or

unlawfully obtained was irrelevant.

The Petitioner also filed a Motion

to Compel Oral Discovery in order to

take the deposition of Robert Ratner, a

reporter for the Bradenton Herald, Inc.

The Purpose of Oral Discovery was to

determine the name of the person in the

possession of the newspaper who was the

alleged subject of the wiretap and,

should the name prove to be a wiretap

subject, the source of the information to

determine whether the information was law-

fully obtained. The Court granted the

Petitioner's motion insofar as it allowed

the Petitioner to determine the name of

the subject, but refused to require the

reporter to divulge the manner in which

it was obtained (A47-51).

The name was verified as being that

of John Doe, intervenor in this cause.

The deposition of Robert Ratner was sealed

by court order in order to prevent the

name of John Doe from becoming a part

of the public record.

The case proceeded to final hearing

on November 16, 1979. The Petitioner and

the Intervenor alleged and argued two

compelling governmental interests in

the subject statute; the necessity for

secrecy in an ongoing criminal

investigation concerning wiretaps and

the right to privacy of the person who

is the subject of the wiretap (A52-56).

On February 12, 1980, the Court

entered a final judgment declaring Section

934.091, Florida Statutes (1977)

unconstitutional as an inf: ingement

on the First Amendment freedom of the

press, and as being vague (A57-62).

A timely motion for rehearing was

filed by the Petitioner (A63-79) and

denied by the Court (A71-72).

Timely notice of appeal was filed

and the Supreme Court of Florida's

jurisdiction was invoked pursuant to

Fla. R.App. P. 9.030(a)(1)(A). The

Supreme Court of Florida adopted the

reasoning of the trial court and found

Section 934.091, Florida Statutes to

be unconstitutional (Al-22). A timely

petition for rehearing was filed by the

Petitioner (A73-77) and denied by the

Court (A78-79).

Petitioner filed a timely Motion to

Stay Mandate in the Supreme Court of

Florida, which was granted up to and

including May 28, 1982, in order to

allow Petitioner to seek review of this

Court (A 80-81).

Petitioner next filed Motion to

Extend Stay of Mandate in this Court,

which was denied on May 25, 1982 (A&2).

This Petition for Writ of Certiorari :

follows.

REASONS FOR GRANTING THE WRIT

SECTION 934.091, FLORIDA

STATUTES (1977) DOES NOT

VIOLATE THE FREEDOM OF THE

PRESS PROVISIONS OF THE

UNITED STATES CONSTITUTION.

In declaring Section 934.091, Florida

Statutes (1977) unconstitutional, the

Florida Supreme Court determined that

statute resulted in a prior restraint on

the press.

The challenged Statute reads as

follows:

"934.091 Unlawful to

publish names of parties to

intercepted communications;

penalty,

(1) No person shall

print, publish, or broadcast,

in any newspaper, magazine,

periodical, or other publica-

tion, or from any television

or radio broadcasting station,

the name or identity of any

person served with, or to be

served with, an inventory or

notification of interception

of wire or oral communications

pursuant to a 934.09(7)(e) until

said person has been indicted

or informed against by the

appropriate prosecuting authority.

(2) Whoever is convicted of

the violation of the provisions

of this section is guilty of a

felony of the third degree, punish-'

able as provided in s. 775.082,

by a fine not to exceed $10,000

or as provided in s. 775.084.

This statute does not constitute

a "prior restraint" on the freedom of

the press since there is no prior

injunction or restraining order against

publication. Compare Nebraska Press

Association v. Stuart, 427 UA 539, 96

S. Ct. 2791, 49 L.Ed 2d 683 (1976) with

Landmark Communications, Inc. v. Virginia,

435 US 829, 98 S.Ct. 1535, 50 L.Ed 2d

1 (1978) and Smith v. Daily Mail

Publishing Co., 443 US 97, 99 8. ct.

2667, 61 L.Ed 2d 399 (1979).

This distinction is really of

no concern, however, since the statute

does impose criminal penalties. As

the United States Supreme Court recently

stated in Smith v. Daily Mail Publish-

ing Company, supra:

"(3) Whether we view the

statute as a prior restraint or

as a penal sanction for publish-

ing lawfully obtained,truthful

information is not dispositive

because even the latter action

requires the highest form of state

interest to sustain its validity.

Prior restraints have been

accorded the most exacting scrutiny

in previous cases. See Nebraska

Press Association v. Stuart,

supra, at 419, 49 L.Ed 2d 683,

96 S. Ct. 1791; Organization for

Better Austin v. Keefe, supra at

419, 29 L.Ed 2d 1, 91 S. ct. 1576;

Near v. Minnesota ex rel Olsen,

supra at 716, 95 L.Ed 2d 1357,51

S.Ct. 625: See also Southeastern

Promotions, Ltd. v. Conrad, 420

US 546, 43 L.Ed 2d 448, 95 S.Ct.

1239 (1975). However, even when

a state attempts to punish publi-

cation after the event it must

nevertheless demonstrate that its

punitive action was necessary to

further the state interests

asserted. Landmark Communications,

Inc. v. Virginia, supra at 843,

56 L.Ed 2d 1, 96 S. Ct. 1535."

(61 L.Ed 2d 404)

The question therefore is whether

the statute furthers the state interests

asserted. In order to sustain validity,

the state interest must be of the highest

form.

Petitioner is not unmindful of

the role of the press and the ends to

be achieved through the freedom afforded

it:

"A responsible press has

always been regarded as the

handmaiden of effective judicial

administration... its function

in this regard is documented by

an impressive record of service

over several centuries. The

press does not simply publish

information about trials but

guards against the miscarriage

of justice by subjecting the

police, prosecutors, and judicial

processes to extensive public

scrutiny and criticism."

She dv. Maxwell ,384 US 333,

. Ct. 16 L.Ed 2d 600

(1966).

However, the state interests in

this statute are of the highest form

and, when balanced against the very

limited intrusion into the First Amendment,

the results indicate that the statute

passes constitutional muster.

There are two very important

interests to be protected by Section

934.091. The first is the protection

of the integrity of an ongoing criminal

investigation. The second is the right

to privacy of the individual who is the

subject of the wiretap.

Chapter 934 presents a comprehen-

sive plan for the use of wire and oral

communications. It provides protection

to the individual from unreasonable

seizure of such communications as well

as the right of state police agencies

to intercept and use such communications

in criminal investigations and as evidence

when based upon probable cause. A fine

balance has been struck between the

rights of the individual and the

interests of law enforcement:

"934.01 Legislative findings --

On the basis of its own investigations

and of published studies, the Legisla-

ture makes the following findings:

(3) Organized criminals make

extensive use of wire and oral

communications in their criminal

activities. The interception of

such communications to obtain evidence

of the commission of crimes or to

prevent their commission is an in-

dispensable aid to law enforcement

and the administration of justice.

(4) To safeguard the privacy

of innocent persons, the intercep-

tion of wire or oral communications

when none of the parties to the

communication has consented to the

interception should be allowed

only when authorized by a court of

competent jurisdiction and should

remain under the control and

supervision of the authorizing

court. Interception of wire and

oral communications should further

be limited to certain major types

of offenses and specific categories

of crime with assurance that the

interception is justified and that

the information obtained thereby

will not be misused."

By statute, a wiretap order cannot

be issued unless it is based upon probable

cause, Section 934.09(3),Florida Statutes

(1979). However, before such an order

can be issued it must be shown that the

law enforcement agency has reasonably

exhausted other investigative techniques

or that other available tethniques are

unlikely to succeed or are too dangerous.

See State v. Barnett, 354 80. 2d 422 (Fla.

2d DCA 1978). As such, a wiretap is

virtually a last resort device, the

success of which depends exclusively

upon the fact that the parties being

intercepted have absolutely no knowledge

of the wiretap.

There can be no doubt that the

protection of an ongoing criminal

investigation is a compelling governmental

interest of the highest order, which is

rendered useless when a subject reads

in the newspaper or sees a report on

television that his phone is presently

being wiretapped in connection with a

criminal investigation. The injury does

not stop there. Whenever a wiretap

order is issued, there has to be probable

cause to believe that communications

concerning an offense will be intercepted.

This presupposes that more than one

individual is involved in the crime.

Therefore, if but one person's name is

published, an entire investigation

into the criminal activities of numerous

individuals is destroyed. (See Justice

Atkins dissenting opinion). This is

particularly true in investigations con-

cerning narcotic or other dangerous

drugs, gambling, dealing in stolen

property, Florida Anti-Fencing Act

violations and criminal conspiracies

to commit such acts. Such a disclosure

can also cost the life of an individual

as in kidnapping cases.

The Florida Supreme Court opinion

also overlooks the statutory right to

privacy which is the gravamen of Chapter

934. See Section 934.01(4), Florida

Statutes (1979). This right to privacy

has withstood a First Amendment attack

before the Court in the recent past.

Shevin v. Sunbeam Television Corporation,

351 80. 2d 723 (¥la.1977).

Against these interests must be

balanced the limited intrusion into the

First Amendment which this statute entails.

Section 934.091 only abridges publication

of the name or identity of the person

served with or to be served with an

inventory of notification of interception

until that person has been indicted or

informed against. In other words,

only during the crucial period of time

during a criminal investigation that the

subject does not know he has been wire

tapped is the press in any way abridged.

At the point where the secrecy of the

investigation is no longer imperative, the

statute allows publication.

A comparison of the statute in

question with the statute and analysis con-

tained in Smith v. Daily Mail, supra,

demonstrates the soundness of this law.

In Smith, two newspapers of general cir-

culation in West Virginia published the

name of a fourteen year old boy who was

arrested in connection with the shooting

death of a schoolmate. A West Virginia

statute declared such publication a crime

punishable as a misdemeanor. An indietment

was lodged against the two newspapers who

then sought and received a writ of

prohibition from the West Virginia

Supreme Court of Appeals. The prosecutor

and the county court judge petitioned to

this Court. In affirming the Vest

Virginia Supreme Court, this Court did not

reach the issue of whether the statute was

a “prior restraint." This Court held

that there was no doubt about the fact the

juvenile's name was lawfully obtained.

The reporter had received it from wit-

nesses and police officers at the scene

of the incident. This Court further

pointed out that the statute applied

only to newspapers and not to the media

as a whole. In fact, three radio stations

had broadcast the name of the juvenile

before the Daily Mail decided to publish

it.2/ Quoting Cox Broadcasting Corp. v.

Cohn ,420 US 469, 95 8. ct. 1029, 43 L.Ed

2d 328 (19750, the Court stated:

"By placing the information in

the public domain on official court

records, the STate must be presumed

to have concluded that the public

interest was thereby being served.

States may not impose sanctions

on the publication of truthful infor-

mation contained in official records

open to public inspection. Id. at

495,43 L.Ed 2d 328,95 S.Ct. 1029."

(61 L.Ed 2d at 405)

The sole interest advanced by the

State to justify the statute was to protect

the anonymity of the juvenile offender. The

Court held that this state interest was not

sufficient to justify the application of

criminal penalties to respondents and that

the statute's approach did not satisfy

constitutional requirements since it did

not restrict the electronic media as well.

Compared with the law in Smith, the

statute sub judice suffers no such infirn-

ities. The information sought to be

published by the Bradenton Herald is not

now and never has been a part of the public

record of any county of this state. The

statute in question applies uniformly

to the electronic media as well as the press.

Also, the information sought to be published

in the case sub judice was not lawfully

obtained! Section 934.091 (1) states that

"No pereon shall print, publish or broad-

cast, or cause to be printed, published

or broadcasted.

Section 934.02(5),Florida Statutes

(1979) defines person for the purposes

of this chapter as "any employee or agent

of the etate or political subdivision

thereof and any individual, partnership,

association, joint stock company, trust

or corporation: Therefore, the name of the

subject of a wiretap obtained from an agent

of a political subdivision of this state

who is inside a criminal investigation is

not lawfully obtained information since

the agent is committing a crime by

disclosing the name to the reporter.

Taken together with the two com-

pelling state interests involved, the

limited infringement caused by this

statute upon Respondent's right to

print the name of a wiretap subject

is neither unreasonable nor unconsti-

tutional. The destructive impact that

such a disclosure could have on an on-

going criminal investigation is

enormous.

The United States Fifth Circuit

Court of Appeals has ruled that news-

gathering warrants some degree of First

Amendment protection, and while the

extent of such protection has remained

somewhat uncertain, it is clear that it

is not without bounds. United States

v. Gurney, 558 F. zd 1302,1308 (5th Cir.

1977). The right to speak and publish

does not carry with it the unrestrained

right to gather information, Zumel v.

Rusk, 381 US 1,17, 85 S. ct. 1271,1281, 14

L.Ed 2d 179 (1945). The First Amendment

right to gather news has been def ined in

terms of information to the public gener-

ally, Branzburg v. Hayes, 408 U.S. 665,

92 8. Ct. 2646, 33 L.Ed 2d 626 (1972).