# Petition — Gardner v. Bradenton Herald, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 865

## Text

Case No.

In The

SUPREME COURT OF THE UNIT STATES

JAMES A. GARDNER,
Petitioner,
v.
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.

ii

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

tv

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

10

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

11

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

12

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:

13

"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

14

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

15

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.

16

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

17

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

18

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

19

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

20

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.

21

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).

See also: Pell v. Procunier, 417 US

817, 94 S. Ct. 2800, 41 L.Ed 2d 495 (1974)
and Garrett v. Estelle, 558 F.2d 26, 1274

(Sth Cir. 1977). The press cannot be
denied access to information already

within the public domain, Cox Broad-

casting Corp. v. Cohn, supra. Yet,

the United States Constitution does not
require the government to accord the press
special access to information not shared
by members of the public generally.

United States v. Gurney, supra. Denials
of access to proceedings such as Grand

23

Jury hearings and judicial conferences
are based upon fundamental governmental
interests and protection of other rights
which override the concerns of the public.
Id. Thus, a statute making it a crime

to publish specific information as in
Section 934.091 represents a valid

public interest as determined by the
Legislature. See also: United States v.
Woods, 544 F.2d 242 (6th Cir. 1976,

rehearing denied 1977).

Analogous to the case at bar is State v.
Evjue, 253 Wis. 146, 33 N.W. 2d 305 (1948),
which upheld the validity of a state
statute penalizing newspaper, magazine,
periodical or circular publications of
the identity of a female subjected to a
rape or similar criminal assault. In so
holding, the Court stated that the slight
restriction of freedom of the press pro-
scribed by the statute is outweighed by

the interests in avoiding embarrass-

ment and offensive publicity of the victim.
The Evjue case is still good law, and has
been reaffirmed according to 86 A.L.R.

3d 80 which cited Cox Broadcasting Corp.

v. Cohn, supra and Napier v. Jefferson
Life Insurance Co., 322 F.2d 502 (4th

Cir. 1963) which upheld a similar
South Carolina statute. |

This concept that the First
Amendment is not an unlimited, unre-
stricted, absolute right was reiterated
in United States v. Fuller, 202 F.Supp.
356, U.S.D.C. (Cal. 1967). That case
dealt with a California statute proscrib-
ing unauthorized interception of
communications by wire or radio, which
the Court explained had been upheld on
a number of occasions. A newspaper man
obtained information »y listening to a
police broadcast radio, contending it
was a public information which he could

gather and publish. In dismissing

that argument, the Court stated that
Congress has the power to forbid wire-
tapping, interception, and divulgement
of protected radio messages. Id. p.
358. The Fuller court again upheld the
California statute as being an exception
to freedom of the press, stating that it
is so clear and apparent that any change
in the law is for the legislature, and
not the courts. Id. p. 359.

Unless the First Amendment is an
absolute, this statute is constitutional.
It is uniform in application, imposes
but a limited infringement, and serves
compelling state interests.

The prevailing view is that the
press is not free to publish with impunity
everything and anything it desires to

publish, Branzburg v. Hayes, supra.

27

The judgment of the Supreme Court
of Florida declaring Section 934.081,
Florida Statutes (1977) unconstitutional
should be reversed.

CONCLUSION
For these reasons, Petitioner
respectfully urges this Court to grant
certiorari and reverse the holding of
the Supreme Court of Florida.

Respectfully submitted,

JIM SMITH
ATTORNEY GENERAL

Assistant Attorney General
1313 Tampa Street, Suite 804
Park Trammell Building
Tampa, Florida 33602

(813) 272-2670
Counsel for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true
copy of the foregoing has been
furnished by U.S. Mail to Larry K.
Coleman, Esquire, Knowles, Blalock,
Coleman, Landers & Walters, P. A.,
802 llth Street, West, Bradenton,
Florida on this the , day of

July, 1982.

8 6 fete,

Of Counsel for Petitioner

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0586%3A1. Public record. Not legal advice.