Ban on identifying sex crime victims is unconstitutional

FLORIDA — A Florida statute making it a criminal misdemeanor to identify a sexual offense victim’s name “in any instrument of mass communication” violates the United States and Florida constitutions on its face, according to a 6-0 decision in early December by the Supreme Court of Florida.

Florida charged Globe Communications Corp. with violating the statute for publishing in late April 1991 the name of Patricia Bowman, the woman who accused William Kennedy Smith of rape. The Globe obtained the information lawfully and four British newspapers had already published the name.

Globe asked a Palm Beach County trial court to dismiss the charges, arguing that under the free speech and press provisions of the United States and Florida constitutions, the statute was unconstitutional on its face and as applied. The trial court agreed with both arguments in October 1992 and dismissed the charges, relying on the U.S. Supreme Court’s 1989 decision in Florida Star v. B.J.F.

The U.S. Supreme Court held in Florida Star that Florida could not automatically impose civil liability upon the Star under a prior version of the statute for publishing truthful information it had obtained lawfully. The Court reasoned that the automatic sanction did not sufficiently further the stated interest of protecting sexual offense victims and encouraging them to come forward. Absent such narrow tailoring, the statute violated the First Amendment.

In the Globe case, the state conceded that the statute was unconstitutional as applied, but appealed the trial court’s ruling that the statute was also unconstitutional on its face. An appellate court upheld the dismissal in August 1993, and the state appealed again.

The Supreme Court of Florida affirmed the lower court’s decision. Relying on Florida Star, the state supreme court held that Florida could not automatically impose liability upon the media for publishing lawfully obtained, truthful information about matters of public concern. Instead, the state must provide for a case-by-case determination of whether the circumstances justified publication.

(Florida v. Globe Communications Corp.; Media Counsel: Richard J. Ovelmen, Miami)

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.