Broadcaster asks U.S. Supreme Court for stay of prior restraint

• A media coalition filed a friend-of-court brief supporting high court intervention in state appellate court’s refusal to quash do-not-publish order.

March 11, 2005 — A Florida broadcaster asked U.S. Supreme Court Justice Anthony M. Kennedy Thursday to stop a trial court order not to re-publish grand jury testimony by an accused killer. A coalition of media groups, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief supporting the emergency request.

First Coast News and the media outlets argue that an order by Florida Seventh Judicial Circuit Judge Robert Mathis constitutes a prior restraint on the press, violating the First Amendment. First Coast News sought the stay Thursday, less than one week after a Florida intermediate appellate court refused to hear the case.

First Coast — a Gannett duopoly of an ABC and NBC affiliate — argued that the transcript is a public record which it lawfully obtained from the prosecutor’s office, and pointed out that the State Attorney’s Office agreed with its position.

“In this action, the Florida Seventh Judicial Circuit Court has prevented Applicant from broadcasting a document in its possession, put Applicant under a direct threat of future prosecution, and actively campaigned the state’s Governor to conduct a criminal investigation of its past conduct,” First Coast argued in its emergency motion. “Standing alone, any one of these judicial acts would warrant immediate appellate intervention, which Applicants were utterly denied in the Florida courts. In their totality, the Orders certainly warrant the attention of this Court.”

The friend-of-the-court brief contended that a state’s interest in grand jury secrecy failed to justify Mathis’s orders.

“Compared to the certain harm to core First Amendment rights these orders impose, any remaining harm to Florida’s interest in preserving the secrecy of this particular document pales in comparison,” the brief says.

Kennedy, who serves as circuit justice for the geographic area that includes Florida, can grant First Coast’s request only if the issue is so substantial that four Supreme Court justices likely would agree to take the case.

First Coast also asked Kennedy that as an alternative to a stay, he should instruct the trial court to hold a hearing and weigh the state’s interests against what it called the order’s “heavy presumption of unconstitutionality,” or to send the case back to the Florida appeals court for a prompt decision on the merits that would allow further appellate review.

(Multimedia Holdings Corp d.b.a. First Coast News v. Florida, Media Counsel: Charles Tobin, Holland & Knight LLP, Washington, D.C.; Counsel for amici: Nathan Siegel, Levine Sullivan Koch & Schulz, Washington, D.C.) — KK

Related stories:

• State appeals court refuses to quash prior restraint (03/04/2005)
• Broadcaster seeks push for court ruling on prior restraint case (02/25/2005)
• Judge issues prior restraint against broadcast company (08/03/2004)

© 2005 The Reporters Committee for Freedom of the Press

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