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Quashing a prior restraint

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Palm Beach Post/Lannis Waters Palm Beach County Circuit Judge Jack S. Cox talks to attorneys during the December 2015 hearing.…

Palm Beach Post/Lannis Waters

Palm Beach County Circuit Judge Jack S. Cox talks to attorneys during the December 2015 hearing.

In late December of last year, the Florida Fourth District Court of Appeal, in the case Palm Beach Newspapers v. State, overturned a trial court’s order prohibiting The Palm Beach Post from publishing transcripts of a prisoner’s recorded telephone conversations.

Since January of 2013, the Fourth District has overturned four prior restraint orders, with three reversals coming within the last 18 months. The Fourth District hears appeals from trial courts located in Palm Beach, Broward, St. Lucie, Martin, Indian River and Okeechobee Counties.

Prior restraints are judicial orders that restrict speech before it occurs. They are considered presumptively unconstitutional under the First Amendment.

Clay Calvert, a media law professor in the College of Journalism and Communications at the University of Florida, described the Fourth District’s number of reversals as an “unusual trend,” which he said could be driven by trial courts’ fear of the permanency of Internet speech.

“I think the trial court judges fear that the Internet is somehow different [from other media]…[and] that they have a right to stop [Internet speech] because once it’s out there, it’s going to be permanent,” said Calvert, who also serves as director of the Marion B. Brechner First Amendment Project. “The good news is that the appellate courts in Florida are recognizing that the principles of prior restraint cut across all media, not just traditional ones.”

The prior restraint involving The Palm Beach Post arose after inmate Frederick Cobia filed motions seeking to, among other things, prevent the paper from publishing the content of his recorded jail telephone conversations.

According to the Fourth District’s opinion in Palm Beach Newspapers, inmate Jamal Smith accused Cobia of presenting himself as a jailhouse paralegal in order to gather information on other inmates. Smith alleged that Cobia received favorable treatment in exchange for providing the state with information and testimony. The Fourth District wrote that Cobia has “formally agreed to testify against seven inmates, including Smith, as part of a plea deal in his own murder case, but he claims to have information on a total of sixty inmates.”

On Oct. 15, 2015, before Cobia’s motions could be ruled on, The Palm Beach Post published an article on its Web site titled “Palm Beach County jailhouse lawyer doubles as jailhouse snitch.”

The article contained quotes from Cobia’s recorded conversations, in which he touted the amount of information he knew and the number of cases for which he could provide testimony. At another point, the article paraphrased the conversations to display the benefits Cobia has received.

The article also linked to full transcripts of the calls.

Citing “Mr. Cobia’s right to privacy” in the content of his phone conversations, Florida Circuit Judge Jack Cox granted Cobia’s motions on Nov. 30, 2015. Judge Cox ordered The Palm Beach Post “to remove the transcripts of the calls from its website” and prohibited the paper “and any other person currently in possession of the recorded calls…from publishing or disclosing them in any way to any third party.”

The Fourth District calls prior restraints unconstitutional

The Fourth District struck down Judge Cox’s order on Dec. 22, 2015. In a written opinion explaining its decision, released in late January of 2016, the Court wrote that prior restraints are presumed unconstitutional and, quoting from the U.S. Supreme Court’s 1976 decision in Nebraska Press Association v. Stuart, described them as “the most serious and the least tolerable infringement on First Amendment rights.”

The court wrote that a party seeking to uphold a prior restraint on the press must show a compelling interest that overcomes the press’s First Amendment rights.

Noting that “[t]he only interest asserted … is Cobia’s right to privacy regarding the content of his telephone conversations,” the court ruled this standard had not been met. “Where matters of public concern are involved,” the court wrote, “privacy interests give way to the First Amendment right to publish lawfully obtained, truthful information about such matters.”

The court further rejected Cobia’s privacy argument by writing that it is well-settled in Florida that “a jail inmate has no reasonable expectation of privacy in his telephone conversations.”

According to attorney L. Martin Reeder Jr., who represented The Palm Beach Post, the lack of an expectation of privacy derives from prisoners being “on notice that their calls are being recorded and can be used against them.”

Reeder added, “In any event, whether he [Judge Cox] thought Mr. Cobia had a right of privacy or not, the idea that that privacy right … would trump the First Amendment, when what the newspaper was doing was reporting on a matter of public concern,” is not accurate.

“The press was doing its job in bringing to light the benefits that Mr. Cobia allegedly was receiving for his testimony, and the phone calls were direct evidence of that because they were Mr. Cobia’s reported statements about the benefits he was receiving,” said Reeder, who is a partner at Reeder & Reeder P.A. in Jupiter, Fla.

In order to justify the prior restraint, the court wrote that Cobia also had to demonstrate that the prior restraint would effectively protect his privacy. To the court, this burden could not be met. By the time Judge Cox entered his order, “the full transcripts of Cobia’s conversations had been available on the Post’s website . . . for over a month,” the court wrote. The court also noted that the full transcripts had sat in an open court file for a month and excerpts for four months.

Judge cites reporter’s love of journalism

The majority opinion in Palm Beach Newspapers constituted a clear victory for the paper.

But to Reeder, the concurring opinion written by Chief Judge Cory J. Ciklin resonated the most.

Ciklin wrote the opinion “to briefly remind . . . readers . . . about the significance of the First Amendment to the United States Constitution.” To that end, he quoted numerous Supreme Court opinions stressing the importance of a free press.

Ciklin ended his opinion, however, by quoting Susan Spencer-Wendel, a court reporter for The Palm Beach Post who died of Lou Gehrig’s disease in 2014.

In describing Spencer-Wendel’s love of being a journalist, Ciklin quoted her as writing: “It was a privilege to go to work each day and grow democracy, to ferret out stories no one wanted told, to be trusted to inform and, yes, entertain our readers. When someone would ask me: ‘Who sent you?’ I loved to reply: ‘Well, ma’am, that would be Thomas Jefferson.’”

“It was an emotional thing for a lot of people at the paper to see that tribute to her,” Reeder said. “That was a really sweet part of what the Fourth District did.”

In the other recent cases where the Fourth District struck down the orders as unconstitutional prior restraints on speech, trial courts issued injunctions preventing one party from, among other things, using the other party’s name or likeness for commercial purposes, Vrasic v. Leibel, 106 So. 3d 485 (Fla. 4th DCA 2013); stopping a political organization from disseminating information about a judicial candidate via a Web site or in any other format, Concerned Citizens for Judicial Fairness v. Yacucci, 162 So. 3d 68 (Fla. 4th DCA 2014); and prohibiting billionaire businessman Alki David from posting information about another individual online, and ordering him to take down material already posted, David v. Textor, No. 4D14-4352, 2016 Fla. App. LEXIS 177 (Fla. 4th DCA Jan. 6, 2016).