Reporter's privilege held to protect non-confidential information

FLORIDA–In late October, the state Supreme Court in Tallahassee unanimously overruled a string of lower court cases and held that the common-law qualified reporter’s privilege in Florida protects both non- confidential and confidential information in both criminal and civil cases.

The court’s rulings came in three cases that predated the enactment of Florida’s shield law, which was signed into law in May 1998.

The court held that lower courts should allow a subpoena against a journalists only after the requesting party shows that the reporter is in possession of relevant information, the same information is not available from alternative sources, and there is a compelling need for the information.

When evaluating the compelling need for disclosure, it is imperative that a criminal defendant’s Sixth Amendment and state constitutional rights to a fair trial be considered, the court stated.

The court ruled on two cases that involved demands from criminal prosecutors and defendants for reporters from the St. Petersburg Times and the Miami Herald to disclose non-confidential information obtained in the newsgathering process.

One case involved a criminal defendant convicted of aggravated assault whose subpoena of a St. Petersburg Times reporter was quashed by a trial court. The high court found that the reporter could assert the qualified privilege. The judge’s failure to conduct a balancing test was harmless error in the case, the high court held, because the information that would have been provided by the reporter would not have affected the outcome of the trial.

Miami Herald reporter David Kidwell was also asked to disclose non- confidential information by prosecutors after he interviewed a man being tried on murder charges in November 1994. Kidwell’s refusal to answer prosecutors’ questions resulted in a $500 fine and a 70-day jail sentence, 14 days of which he served before a federal district judge in Miami released him until his appeal could be heard in state court.

The Supreme Court sent the Kidwell case back to the lower court for a determination of whether the defendant made a direct confession to Kidwell, because such a confession would be “direct evidence of a crime that would not fall within the information protected under the qualified privilege,” the court ruled.

In both cases, lower courts refused to apply Florida’s common-law qualified privilege to the non-confidential information the reporters were trying to protect. Florida’s 1998 shield law was not in place when these controversies arose and did not apply to either case.

When considering the third reporter’s privilege case before it on the same day, a case that involved a Florida Times-Union reporter who had been called to testify in a civil case, the court unanimously held that the qualified privilege applies to civil cases and that the same balancing test should be applied in criminal and civil cases in order to determine whether compelled disclosure is appropriate. (Florida v. Davis, Amici Counsel: Talbot D’Alemberte, Tallahassee; Kidwell v. Florida, Media Counsel: Sandy Bohrer, Miami; Morris Communications Corp. v. Frangie, Media Counsel: George Gabel, Jr., Jacksonville)