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State appeals court refuses to quash prior restraint

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    News Media Update         FLORIDA         Prior Restraints         March 4, 2005    

State appeals court refuses to quash prior restraint

  • Broadcaster may ask U.S. Supreme Court to review decision upholding a do-not-publish order.

March 4, 2005 — An intermediate Florida appellate court denied without comment Wednesday a request by First Coast News to quash a prior restraint issued last summer in a high-profile murder case.

Lawyers for the broadcast outlet said the Fifth District Court of Appeal’s refusal to hear the case means the do-not-publish order stands for now. Florida’s rules of appellate procedure prohibit the state Supreme Court from considering the appeals court’s denial.

“It’s unfortunate that the prior restraint remains in effect without any explanation from the court about its ruling,” First Coast attorney George D. Gabel of Holland & Knight in Jacksonville said.

The broadcaster last month asked the Florida Supreme Court to order the appeals court to decide the case, which had been pending since August 2004. The one-sentence ruling by the appeals court likely moots the Feb. 21 petition to the state Supreme Court, lawyers said.

A trial judge had ordered First Coast News in July not to re-publish information contained in a transcript of accused wife-killer Justin Barber’s grand jury testimony, which the news outlet had obtained from the prosecutor’s office. Under Florida law, documents provided to defendants who testify in a criminal proceeding are part of the public record.

“The unusual part here is, even the state agreed with us that we were right,” Gabel pointed out.

The likely next move is to ask U.S. Supreme Court Justice Anthony Kennedy, who handles emergency requests from the geographic area that includes Florida, to stay enforcement of the prior restraint as a violation of the First Amendment. Attorneys for First Coast said they were reviewing their options with the client.

First Coast — a Gannett duopoly of an ABC and NBC affiliate — argued last month in its request to the state supreme court that it has a clear legal right to a speedy decision from the appeals court, citing case law and court rules calling for “immediate” appellate review of prior restraints, which are presumed unconstitutional.

With the murder trial expected to start soon, First Coast said it had no choice but to ask the Florida Supreme Court for a writ of mandamus ordering the appeals court to take action.

(Multimedia Holdings Corp d.b.a. First Coast News v. Florida, Media Counsel: Holland & Knight LLP, Jacksonville, Fla.)KK

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