State v. Globe Communications Corp.State v. Globe Communications Corp.
John F. Tierney, III and Carey Haughwout of Tierney & Haughwout, West Palm Beach, for appellee.
Richard J. Ovelmen of Baker & McKenzie, Miami, and George K. Rahdert of Rahdert & Anderson, St. Petersburg, amici curiae for The Times Publishing Co., The Associated Press, Society of Professional Journalists, The Miami Herald Pub. Co., National Broadcasting Co., Inc., The New York Times Co., The American Civ. Liberties Union, The Reporters Committee for Freedom of the Press, The Florida First Amendment Foundation, and Gannett Co., Inc.
KOGAN, Justice.
The State appeals State v. Globe Communications Corp., 622 So.2d 1066 (Fla. 4th DCA 1993), in which the Fourth District Court of Appeal declared
Globe Communications Corporation (Globe) was charged with two counts of printing, publishing, or causing to be printed or published in an instrument of mass communication the name, photograph, or other identifying facts or information of the victim of a sexual offense, in violation of
No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter. An offense under this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The charges resulted from the Globe‘s identification of the Palm Beach woman William Kennedy Smith allegedly raped in 1991. In its April 23, 1991 issue and again in its April 30, 1991 issue the Globe published the alleged victim‘s name and other identifying information, contrary to
The Globe filed a motion to dismiss the information arguing that
On appeal to the district court, the State conceded that the record supported the ruling that
Both the trial and district courts relied extensively on the United States Supreme Court‘s decision in Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989). In Florida Star, a rape victim brought a civil suit against The Florida Star, a weekly newspaper, for publishing her name in violation of
Under the Daily Mail standard, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Daily Mail, 443 U.S. at 103, 99 S.Ct. at 2671. Applying this standard, The Florida Star could not be held civilly liable under
We agree with Judge Anstead, writing for the majority below, that the “essence” of the holding in Florida Star is that a state may not automatically impose liability for the publication of lawfully obtained truthful information about a matter of public concern. Before liability can be imposed, the state must provide for a “discrete determination of whether the prohibition on publication is justified under the particular circumstances presented.” 622 So.2d at 1077. As explained by the Supreme Court, a major problem with imposition of liability for publication under Florida‘s statute
is the broad sweep of the negligence per se standard applied under the civil cause of action implied from § 794.03... . [C]ivil actions based on § 794.03 require no case-by-case findings that the disclosure of a fact about a person‘s private life was one that a reasonable person would find highly offensive. On the contrary, under the per se theory of negligence adopted by the courts below, liability follows automatically from publication. This is so regardless of whether the identity of the victim is already known throughout the community; whether the victim has voluntarily called public attention to the offense; or whether the identity of the victim has otherwise become a reasonable subject of public concern — because, perhaps, questions have arisen whether the victim fabricated an assault by a particular person. Nor is there a scienter requirement of any kind under § 794.03, engendering the perverse result that truthful publications challenged pursuant to this cause of action are less protected by the First Amendment than even the least protected defamatory falsehoods: those involving purely private figures, where liability is evaluated under a standard, usually applied by a jury, of ordinary negligence. We have previously noted the impermissibility of categorical
prohibitions upon media access where important First Amendment interests are at stake. More individualized adjudication is no less indispensable where the State, seeking to safeguard the anonymity of crime victims, sets its face against publication of their names.
491 U.S. at 539, 109 S.Ct. at 2612 (citations omitted).
Another deficiency recognized by the Supreme Court is the “facial underinclusiveness” of
[s]ection 794.03 prohibits the publication of identifying information only if this information appears in an “instrument of mass communication,” a term the statute does not define. Section 794.03 does not prohibit the spread by other means of the identities of victims of sexual offenses. An individual who maliciously spreads word of the identity of a rape victim is thus not covered, despite the fact that the communication of such information to persons who live near, or work with, the victim may have consequences as devastating as the exposure of her name to large numbers of strangers.
When a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant. Where important First Amendment interests are at stake, the mass scope of disclosure is not an acceptable surrogate for injury. A ban on disclosures effected by “instrument[s] of mass communication” simply cannot be defended on the ground that partial prohibitions may effect partial relief. Without more careful and inclusive precautions against alternative forms of dissemination, we cannot conclude that Florida‘s selective ban on publication by the mass media satisfactorily accomplishes its stated purpose.
491 U.S. at 540-41, 109 S.Ct. at 2612-13 (citations omitted).
We agree with the trial court and district court below that the “broad sweep” and “underinclusiveness” of
The State is correct that whenever possible we will construe a statute so as not to conflict with the constitution. Firestone v. News-Press Publishing Co., 538 So.2d 457, 459 (Fla. 1989). We will resolve all doubts as to the validity of the statute in favor of its constitutionality, provided we can give the statute a fair construction that is consistent with the Florida and federal constitutions and with legislative intent. State v. Stalder, 630 So.2d 1072, 1076 (Fla. 1994); State v. Elder, 382 So.2d 687, 690 (Fla. 1980). Unlike Florida‘s Hate Crime Statute,2 which we were able to uphold against First Amendment challenge in State v. Stalder by giving the statute a narrowing construction, extensive rewriting and broadening of the statute‘s scope would be required to rehabilitate
Accordingly, we affirm the district court‘s decision holding
It is so ordered.
GRIMES, C.J., and SHAW, HARDING and WELLS, JJ., concur.
OVERTON, J., concurs in result only.