Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention
AMM v. News Group Newspapers
Closed Expands Expression
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On June 21, 1989, the Supreme Court of the United States held that imposing damages on a newspaper for publishing an article detailing the facts of a sexual assault case, including the victim’s full name, violated the First Amendment. The case arose after the Appellee, B.J.F., reported a robbery and sexual assault to the Duval County, Florida, Sheriff’s Department. When the department placed a copy of B.J.F’s police report, it was obtained and later published by the Appellant, ‘The Florida Star’, a local newspaper. Subsequently, the Appellee filed a suit claiming that the newspaper had violated the Florida statute prohibiting the publication of the name of sexual assault victims. The Circuit Court of Duval County found that The Florida Star had violated the statute, and the jury awarded 100,000 dollars in damages to the Appellee. The Court of Appeals confirmed the decision, and the Florida Supreme Court declined to review the case; as a result, the Florida Star appealed to the Supreme Court. The Supreme Court observed that, since the article contained accurate facts and the newspaper had lawfully obtained the victim’s name from the government, imposing liability on the newspaper did not serve a “need to further a state interest of the highest order.” The Court considered that although the interests in protecting the privacy and safety of sexual assault victims and in encouraging them to report offenses without fear of exposure were highly significant, imposing liability on the newspaper was too precipitous a means of advancing those interests.
On October 20, 1983, the Appellee, B.J.F., reported to the Duval County, Florida, Sheriff’s Department (Department) that she had been robbed and sexually assaulted by an unknown assailant. The Department prepared a report on the incident, identifying the appellee by her full name. The Department then placed the report in its pressroom.
The Appellant, The Florida Star, a weekly newspaper, published a “Police Reports” section containing brief articles describing local criminal incidents under police investigation. At the time of the issue, it had an average circulation of approximately 18,000 copies.A Florida Star reporter-trainee was sent to the pressroom and copied the police report verbatim, including B.J.F.’s full name, on a blank duplicate of the Department’s forms. Consequently, a Florida Star reporter prepared a one-paragraph article about the crime based entirely on the trainee’s copy of the police report.
On October 29, 1983, the article was published in the “Robberies” subsection of the “Police Reports” and included B. J. F.’s full name. By printing the appellee’s full name, The Florida Star violated its internal policy of not publishing the names of sexual offense victims.
On September 26, 1984, B.J.F. filed a suit in the Circuit Court of Duval County against the Department and The Florida Star. She alleged that the parties negligently violated Florida Statute Section 794.03. While the Department settled with B.J.F. for $2,500 before trial, The Florida Star moved to dismiss. The newspaper claimed that imposing civil sanctions under §794.03 violated its first amendment rights. However, the trial judge denied the motion [p. 528].
At the ensuing trial, B. J. F. testified that she had suffered emotional distress from the publication of her name. She remarked that she heard about the article from fellow workers; that her mother had received several threatening phone calls from a man who stated that he would rape B. J. F. again; and that these events had forced her to change her phone number and residence, to seek police protection, and to obtain mental health counselling. The Florida Star opposed and contended that they had learned B. J. F.’s name from the incident report released by the Department and that the violation of its internal rule against publishing the names of sexual offense victims was unintentional [p. 528].
The Florida Star moved for a directed verdict on two occasions. However, the trial judge denied the motions. The Trial Court observed that Section 794.03 of the Florida Statute was constitutional because it reflected a proper balance between the First Amendment and privacy rights, as it applied only to a narrow set of “rather sensitive … criminal offenses” [p. 528]. The Trial Court judge granted B.J.F.’s motion for a directed verdict on the issue of negligence, finding the newspaper per se negligent based on its violation of Section 794.03, leaving the jury to consider only the questions of causation and damages. Consequently, the jury awarded B.J.F. $75,000 in compensatory damages and $25,000 in punitive damages. The judge set off B. J. F.’s settlement with the Department regarding the actual damages award.
The First District Court of Appeal affirmed the decision, explaining that under § 794.03, a rape victim’s name was “of a private nature and not to be published as a matter of law” [p. 259]. Posteriorly, the Supreme Court of Florida denied discretionary review. The newspaper then appealed to the Supreme Court of the United States.
The Court in a 6-3 decision delivered the judgment, finding that the civil damages imposed on The Florida Star violated the First Amendment because the information was lawfully obtained and truthful. The Court gave three opinions. J. Marshall delivered the majority opinion supported by J. Brennan, J. Kennedy, J. Stevens, and J. Blackmun. J. Scalia gave a concurring opinion. J. White gave a dissenting opinion in which J. Rehnquist and J. O’Connor joined. The central issue for the Supreme Court to analyze was if the imposition of civil sanctions on the newspaper under Section 794.03 infringed the First Amendment of the Constitution.
The Court observed the tension between the right to a free press derived from the First Amendment and the protections which various statutes and common-law doctrines protect the right to personal privacy from the publication of truthful information. The Court explained that in previous decisions concerning government attempts to sanction the accurate dissemination of information as invasive of privacy, it had not exhaustively considered this conflict. On the contrary, it noted that although its decisions had, without exception, upheld the press’ right to publish [p. 530].
The Court noted that in this case, the parties framed their contentions in light of a trilogy of cases decided by the Court regarding the conflict between truthful reporting and state-protected privacy interests. The Court explained that in the case of Cox Broadcasting Corp. v. Cohn (1975), a civil damages award was found unconstitutional against a television station for broadcasting the name of a rape-murder victim, which the station had obtained from courthouse records. The Court further referred to f Oklahoma Publishing Co. v. Oklahoma County District Court (1977), wherein a state court’s pretrial order was deemed unconstitutional, forbidding the media from publishing the name or photograph of an 11-year-old boy in connection with a juvenile proceeding. The Court also referred to Smith v. Daily Mail Publishing Co.,(1979) wherein the SCOTUS held the indictment of two newspapers for violating a state statute forbidding newspapers to publish the identity of the juvenile, without the written approval of the Juvenile Court, as unconstitutional [p. 530-531].
The Court recalled that the Appellant’s position was indistinguishable from the case of Cox Broadcasting. It noted that The Florida Star had urged the Court to base its decision on the above trilogy and in other cases in which the Court had held that the “right of the press to publish truth overcame asserted interests other than personal privacy,” can be distilled to yield a broader First Amendment principle that “the press may never be punished, civilly or criminally, for publishing the truth” [p. 532].
The Court noted B.J.F.’s contention that the privacy trilogy was inapplicable since, in each case, the private information had already appeared on a “public record” and because the privacy interests at stake were far less profound than in the present case. Further, the Court recalled that the Appellee urged that the case of Cox Broadcasting be “overruled and replaced with a categorical rule that publication of the name of a rape victim never enjoys constitutional protection” [p. 532].
The Court concluded that notwithstanding the Appellant’s contentions, imposing damages on the Appellant for publishing B. J. F.’s name violated the First Amendment.The Court noted that while there was a strong resemblance between this case and the case of Cox Broadcasting, one of the reasons given in Cox Broadcasting for invalidating the challenged damages award was the important role the press plays in subjecting trials to public scrutiny and thereby helping guarantee their fairness. [p.532]. However, in the instant case, such a role was not directly compromised since the information in question came from a police report prepared and disseminated at a time at which not only had no adversarial criminal proceedings begun, but no suspect had been identified. [p.532]. Additionally, the Court did not accept the Appellant’s request to hold broadly that truthful publication could never be punished consistent with the First Amendment. Moreover, the Court stated that it believed that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights’ sweep no more broadly than the appropriate context of the instant case” [p. 533].
The Court referred to Smith v. Daily Mail, to observe the principle that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information [p. .533]. The Court highlighted that this principle, in addition to the overarching public interest secured by the Constitution, was supported by three considerations;
First, the Court inquired whether The Star published lawfully obtained truthful information about a matter of public significance. The Court observed that the news article describing the assault on B. J. F. was accurate and thus, indisputable. The Court remarked that while the Appellee had argued that under Florida law, police reports which reveal the identity of the victim of a sexual offense were not among the matters of “public record”, it considered that the fact that state officials were not required to disclose such reports did not make it unlawful for a newspaper to receive them when furnished by the government. Moreover, the Court stressed that since the Department released B.J.F.’s name without restrictions, the information was in the public domain and, therefore, had been lawfully obtained. Thus, the Court concluded that the state could not punish the Star for publishing B.J.F.’s name. Similarly, the majority of the Court determined that the crime and the latter police investigation were of “paramount” public concern mandating publication.
The Court then examined whether imposing liability on the Appellant under § 794.03 served a need to further a state interest of the highest order. The Court recalled that the Appellee argued that a rule punishing publication promoted three closely related interests, i.e., the privacy of victims of sexual offenses; the physical safety of such victims, who may be targeted for retaliation if their names become known to their assailants; and the goal of encouraging victims of such crimes to report these offenses without fear of exposure” [p. 537]. The Court underscored that regarding the “tragic reality of rape”, it was undeniable that these were highly significant interests. Thus, it emphasized that it did not rule out the possibility that, in a proper case, imposing civil sanctions for publication of the name of a rape victim might be necessary to advance these interests as to satisfy the Daily Mail standard [p.. 537]. However, the Court stressed that imposing liability for publication in the instant case was too precipitous for advancing these interests to convince us that there is a “need” within the meaning of the Daily Mail formulation for Florida to take this extreme step” [p. 537]. Thus, the SCOTUS deemed that imposing liability upon the Star for publishing a victim’s identity did not meet the Daily Mail criteria and could not be upheld.
Finally, the Court analyzed the Florida Statute to determine whether it correctly served the state’s asserted purpose. The Court explained that Section 794.03 prohibited the publication of identifying information only when it appeared in an “instrument of mass communication”, however, the statute did not define this term. After addressing the statute’s underinclusiveness and its connection to the state’s interest in protecting sexual offense victims, the Court noted that the statute only prohibited “instrument[s] of mass communication” from disseminating information including small-time dissemination by individuals. In the Court’s opinion, a more inclusive definition prohibiting all means of publication was necessary to “evenhandedly advance the state’s purpose.” Given that the statute failed not to prohibit alternative forms of dissemination, the Court found that the statute did not fully achieve its stated purpose.
The Court concluded that it did not hold that truthful publication was automatically constitutionally protected or that there was no zone of personal privacy within which the State may protect the individual from intrusion by the press. However, the Court observed that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order. The Court held that in the instant case, no such interest is satisfactorily served by imposing liability under § 794.03 of the Florida Statute to the Appellant, thus the decision of the lower courts stand reversed.
Justice Antonin Scalia wrote separately to concur, joining the majority opinion of the Court. J. Scalia observed that the rape victim’s discomfort at the dissemination of news of her misfortune among friends would be at least as great as her discomfort at its publication by the media to people to whom she is only a name. However, J. Scalia noted that does not prohibit the former in either oral or written form. Justice Scalia agreed with the majority that no statute that imposes on the media a greater obligation than it imposes on society could address a state interest of the “highest order.”
Justice Byron R. White, joined by Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, dissented, taking issue with the majority opinion’s interpretation of Florida’s Statute. They observed that for a broader analysis emphasizing Florida’s tort law rather than simply deeming the statute underinclusive. J. White reasoned that the majority opinion’s “underinclusiveness” analysis itself is “underinclusive” because the lawsuit against The Florida Star is not an action for violating the Statute which the Court deems underinclusive, but is, more accurately, for the negligent publication of Appellee’s name. J. White observed that the majority’s myopic focus on Section 794.03 ignores the probability that Florida law is more comprehensive than the Court gives it credit for being [p. 550].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by holding that it is unconstitutional for a government agency to impose punishment upon a newspaper for truthfully publishing information that the government had released publicly. The decision upheld the three-prong test to elaborate on how the publication of such sensitive matter, yet truthful information can be published without any liability. Significantly, the dissent’s reasoning on the right to privacy and the balancing test leaves room to consider that since The Florida Star and the State both had policies against the disclosure of such sensitive information, they didn’t consider the right to privacy of the victim. Accordingly, in the instant case, the right to privacy outweighs the public’s right to know, and that leaves the room to wonder what rises to the level of a state interest of the highest order.
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