Florida/Georgia Personal Injury & Workers Compensation

...material released to the press pretrial. There is no dispute that the name should not have been released and that the newspaper itself had a policy against the publication of rape victims' names. Publication appeared to be a criminal violation under section 794.03, Florida Statutes (1985). [2] B.J.F., the rape victim, brought a civil action premised on a statutory duty arising from section 794.03....

...The Florida Star moved for dismissal based on the ground that the theory of recovery violated the first and fourteenth amendments. In denying this motion, the trial court ruled that no such violation would occur, and it specifically upheld the constitutionality of section 794.03. On appeal, the Florida Star again challenged the constitutionality of the statute. The district court affirmed but did not discuss section 794.03 except to quote it verbatim, nor did it expressly uphold the statute against appellant's constitutional challenge....

financial assistance within the meaning of 29 U.S.C. § 794. 3. Defendants James Westberry, Rodney Hollingsworth

...The public records Act mandates disclosure for inspection and copying of all public records with certain exemptions both generally and specifically stated in the Act. As subsequently amended, § 119.07 exempts from its operation public records identifying the victim of a sexual offense, § 794.03, F.S....

...tensive public scrutiny and criticism." A similar issue was addressed by the Court in Florida Star v. B.J.F., ___ U.S. ___, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989). There, a newspaper inadvertently published a rape victim's name in violation *1379 of section 794.03, Florida Statutes (1987), which prohibits such publication....

...Florida Star addressed this point: B.J.F.'s identity would never have come to light were it not for the erroneous, if inadvertent, inclusion by the Department of her full name in an incident report made available in a press room open to the public. Florida policy against disclosure of rape victims' identities, reflected in section 794.03, was undercut by the Department's failure to abide by this policy....

...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 section 794.03, Florida Statutes, which mandates criminal sanctions for identifying a victim of a sexual offense in any instrument of mass communication, facially unconstitutional under both the United States and Florida Constitutions....

...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 section 794.03, Florida Statutes (1989)....

...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 section 794.03....

...The Globe had lawfully learned of the alleged victim's identity through standard investigative techniques. Prior to the Globe's identification of the woman, at least four British newspapers had published articles identifying her as Smith's alleged victim. The Globe filed a motion to dismiss the information arguing that section 794.03 violates *112 the free speech and press provisions of both the First Amendment to the United States Constitution and article I, section 4 of the Florida Constitution....

...The Globe maintained that the statute is unconstitutional both on its face and as applied in this case. The trial court accepted both arguments and dismissed the information. On appeal to the district court, the State conceded that the record supported the ruling that section 794.03 is unconstitutional as applied to Globe....

...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 section 794.03, Florida Statutes (1987). The newspaper had obtained the victim's name from a publicly released police report. The Supreme Court held that The Florida Star could not be subjected to civil liability under section 794.03 for publishing truthful information that had been lawfully obtained....

...t 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 section 794.03, Florida Statutes (1987), unless the statute was narrowly tailored to further a state interest of the highest order....

...ed." 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....

...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, w...

...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 section 794.03, which raises "serious doubts" about whether the statute is serving the significant interests urged by the State in support of affirmance. 491 U.S. at 540, 109 S.Ct. at 2612. As explained by the Court, [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....

...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 section 794.03 are even more troublesome when the statute is used to mandate criminal sanctions. In an attempt to avoid the obvious conclusion that these facial defects render the statute invalid under both the First Amendment and article I, section 4 of the Florida Constitution, the State asks us to effectively rewrite section 794.03....

...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 section 794.03....

...he statute's unambiguous language." 622 So.2d at 1080. Similarly, we cannot say that *114 expanding the scope of the statute to include publications by non-media individuals would be consistent with legislative intent. Although we decline to rewrite section 794.03 to correct the defects outlined in Florida Star, we do not rule out the possibility that the legislature could fashion a statute that would pass constitutional muster. Accordingly, we affirm the district court's decision holding section 794.03 facially invalid under the free speech and free press provisions of both the United States and Florida Constitutions....

...h respect to the plaintiff's commitment there reflected. This would appear to be, in effect, a determination of damnum absque injuria. The order under review compares several sections of Florida Statutes with § 398.18(1). The trial court noted that § 794.03, for example, expressly prohibits publication of the name of any female who is raped or assaulted with an intent to commit rape, and that § 72.27 expressly requires the clerk to index adoption proceedings only in the names of the petitioners....

...Lystad of Baker & Hostetler, Washington, D.C., for Amicus Curiae-Society of Professional Journalists. George K. Rahdert of Rahdert & Anderson, St. Petersburg, for amicus curiae — The Times Pub. Co. ANSTEAD, Judge. We affirm the trial court's order holding that section 794.03, Florida Statutes (1987), which mandates criminal sanctions for anyone who identifies a victim of a sexual offense in any instrument of mass communication, violates free speech and free press provisions of the Constitutions of Florida and the United States, both on its face and in the way it is sought to be applied to the appellee newspaper, Globe Communications Corporation in this case. [1] Section 794.03 prohibits anyone from "print[ing], publish[ing], or broadcast[ing] ......

...on protected speech. The ruling is primarily based upon the decision in The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989), wherein the Supreme Court struck down an award of civil damages predicated upon a violation of section 794.03....

...tion 4 of the Florida Constitution because the protection afforded by this provision is at least as broad as the protection afforded by the First Amendment. In its brief, the state concedes record support exists for the lower court's conclusion that section 794.03 is unconstitutional as applied to Globe under the facts of this case....

...print, publish, or cause to be printed or published in an instrument of mass communication the name, photograph, or other identifying fact or information of the victim of a sexual offense within Chapter 794, Florida Statutes, contrary to Fla. Stat. 794.03....

...The defendant attacks the statute involved as unconstitutional on its face as a violation of the freedom of speech and of the press provisions of the First Amendment to the Constitution of the United States as applied to the States through the Fourteenth Amendment. It is further contended that the statute, F.S. 794.03 (1990) violates Art....

...Sims v. State, 510 So.2d 1045 (Fla. 1st DCA 1987). Motions made under Rule 3.190, which do not fall into the subsec. (c)(4) category, may raise factual issues and it is appropriate for the court to resolve them in order to decide whether Fla. Stat. 794.03 is unconstitutional as applied to the facts of this case. CONSTITUTIONALITY OF FLORIDA STATUTE 794.03 The statute in question, F.S. 794.03, was originally enacted as Sec....

...6226, Laws of Florida, 1911. The question presented by the motion to dismiss is whether the statute is violative of the U.S. Constitution, and particularly the First Amendment thereto as applied to the states through the Fourteenth Amendment. 1. Is Fla. Stat. 794.03 violative of the First Amendment because it is overbroad as a categorical prohibition of media publication of the names of rape victims where the information is truthful, lawfully obtained and involves a matter of public interest? The State of...

...Justice O'Connor concurred, finding as did the majority, that Massachusetts had demonstrated no interest of sufficient importance to justify an automatic exclusion by the public and the press in all cases. The U.S. Supreme Court has held that Fla. Stat. 794.03 is unconstitutionally overbroad in The Florida Star v....

...I also conclude that because the statute imposes a blanket prohibition in publishing the names of all rape victims, without a hearing and a case-by-case determination that restraint of freedom to publish is necessary to accomplish a valid and important State interest, I find and hold today that Florida Statute 794.03 (1990) is unconstitutionally overbroad and that no valid state purpose is served by imposing criminal liability on defendant, The Globe Communications Corp....

...McIntosh, 340 So.2d 904, 908 (Fla. 1977) (dicta). I find that no threat of a danger to either the criminal justice system or to Miss Bowman's safety occurred when defendant printed the latter's name as alleged in Count I and Count II of the Information. 2. Is Fla. Stat. 794.03 violative of The First Amendment as being underinclusive because it leaves unprohibited appreciable damage to a supposedly valid state interest? The Florida Star decision analyzed the above statute as applying only if the identifying informati...

...2613) Because the statute has not been amended following the decision in The Florida Star case, I must follow the U.S. Supreme Court's decision in that case as binding on this Court. I therefore hold that the State may not constitutionally punish the defendant, a mass media business, under Fla. Stat. 794.03, for a disclosure prohibited by the State, when all other means and instrumentalities of dissemination are not regulated by the statute. 3. Is Fla. Stat. 794.03 violative of the First Amendment because it functions as a prior restraint? The statute in question is probably not a "prior restraint" as that term has been traditionally used....

...the timing of the adjudication. An injunction precedes publication while under the statutory system of criminal prosecution, the adjudication comes after publication. Id. at pp. 427, 428. Does it make any difference what label we place on Fla. Stat. 794.03, one of "prior restraint" or "subsequent punishment"? [sic] Probably not....

...In the analysis of the statute in question, I have already addressed the overbreadth issue. I have found the statute is constitutionally infirm because no valid competing state interest is served by punishing defendant for publishing a truthful account of information it had lawfully acquired. 4. Is Fla. Stat. 794.03 violative of Art....

...In the absence of a contrary controlling precedent in Florida, I must therefore assume that the protections afforded by Art. 1, Sec. 4 are at least as broad as that provided by the First Amend., U.S. CONST. Because the Florida protection is at least as broad as that of the First Amendment, Fla. Stat. 794.03 violates the Florida Constitution as well as the First Amendment....

...2603, 2611, [105 L.Ed.2d 443] and in the Daily Mail, Landmark Communications, Bradenton Herald and Globe Newspaper cases. The state has thus failed to carry its burden of sustaining its actions in taking the extreme step of criminal prosecution. Having concluded that Fla. Stat. 794.03 is unconstitutional on its face, and as applied, it is ORDERED that Defendant, THE GLOBE COMMUNICATIONS, CORP.'s Motion to Dismiss is GRANTED and the prosecution begun by the instant information and notice to appear is DISMISSED. OUR REVIEW The trial court's ruling as to the facial invalidity of section 794.03 under the First Amendment rested on three separate legal concepts: (1) overbreadth; (2) prior restraint; and (3) underinclusiveness. OVERBREADTH AND PRIOR RESTRAINT [2] The trial court declared section 794.03 unconstitutionally overbroad because the statute imposes an absolute and blanket prohibition on the publication of information that is truthful, lawfully obtained and involves a matter of public interest....

...ther legitimate speech not threatening to those interests. This is the essential question in an "overbreadth" analysis of a state restriction on speech. Initially, we note that the trial court stated, "The U.S. Supreme Court has held that Fla. Stat. 794.03 is unconstitutionally overbroad in [ The Florida Star ]." See supra at 1072-1073. While this may be functionally accurate, it is not technically correct. In The Florida Star, the Supreme Court never says that section 794.03 is unconstitutionally overbroad; rather, the Court bars the per se civil negligence remedy inferred from a violation of the statute, and limits its holding to the circumstances of the case....

...may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. In the instant case, following the Supreme Court's example in The Florida Star, the trial court correctly determined that section 794.03 fails the Daily Mail test because it imparts criminal punishment automatically, even to truthful information, lawfully obtained, about a matter of public concern, without any discrete determination of whether the prohibition on publication is justified under the particular circumstances presented....

...In our view, this is the essence of the holding in The Florida Star. In The Florida Star, the Court stated: A second problem with Florida's imposition of liability for publication is the broad sweep of the negligence per se *1078 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....

...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, w...

..., 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. Just as with the case of per se civil liability involved in The Florida Star, criminal sanctions mandated by section 794.03 flow automatically with any publication, regardless of the circumstances....

...shed information is already a matter of public record. See id. 491 U.S. at 534-35, 109 S.Ct. at 2610 and cases discussed therein. On appeal, the state has posed the same three interests that were advanced in The Florida Star as purportedly served by section 794.03 in order to justify its restrictions: (1) the privacy rights of the victim; (2) victim safety from retaliation; and (3) encouraging victims to report sexual offenses. While the legitimacy of these concerns is apparent, the question is whether section 794.03 has been narrowly drawn to serve these interests....

...The state has also failed to address the issue of whether this concern, as well as the others discussed above, could be addressed by other, less restrictive, means. In sum then, because criminal liability, like the civil liability in The Florida Star, *1080 flows automatically under section 794.03 upon publication, regardless of the circumstances, and even though the broad ban on publication may not be necessary to effectuate the state's interests, the statute fails the strict tests for overbreadth set out in The Florida Star and Daily Mail and, therefore, is patently violative of the First Amendment....

...rting the purpose of a statute * * *' or judicially rewriting it.") (quoting Scales v. United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 1477, 6 L.Ed.2d 782 (1961)). Reduced to its essence, the state's argument simply makes more glaring the fact that section 794.03 is hopelessly overbroad in its application to constitutionally protected activity, and incapable of any saving construction. UNDERINCLUSIVENESS In The Florida Star, the Supreme Court reasoned that section 794.03 was also flawed because it was underinclusive in its application to disseminators of the protected information....

...If left intact, juries would have to determine the meaning of the phrase on an ad hoc basis, inevitably leading to highly unpredictable results. ARTICLE I, SECTION 4 For the reasons expressed in the trial court's opinion, we also agree with the court's conclusion that section 794.03 violates Article I, Section 4 of the Florida Constitution, which provides: Freedom of speech and press....

...ided by the First Amendment to the United States Constitution. See supra at 1075. CONCLUSION Finding ourselves in substantial accord with the trial court's order, and for the additional reasons set out above, we affirm the trial court's holding that section 794.03, Florida Statutes (1987), both as it is written and as applied here, is violative of the free speech and free press provisions of the Constitutions of the United States and the State of Florida....

...s testimony. While the video tape ran, the newscaster identified appellant by name to the viewing audience. Appellant filed a four-count complaint against appellee. In count I, she sought a declaration that she was a member of the class protected by section 794.03, Florida Statutes (1981)....

...picture remained closed to the public. Because the information was readily available to the public, through the vehicle of a public trial, we must therefore affirm on the basis of Cox Broadcasting. Appellant alleged that appellee's conduct violated section 794.03....

..."If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information." 420 U.S. at 496, 95 S.Ct. at 1046, 43 L.Ed.2d at 350. Thus, there certainly exist situations in which section 794.03 could be applied to protect privacy interests without running afoul of the first amendment....

...ords. In the event such nonpublic information is obtained and printed, published, or broadcast prior to open, public judicial proceedings, the holding of Cox does not purport to prohibit the state from prosecuting those individuals who have violated s. 794.03, ......

...at 1046, 43 L.Ed.2d at 350. Therefore, we believe that in the future it would behoove the media to engage in their own balancing test with an eye to avoiding harm such as may have occurred here. AFFIRMED. SCHEB, A.C.J., and RYDER, J., concur. NOTES [1] 794.03 Unlawful to publish or broadcast information identifying sexual offense victims....

...shed as a matter of law. [2] See Doe v. Sarasota-Bradenton Florida Television Company, Inc., 436 So.2d 328, 330 (Fla. 2d DCA 1983), particularly the reference to Opinion 075-203 of the Attorney General of Florida (July 14, 1975), which suggests that Section 794.03, Florida Statutes, be applied to the prosecution of parties publishing nonpublic information....

...[1] Our review of the record fails to reveal that any of the post-trial motions could be deemed "pending" at the time the notice of appeal was filed. Thus, there appears no error in the trial court's determination that it was divested of jurisdiction by the filing of the notice of appeal. [2] Section 794.03, Florida Statutes, is pertinent and states: 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....

...s of its mishandling of the information.... Id. (citation omitted). In Florida Star, a sheriffs department inadvertently disclosed the name of a victim of sexual assault in a complaint report, and the name was reported by a newspaper in violation of section 794.03, Florida Statutes (1983), which prohibits publication of the identity of a sexual assault victim....

...the defendant and resulting expiration of the trial court’s jurisdiction. In response, the State filed its petition for a protective order to restrain harassment of a victim or witness, under section 914.24(2). The State alleged that Ms. Green had violated section 794.03, Florida Statutes, by publishing the name of the victim of a sexual offense. After argument of counsel on the motion to dissolve and the State’s petition, the trial court dissolved the temporary restraining order against the mother and denied the State’s petition....

...What steps may be legally taken to avoid such exposure? SUMMARY: The name, address, and any other identifying information of the victim of any sexual offense contained within law enforcement records are confidential and are not subject to public disclosure in any manner under s. 119.07 (1), F.S., as amended. Pursuant to s. 794.03 , F.S....

...such information until it is by law made a part of an open, public record or is made public in an open judicial proceeding or public court record. Pursuant to s. 119.07 (2)(b), F.S., the Legislature has decreed that all public records referred to in s. 794.03 , F.S., are exempt from the inspection provisions of s....

..., sound recordings, or other material made or received pursuant to law or in connection with the transaction of official business by any agency be open for inspection and examination by any person at reasonable times and under reasonable conditions. Section 794.03 , F.S....

...both. This statute is presumptively valid and as such must be given full force and effect by this office unless and until decided otherwise by a court of competent jurisdiction. When s. 119.07 (2)(b), as amended in 1975, is read in pari materia with s. 794.03 , F.S....

...(1974 Supp.), it becomes apparent that all identifying information contained in any public record as defined by s. 119.011 , F.S., such as the name, address, or other identifying fact or information concerning the victim of a sexual offense referred to in s. 794.03 is made "confidential by law" and, hence, is outside the purview of Florida's Public Records Law insofar as public inspection is concerned....

...The fact that the information might be disclosed orally as opposed to allowing inspection or examination of the records as hereinabove defined, regardless of physical form or characteristics, is of no import insofar as the prohibitions contained within ss. 119.07 (2)(b) and 794.03 , F.S., are concerned....

...ords. In the event such nonpublic information is obtained and printed, published, or broadcast prior to open, public judicial proceedings, the holding of Cox does not purport to prohibit the state from prosecuting those individuals who have violated s. 794.03 , F.S....

...Williams’ home and, according to the plaintiffs, she and her family were threatened and harassed to such an extent they were ultimately forced to move away from White Springs. The plaintiffs’ suit against the appellees alleged several theories of action: (1) violation of section 794.03, Florida Statutes, (2) negligence, (3) invasion of privacy, loss of consortium, and (4) the admittedly new theory that appellees became liable for damages because they published the plaintiffs’ name “in reckless disregard for the p...