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Louisiana State Univ.

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Monday, April 25, 2005

Justice Kennedy Denies Application for Stay in Prior Restraint Case; First Coast News v. Circuit Court of Florida, St. Johns County

Justice Kennedy has issued a single justice opinion in the case of Multimedia Holdings Corporation, d/b/a as First Coast News, v. Circuit Court of Florida, St. Johns County. First Coast News had challenged two orders of the court. "The first was entered July 30, 2004. It states the court had discovered that copies of the transcript of certain testimony before the grand jury had been released to members of the press as well as to investigators from the St. Johns County Sheriff's office, in apparent violation of Fla. Stat. [sec.] 905.27 (2003). Section 905.27 generally prohibits the disclosure of grand jury testimony, with certain exceptions. As relevant here, the order directs that "[n]o party shall further disclose the contents of the transcript of testimony before the Grand Jury to any person not authority by F. S. 905.27(2)."  After First Coast News intervened to set aside the order, the court issued a second order, which stated that "[a]t no point in the Court's [July 30 Order] is [applicant] precluded or restrained from publishing matters which are public record, nor is [applicant] enjoined or restrained from broadcasting matters in this case. The [July 30 Order] clearly provides that the parties to this action are enjoined from further disclosing the contents of the transcript of testimony before the Grand Jury to any person not authorized by F. S. 905.27(2). The parties to this action are the State of Florida...and defense counsel." Justice Kennedy noted that the trial court "denied applicant's motion to intervene and its motion to set aside the July 30 Order."

The Fifth District Court of Florida denied the newspaper's request for review, and because "the...denial is not appealable to the Florida Supreme Court...applicant filed with me as Circuit Justice an application for a stay of the orders, urging that they operate as a prior restrain in violation of the First and Fourteenth Amendments...The application...is denied...It is not sufficiently established on this record that applicant is enjoined by or otherwise subject to the orders in question or that any threat to is real or substantial; hence it is unlikely that, despite indications that a prior restraint may have been imposed at the time of the first order, four Members of the Court would vote to grant certiorari."

In spite of Justice Kennedy's denial of the application for a stay, his opinion is not entirely what one might call a "loss" for media freedoms. He points out in his analysis of the applicant's arguments that "the court's first order was not accompanied by notice or hearing or any other of the usual safeguards of the judicial process. It bears many of the marks of a prior restraint....The first order is of further concern because it singles out this applicant and could be interpreted to place it on notice that publication of grant jury testimony in the underlying case could subject it to prosecution or place it in contempt of court. Assuming that order constituted a prior restraint, however, any chilling effect it had on speech was substantially diminished by the court's second order. That second order indicates that the court was directing its order only to the conduct of those who are parties to the underlying action....In addition, the second order forecloses interpreting the first order to put applicant on notice that future publication would place it in contempt...To the extent the court's orders might suggest a particular animus toward applicant...the judge who entered them has retired from judicial service."

First Coast News also indicated that it feared contempt proceedings from the judge, and prosecution from the district attorney's office. Justice Kennedy pointed out that "it does not appear that the court may itself institute a prosecution....The decision to charge and prosecute is an executive responsibility..." Further, "[a]lthough the State has not guaranteed applicant immunity from prosecution for future publication of the transcript, it has suggested that further publication will not be prosecuted....True, informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint. Warnings from a court have added weight...If it were to be shown that even the second order might give a reporter or television station singled out earlier any real cause for concern, the case for intervention would be stronger."  Read Justice Kennedy's opinion here.

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