Another Judge, Another Prior Restraint in Florida

[2:30]

A judge has barred a television station from broadcasting news reports about what it found in 80 boxes of documents that belonged to a political consultant at the center of an election law scandal.

WKMG-TV cannot report about the boxes' contents until the courts decide whether the station properly obtained them, Orange Circuit Judge Rom Powell ruled Friday. He said the broadcasts, scheduled to begin Monday, would destroy any privacy rights consultant Doug Guetzloe might have.

The station says it received the documents from a man who bought them for $10 at auction after Guetzloe failed to pay his rent at a self-storage unit where they had been kept.

Henry Maldonado, WKMG's vice president and general manager, said the station's attorneys expect to have Powell's order lifted in time to air the reports as scheduled.

"I'm confident we'll prevail and I'm confident the First Amendment will prevail," Maldonado said.

Guetzloe and his attorney Fred O'Neal maintain the documents are still legally Guetzloe's and that they were auctioned in error. Some of the documents are medical records and protected correspondence with attorneys, they argued.

"I was optimistic, but this was a pleasant surprise," Guetzloe said of the ruling. He faces misdemeanor charges for allegedly violating campaign disclosure laws relating to an attack ad on a suburban candidate for mayor.

Guetzloe, who hosts a local radio show billed as "The Voice of the People," has also been criticized because the Orlando Magic paid him $200,000 not to oppose plans for their planned new arena. Also, a Kissimmee resort gave him $87,000 when it was pursuing public money to expand a convention center, and the local expressway authority paid him $107,500 to evaluate opposition to toll increases despite his heavy criticism of the agency.

Barbara Petersen, president of the First Amendment Foundation in Tallahassee, said court rulings barring news organizations from publishing or broadcasting are rare.

"Generally speaking, government cannot prohibit publication of information that's legally obtained," she said.

[Spike]

Originally posted by 2:30:
A judge has barred a television station from broadcasting news reports about what it found in 80 boxes of documents that belonged to a political consultant at the center of an election law scandal.

WKMG-TV cannot report about the boxes' contents until the courts decide whether the station properly obtained them, Orange Circuit Judge Rom Powell ruled Friday. He said the broadcasts, scheduled to begin Monday, would destroy any privacy rights consultant Doug Guetzloe might have.If I read that correctly, I don't think this is actually a case of prior restraint. The judge did not rule that the station couldn't air the information. He ruled they couldn't air the information until a legal question about whether the records were obtained illegally is answered. There's a big difference.

If there's a legitimate question as to whether the records were obtained legally (and whether illegally obtaining them would prohibit them from being aired), then it makes sense for the judge to enjoin them to hold off until the question can be answered. Otherwise, if it turns out the station didn't have any right to the info, the damage is already done by that point.

I'm sure the judge will lift the order once the question is answered. That seems to be the position being taken by the experts:

Originally posted by 2:30:
Barbara Petersen, president of the First Amendment Foundation in Tallahassee, said court rulings barring news organizations from publishing or broadcasting are rare.

"Generally speaking, government cannot prohibit publication of information that's legally obtained," she said.So the question is whether it was legally obtained. Once that is established, then the judge will decide whether it can be published. So far he hasn't prohibited the publication of information that was legally obtained; he has only postponed its publication until the legal question can be answered.

On the other hand:

Originally posted by 2:30:
Guetzloe and his attorney Fred O'Neal maintain the documents are still legally Guetzloe's and that they were auctioned in error. Some of the documents are medical records and protected correspondence with attorneys, they argued.If that's the basis of their argument, they're going to lose. Priveleged information is only priveleged until it is disclosed to a third party. Even someone overhearing a priveleged conversation renders the information no longer priveleged. Privelege only covers the lawyer, his client, people who work for the lawyer and the client's spouse. If the lawyer or client *****s up and lets someone else get the info, it's no longer priveleged.

[ February 05, 2007, 10:19 AM: Message edited by: Spike ]

[2:30]

Nope, no difference. A prior restraint is a prior restraint.

But you're right about the argument, and, I think they'll lose.

[Pro]

If memory serves, I do not believe that the only thing the media can be "prior restrained" from publishing/broadcasting are matters of national security. If it ISN'T a matter of national seccurity (as determined by the courts), there can be no prior restraint, for any reason.

This does not let the media off the hook. If is proven that the materials were illegally obtained (or were liabelous or slanderous) they can be prosecuted or sued - after the fact . But not before.

I'm fairly sure that is correct.

[Spike]

Originally posted by 2:30:
Nope, no difference. A prior restraint is a prior restraint.On second thought, I think you're right, it is a prior restraint. But I don't think it's an illegal prior restraint.

The exceptions Pro cited about national security come from cases in which parties sought to prohibit information from being published at all, either permanently or indefinitely. Whether a judge can order publication from being delayed until legal questions concerning the information can be resolved has never really been definitively answered. Language from the major case law has left open the possibility that a judge can legally issue such an injunction, but these types of injunctions are usually lifted before there's a chance to pursue it to a higher court to clarify.

I really don't see this as a sinister attack on freedom of the press. The judge just wants to stop the wheels from turning long enough to make sure a mistake isn't being made. Mark my words, he'll lift this injuction very soon, probably before the reports are even scheduled to air.

But that leads me to question again whether this can really be considered a prior restraint. Is it a prior restraint if the stories haven't been prevented from being aired? Because as of right now, that hasn't happened. The stories are supposed to air tonight. If the injunction is lifted before then, and the stories air as scheduled, was there actually a prior restraint? Or was it just the threat of a prior restraint?

[Pro]

Originally posted by Spike:
The exceptions Pro cited about national security come from cases in which parties sought to prohibit information from being published at all, either permanently or indefinitely. Whether a judge can order publication from being delayed until legal questions concerning the information can be resolved has never really been definitively answered. But why would that be necessary? If the judge determined the material was obtained illegally, then what would he do? Even illegally obtained material cannot be "prior restrained". The media outlet CAN be prosecuted or sued, but only after they published/broadcast the material.

What was the purpose in delaying the prublication?

[Spike]

Well, now I'm starting to agree with you guys, especially since that judge refused to hear the case today. It really is starting to appear to be a case of prior restraint to give people who might be named in those files time to prepare.

But what can the station do about it? By the time they appeal it, it will likely be lifted. If it's lifted, there's nothing to appeal, and nothing to stop a judge from doing the same thing on the next case.