Florida appeals court reverses order to ‘unpublish’ information

Photo from The Florida Fourth District Court of Appeal

A Florida appeals court has issued a brief but pointed rebuke to a Palm Beach County judge who believed he was within his rights to order a newspaper to “unpublish” information it had legally obtained—a clear win for the First Amendment that came with a stylistic flourish.

I wrote for CJR back in early December about an order by Circuit Judge Jack Schramm Cox directing the Palm Beach Post to remove from its website transcripts of telephone recordings in which a jailhouse snitch—who was slated to testify in a series of trials—bragged about his ability to elicit confessions from fellow inmates. The transcripts, which a public defender put in a court file, were part of the public record when the Post obtained and published them.

The order was widely expected to be overturned, and in late December, Florida’s Fourth District Court of Appeal did toss out the order, allowing the paper to republish the material. Last week, the appeals court got around to issuing its written opinion in the case, and it’s as short and sweet an explanation of First Amendment principles as you could hope for.

The appeals court started with the basics: “A prior restraint on publication, or censorship of information that has already been published, is presumptively unconstitutional under the First Amendment.” There’s an enormous burden to overcome that presumption, and the privacy interests of a jailhouse snitch talking on a jail telephone don’t come close to meeting it. The court also found that Judge Cox failed to comply with Florida’s quite simple rules of procedure when he attempted to circumvent the Constitution by sealing court records.

But the grace notes in the ruling came from a concurring opinion by Judge Cory J. Ciklin, who quoted famous First Amendment cases and a late Palm Beach Post reporter in order to emphasize the fairly obvious reasons why a judge cannot just order newspapers to unpublish information, particularly information that was legally obtained.

Ciklin’s opinion quoted Susan Spencer-Wendel, a 20-year Post veteran and courts reporter who left the paper in 2013 after learning she had ALS. She spent the remaining days of her life traveling with friends and family and writing a book about living while dying.

The book, Until I Say Goodbye, became a New York Times bestseller. In it, Spencer-Wendel described why she loved being a reporter, and why she believed in it. Ciklin’s opinion ends with this passage, drawn from the book:

It was a privilege to go to work each day and grow democracy, to ferret out stories no one wanted told, to be trusted to inform and, yes, entertain our readers. When someone would ask me: “Who sent you?” I loved to reply: “Well, ma’am, that would be Thomas Jefferson.”

No one at the Palm Beach Post was surprised by the ruling. But Ciklin’s decision to memorialize Spencer-Wendel in a way she would have cherished was particularly poignant.

“The reference to Susan made this opinion even more meaningful to the Post family,” said managing editor Nick Moschella. “She believed in forcing change in a fair and accurate manner. She would have been leading this charge.”

Martin Reeder, the Post’s attorney, believes the appellate court ruling, with Judge’s Ciklin’s concurring opinion, will be a “teaching opinion,” something lawyers and judges will study to understand the law.

“Trial judges occasionally enter prior restraints,” he said. “It’s hard to understand how that happens considering how well settled the law is. The majority opinion was perfectly accurate and efficiently concise. Judge Ciklin’s opinion adds that touch of lofty ideals that is welcome in a First Amendment case.”

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Susannah Nesmith is CJR’s correspondent for Florida and Georgia. She is a freelance writer based in Miami with more than 25 years working for regional and national outlets. Follow her on Twitter @susannahnesmith.