A judge in Palm Beach County has ordered a Florida newspaper to unpublish material from its website, sparking an outraged response from media lawyers who say the order is a clear First Amendment violation and contrary to established precedent on prior restraint.
Circuit Judge Jack Schramm Cox ordered The Palm Beach Post to remove from its website transcripts of telephone recordings in which a jailhouse snitch bragged about his ability to elicit confessions from fellow inmates and how he had arranged a deal with prosecutors for a lighter sentence. The Post also removed two paragraphs from the online version of a story initially posted on October 15 that drew from the recordings to quote the prisoner, Frederick Cobia, boasting about the testimony he could provide in 60 murder cases and his plans to write a book.
The Post has added a note at the top of the older story to explain the unusual edits to it:
“EDITOR’S NOTE: Under the Nov. 30, 2015, order of Palm Beach County Circuit Judge Jack Schramm Cox, The Palm Beach Post has removed transcripts of portions of recordings of phone calls made by Frederick Cobia while being held in the Palm Beach County Jail. Also removed from a previous version of this story are two paragraphs that included quotations from the transcripts. The Post is appealing Cox’s ruling.”
Media lawyers interviewed by both the Post and CJR said they expected that the appeal, likely to be filed this week, would succeed. (Update, 12/7: The Post filed its appeal and the Fourth District Court of Appeal ordered the state of Florida and the inmate’s attorneys to respond to the appeal within five days.)
Cox’s ruling states that it is unclear how the recordings first came into the possession of a public defender, and holds that, though inmates know their conversations are being recorded, the release of those recordings amounted to a violation by the government of Cobia’s privacy rights under state law.
But as any student of the Nixon administration knows, the judge’s order is a prior restraint—something the US Supreme Court has said must be a last resort, not a first one. And the order includes almost no analysis of whether this case meets that high bar.
First Amendment attorneys said the judge’s order was unconstitutional, and just plain wrong. “It’s crazy,” said Scott Ponce, a media lawyer for Holland & Knight. “My guess is the appellate courts will reverse this in no time at all.”
“It’s remarkable in that it’s a prior restraint, which is extraordinary in itself, but it orders the paper to take down information that was already published,” said Martin Reeder, the Post’s attorney. “It’s as though the judge ordered them to take out scissors and cut holes in the newspaper. It’s kind of baffling.”
One of the factors generally considered in whether prior restraint is warranted is whether it will even be effective—which, in this case, seems doubtful. While the Post appears to have pulled the transcripts from its servers, according to the paper’s reporting they are circulating widely among defense attorneys. The Post, in its story on the ruling, also correctly notes that the original version of the October story, which quoted from the transcripts, “continues to live on the internet.” It’s here. The print versions of that story wouldn’t be that hard to track down, either.
Then there’s the fact that there’s no indication the paper itself did anything wrong in obtaining the transcripts.
In fact, at the time of the earlier story, the transcripts were actually public records—the defense attorney who had obtained them submitted them as part of a court filing. (Cox has now ordered the file sealed, according to the Post.)
“A court can’t prohibit a newspaper from publishing information that it lawfully obtained,” Ponce said. “You can’t put the genie back in the bottle.”
And then there’s the separate question of how clear Cobia’s “right to privacy” really is. Inmates in Florida—and the people who receive calls from them—are notified repeatedly that the calls are being recorded. Cox wrote in his ruling that while inmates’ expectation of privacy is not “absolute,” it exists “as to certain matters.”
Ponce, who successfully argued a similar issue in the George Zimmerman case, disagreed.
“People in jail don’t have a right to privacy in their phone calls,” Ponce said. “Their phone calls are recorded and they’re notified of it.”
“I’m surprised he did it with a straight face,” he added, speaking of the judge’s order.
Ponce’s colleague, media attorney Sandy Bohrer, noted that above and beyond the First Amendment issues and the fact that inmates have no expectation of privacy, the transcripts of these calls are a matter of public interest.
Cobia, a convicted murderer, has testified in two murder cases, claiming inmates confessed to him. He is set to testify in three more, and according to the Post has been listed as a prosecution witness in 23 cases over the last two and a half years.
“I don’t understand how the judge did that,” Bohrer said of the order. “It violates the First Amendment. It violates the judicial rules on public records. And your privacy rights are trumped by a variety of things. What can otherwise be private becomes public if it’s matter of public interest, which this clearly is.”
“The public has a legitimate interest in the transcript because this guy is a rather unusual jailhouse snitch,” said Reeder, the Post’s attorney. “He claims to have 60 cases in which people have come to him and confessed. He’s taken more confessions than the Pope. This is a guy who’s going to be a star witness. Certainly any reason he had to make a deal and reduce his prison time is a matter of legitimate public concern.”