Florida law unclear on reporters’ rights, federal judge says

FLORIDA–Florida law is unclear on whether a balancing test should be applied when journalists claim a First Amendment qualified testimonial privilege when non-confidential sources or information are involved, a federal District Court judge in Miami said in late October.

In ordering Miami Herald reporter David Kidwell’s release from the Palm Beach County jail on October 21, District Court Judge Wilkie Ferguson, Jr., stated that it would be “manifestly unjust” to require him to serve his entire 70-day contempt sentence while appealing his case, in light of the uncertainty of Florida law and the clarity of federal law, which requires a balancing test even where no confidential source is involved.

Ferguson found that the Florida Supreme Court has not made clear whether it meant to dispense with case-by-case analysis when journalists claim a constitutional privilege in non-confidential, non- eyewitness cases.

Under such an analysis, a reporter can be compelled to disclose information only if the party requesting the material shows that the information is highly relevant, necessary to the proper presentation of the case, and unavailable from other sources, Ferguson held.

The district judge observed that if the privilege did not apply in Kidwell’s case as a matter of law, there was a question whether any newsgathering activity remained protected from compelled disclosure by the First Amendment.

Kidwell was sentenced October 7 to 70 days in jail and fined $500 for refusing to testify for the prosecution about a jailhouse interview with John Zile, who is accused of killing his stepdaughter. Kidwell is currently appealing the sentence to Florida’s Fourth District Court of Appeal in West Palm Beach. (Kidwell v. Florida; Media Counsel: Sanford Bohrer, Miami)