Florida
Reporter's Privilege Compendium
James B. Lake
Daniela Abratt-Cohen
Linda R. Norbut
Elizabeth D. Ernest
Thomas & LoCicero PL
601 South Boulevard
Tampa, FL 33606
Tel: 813-984-3060
Fax: 813-984-3070
www.tlolawfirm.com
Last updated September 15, 2023
I. Introduction: History & Background
The reporter’s privilege in Florida, as in most states, finds it roots in the First Amendment and the plurality opinion of Branzburg v. Hayes, 408 U.S. 665 (1972). The privilege exists in the common law and constitutional law of Florida and embodies a recognition that protecting a free and unfettered press is a sufficiently compelling interest to justify depriving litigants of potential sources of information in many cases. See, e.g., State v. Davis, 720 So. 2d 220 (Fla. 1998); Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986).
In 1976, in light of Branzburg, Florida first afforded a qualified reporter’s privilege. See Morgan v. State, 337 So. 2d 951 (Fla. 1976). In Morgan, the Florida Supreme Court adopted the balancing test set forth in Justice Powell’s concurring opinion in Branzburg. Thus, in assessing whether the journalist’s privilege is overcome, a court must balance the interest sought to be advanced in compelling disclosure against the public’s interest in unencumbered access to information. Over the next two decades, Florida courts refined that balancing test. Today, Florida’s common law privilege protects a journalist’s news-gathering information unless the subpoenaing party shows that the information sought is relevant to the specific issues in the case, that the information cannot be obtained by means less destructive of First Amendment rights, and that a compelling interests exists in disclosure sufficient to override the interests protected by the privilege. See Davis, 720 So. 2d at 224.
In 1998, the balancing test was codified in Section 90.5015, Florida Statutes. The statute became effective on May 12, 1998. As with the common law privilege, once the statutory privilege attaches, it only can be overcome by a clear and specific showing that the information in the journalist’s possession is relevant and material to unresolved issues in the case, cannot be obtained from alternative sources, and compelling need exists that requires disclosure. Section 90.5015, by its express terms, does not limit the privileges existing under the First Amendment, Florida Constitution (Article I, § 4), or Florida common law. § 90.5015(5), Fla. Stat. (2023). Thus, it is appropriate to assert the U.S. and Florida constitutions, Florida common law, and Section 90.5015 in objecting to a reporter’s subpoena. As a practical matter, however, the statutory protection is similar to the protection available to journalists in Florida under federal law. See United States v. Fountain View Apartments, Case No. 6:08-cv-891-ORL-35-DAB, 2009 WL 1905046, n.5 (M.D. Fla. July 1, 2009) (application of either federal common law or Section 90.05015(2) “will yield the same result, as the factors of each are virtually indistinguishable”) (quoting McCarty v. Bankers Ins. Co., Inc., 195 F.R.D. 39, 46 (N.D. Fla. 1998)); Gregory v. Miami-Dade County, Case No. 13-21350-CIV, 2015 WL 3442008 , n.7 (S.D. Fla. May 28, 2015) (same).
CompareII. Authority for and source of the right
CompareA. Shield law statute
In 1998, when passing Section 90.5015, the Florida House of Representatives specifically noted that the statute would both enhance the media’s ability to collect news and impede the discovery of media-held evidence. The House also noted that the privilege would clarify the common law to provide protection for non-confidential information and that the privilege would not be waived by voluntary disclosure.
As set forth in the Florida Evidence Code, Section 90.5015 reads:
90.5015 Journalist’s privilege.--
(1) DEFINITIONS.--For purposes of this section, the term:
(a) “News” means information of public concern relating to local, statewide, national, or worldwide issues or events.
(b) “Professional journalist” means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in the provisions of this section.
(2) PRIVILEGE.--A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that:
(a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
(b) The information cannot be obtained from alternative sources; and
(c) A compelling interest exists for requiring disclosure of the information.
(3) DISCLOSURE.--A court shall order disclosure pursuant to subsection (2) only of that portion of the information for which the showing under subsection (2) has been made and shall support such order with clear and specific findings made after a hearing.
(4) WAIVER.--A professional journalist does not waive the privilege by publishing or broadcasting information.
(5) CONSTRUCTION.--This section must not be construed to limit any privilege or right provided to a professional journalist under law.
(6) AUTHENTICATION.--Photographs, diagrams, video recordings, audio recordings, computer records, or other business records maintained, disclosed, provided, or produced by a professional journalist, or by the employer or principal of a professional journalist, may be authenticated for admission in evidence upon a showing, by affidavit of the professional journalist, or other individual with personal knowledge, that the photograph, diagram, video recording, audio recording, computer record, or other business record is a true and accurate copy of the original, and that the copy truly and accurately reflects the observations and facts contained therein.
(7) ACCURACY OF EVIDENCE.--If the affidavit of authenticity and accuracy, or other relevant factual circumstance, causes the court to have clear and convincing doubts as to the authenticity or accuracy of the proffered evidence, the court may decline to admit such evidence.
(8) SEVERABILITY.--If any provision of this section or its application to any particular person or circumstance is held invalid, that provision or its application is severable and does not affect the validity of other provisions or applications of this section.
90.5015, Fla. Stat. (2023).
The privilege is qualified and extends to both confidential and non-confidential sources and information. Muhammad v. State, 132 So. 3d 176, 190 (Fla. 2013); State v. Davis, 720 So. 2d 220, 222 (Fla. 1998). In 1993, the Florida legislature passed a similar reporter’s privilege bill that would have created an absolute privilege not to reveal information obtained from confidential sources. The bill was vetoed by the Governor.
CompareB. State constitutional provision
Article I, sec. 4 of the Florida Constitution is the state law counterpart to the U.S. Constitution’s First Amendment. This provision may be cited generally in support of the existence of a constitutional journalist’s privilege. There is no provision in the Florida Constitution that specifically addresses the journalist’s privilege.
CompareC. Federal constitutional provision
Prior to, and even after enactment of Florida’s shield law, a journalist’s privilege existed in Florida under the authority of Branzburg v. Hayes, 408 U.S. 665 (1972), which found that a journalist’s privilege exists under the First Amendment in some cases. See Morgan v. State, 337 So. 2d 951 (Fla. 1976). The privilege exists in the common law and constitutional law of Florida and embodies a recognition that protecting a free and unfettered press is a sufficiently compelling interest to justify depriving litigants of potential sources of information in many cases. See, e.g., State v. Davis, 720 So. 2d 220 (Fla. 1998); Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986).
In 1976, in light of Branzburg, Florida first afforded a qualified reporter’s privilege. See Morgan v. State, 337 So. 2d 951 (Fla. 1976). In Morgan, the Florida Supreme Court adopted the balancing test set forth in Justice Powell’s concurring opinion in Branzburg.
The statute, enacted in 1998, expressly provides that it does not supersede these traditional sources of the journalist’s privilege. § 90.5015(5), Fla. Stat. (2023). Thus, advocates seeking to quash a subpoena to a reporter should cite the shield law, as well as the constitutional and common law bases for the privilege.
CompareD. Other sources
There are no other sources for the reporter’s privilege in Florida.
CompareIII. Scope of protection
CompareA. Generally
The reporter’s privilege in Florida provides fairly broad protection to professional journalists wishing to avoid revealing their sources and information. Because the statute requires an evidentiary hearing at which the subpoenaing party must make a clear and specific showing that all three prongs of the test for overcoming the privilege are met, the journalist bears very little burden in establishing the entitlement to the privilege. So long as the journalist falls within the statutory definition of “professional journalist” contained in the statute and the information sought was obtained while actively gathering news, the privilege will attach, and the burden shifts to the party seeking disclosure to make the requisite showing.
CompareB. Absolute or qualified privilege
The statutory privilege in Florida is qualified in all cases. The privilege is qualified because it applies only to “information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recordings of crimes.” § 90.5015(2), Fla. Stat. (2023). The Fifth District Court of Appeal of Florida has held that the words “of crimes” in the statute modify “physical evidence,” “eyewitness observations” and “visual or audio recordings.” See News-Journal Corp. v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999); see also Smoliak v. Greyhound Lines, Inc., 33 Media L. Rep. 2452 (N.D. Fla. 2005) (applying Florida law) (privilege applies to journalist’s eyewitness observations because there was no indication that journalist observed commission of crime). Thus, the privilege should be read not to apply to physical evidence of crimes, eyewitness observations of crimes, or visual or audio recordings of crimes. The privilege does apply to information concerning crimes, and such information is subject to the balancing test. See id. The privilege is further qualified by the three-part test that allows litigants to defeat the privilege in certain circumstances. See § 90.5015(2), Fla. Stat. (2023).
CompareC. Type of case
Compare1. Civil
The qualified reporter’s privilege applies equally in civil and criminal proceedings. See Morris Communications Corp. v. Frangie, 720 So. 2d 230, 231-32 (Fla. 1998) (regarding application of privilege to disclosure of confidential and non-confidential information in civil proceedings).
Compare2. Criminal
The qualified reporter’s privilege applies equally in civil and criminal proceedings. See State v. Davis, 720 So. 2d 220 (Fla. 1998); Kidwell v. State, 730 So. 2d 670 (Fla. 1998). Both Davis and Kidwell were decided after the statutory privilege was enacted but are based upon the common law privilege.
Although the same three-part test applies for overcoming the reporter’s privilege in a criminal case as it does in a civil case, a criminal defendant’s constitutional rights to due process and compulsory process must be considered in determining whether a compelling need exists in favor of disclosure. See Davis, 720 So. 2d at 227. Further, to the extent that the privilege does not apply to evidence of crimes, the privilege affords greater protection to journalists who are subpoenaed to testify or provide information in civil cases rather than criminal cases. See id.
Compare3. Grand jury
The standard for overcoming subpoenas to appear before or provide information to the grand jury is the same as the standard for overcoming subpoenas in the context of criminal and civil proceedings. See Morgan v. State, 337 So. 2d 951 (Fla. 1976).
CompareD. Information and/or identity of source
The shield law expressly protects journalists from disclosure of the identity of any sources as well as the information obtained from them. § 90.5015(2), Fla. Stat. (2023).
CompareE. Confidential and/or nonconfidential information
The statute itself does not address whether the privilege protects non-confidential information. However, the Florida Supreme Court has repeatedly found that the privilege applies equally to both confidential and non-confidential information. See State v. Davis, 720 So. 2d 220, 222 (Fla. 1998) (the privilege applies to factual situations involving both non-confidential and confidential information); Morris Communications Corp. v. Frangie, 720 So. 2d 230, 231 (Fla. 1998) (confirming that Davis, which held that the privilege applies to non-confidential information in the context of a criminal proceeding, applies with equal force in civil proceedings). Thus, in both criminal and civil proceedings, non-confidential information is protected from disclosure unless the subpoenaing party can make the requisite showing to overcome the privilege.
CompareF. Published and/or non-published material
Application of the privilege is not dependent upon whether the information is published. In fact, the statute explicitly recognizes a privilege exists even in material that is published or broadcast. § 90.5015(4), Fla. Stat. (2023).
CompareG. Reporter's personal observations
Florida’s journalist privilege does not protect physical evidence, eyewitness observations, or visual or audio recordings of crimes. § 90.5015(2), Fla. Stat. (2023). The words “of crimes” in the statute modify “physical evidence,” “eyewitness observations,” and “visual or audio recordings.” See News-Journal Corp. v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999). Thus, the statutory privilege does not apply to physical evidence of crimes, eyewitness observations of crimes, or visual or audio recordings of crimes. Eyewitness observations of non-criminal activity are covered by the privilege. Id.; see also Wilensky v. Gooding, 31 Media L. Rep. 1641 (Fla. 7th Cir. Ct. Apr. 7, 2003).
Documents are not “physical evidence” within the meaning of the exception to the statute. News-Journal, 741 So. 2d at 575. The privilege protects against compelling disclosure of “information,” and that term is not limited to the reporter’s recollection. Rather, the term encompasses broad categories of things, such as notes, letters, papers, and microfiche. Such things are information concerning crimes, not physical evidence of crimes, and this information is subject to the balancing test. See id. Likewise, when a journalist witnesses an arrest, he or she is not making an eyewitness observation of a crime, unless a crime is committed at the time of arrest. See Florida v. Abreu, 16 Media L. Rep. 2493, 2494 (Fla. Cir. Ct. 1989) (applying common law privilege).
CompareH. Media as a party
Florida’s journalist privilege statute does not distinguish cases in which the media are parties from other cases. Even if the journalist is a party, the court must still apply the statutory balancing test. See, e.g., Gubarev v. BuzzFeed, Inc., Case No. 1:17-cv-60426-UNGARO/O’SULLIVAN, 2017 WL 6547898 , at *4-5 (S.D. Fla. 2017) (applying Florida statutory privilege in removed defamation case against website); TheStreet.com, Inc. v. Carroll, 20 So.3d 947, 948-50 (Fla. 4th DCA 2009) (applying statutory privilege in defamation case against website and reporter); News-Journal Corp. v. Carson, 741 So. 2d 572, 575-76 (Fla. 5th DCA 1999) (finding statutory privilege applicable but overcome in libel case against newspaper, officers and employees); Gadsden County Times, Inc. v. Horne, 426 So. 2d 1234, 1240 (Fla. 1st DCA 1983) (applying common law privilege).
However, the test may be easier to overcome when the journalist is a party to the underlying proceeding. See, e.g., Campus Communications, Inc. v. Freedman, 374 So. 2d 1169, 1170 (Fla. 1st DCA 1979) (“[W]hen a newspaper becomes entangled in purely civil litigation, at least if it is a party, governmental intrusion is only peripherally involved.”). For example, in a defamation action, a plaintiff may need to intrude upon the newsgathering process to show actual malice. See Carson, 741 So. 2d at 572 (where upholding the privilege has the effect of making “actual malice” impossible for the plaintiff to prove against the media defendant, upholding the privilege is less compelling). Particularly in defamation actions, where establishing what the publisher knew or did not know depends on the information that the journalist had in his or her possession at the time of publication, the privilege may not act as both a sword and a shield. In such a case, the privilege would apply, but it might be overcome on the theory that the media cannot invoke the privilege to prevent the other side from proving its case. See, e.g., Cable News Network, Inc. v. Black, 308 So. 3d 997, 1000-01 (Fla. 4th DCA 2020) (“Because this is a defamation action, upholding the privilege may make proof of fault impossible because ‘establishing what the publisher knew or did not know at the time of publication depends on the kind and quality of the information and identity of the sources at hand when the publication was made.’” (quoting Carson, 741 So. 2d at 576)); Carroll v. TheStreet.com, Inc., Case No. 11–CV–81173, 2014 WL 5474048, at *8 (S.D. Fla. 2014) (applying state law and finding disclosure of source was necessary for private-figure plaintiff to demonstrate that journalists did not use reasonable care in publishing allegedly defamatory article).
CompareI. Defamation actions
As a general rule, the privilege operates no differently in defamation actions than it does in any other. There is no “libel exception” that operates to preclude the invocation of a journalist’s privilege in a libel action, whether or not the journalist is a party, and the three-part test applies. See, e.g., Gubarev v. BuzzFeed, Inc., No. 1:17-cv-60426, 2017 WL 6547898, at *5 (S.D. Fla. Dec. 21, 2017) (finding Plaintiffs failed to make a clear and specific showing that the information sought could not be obtained from an alternative source and therefore did not overcome Florida’s statutory reporter’s privilege); Fancher v. Lee Co. Humane Society Inc., 27 Media L. Rep. 1447 (Fla. Cir. Ct. Dec. 14, 1998) (applying three-part test to quash subpoena to non-party journalist in defamation case); Gadsden County Times, Inc. v. Horne, 426 So. 2d 1234, 1242 (Fla. 1st DCA 1983) (same); Overstreet v. Neighbor, 9 Media L. Rep. 2255, 2256 (Fla. 13th Cir. Ct. Sept. 13, 1983) (privilege sustained in defamation action because subpoenaing parties failed to demonstrate that they had exhausted alternative sources for the information); Coira v. Depoo Hosp., 4 Media L. Rep. 1692, 1593 (Fla. 16th Cir. Ct. Nov. 6, 1978) (upholding privilege in libel action against doctors who were featured in newspaper article).
Further, penalties for noncompliance with a subpoena in a libel case are no different than the general penalties for noncompliance that operate in all cases. There is no added threat of “presumed malice” based on noncompliance with a subpoena in a defamation case.
CompareIV. Who is covered
Generally speaking, Florida’s shield law protects “professional journalists” from compelled disclosure of information obtained while actively gathering “news” as both these terms are defined by the statute.
CompareA. Statutory and case law definitions
Compare1. Traditional news gatherers
Comparea. Reporter
Florida’s statutory privilege applies only to “professional journalists.” A professional journalist is “a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine.” § 90.5015(1)(b), Fla. Stat. (2023).
Compareb. Editor
An editor is protected by Florida’s statutory privilege if he or she is regularly engaged in editing news for gain or livelihood and obtained the information at issue while working as an employee of or contractor for a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. § 90.5015(1)(b), Fla. Stat. (2023).
Comparec. News
Florida’s statutory privilege defines “news” as “information of public concern relating to local, statewide, national, or worldwide issues or events.” § 90.5015(1)(a), Fla. Stat. (2023).
Compared. Photo journalist
A photojournalist is protected by Florida’s statutory privilege if he or she is regularly engaged in photographing or recording news for gain or livelihood and obtained the information at issue while working as an employee of or contractor for a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. § 90.5015(1)(b), Fla. Stat. (2023).
Comparee. News organization/medium
The privilege generally protects employees and independent contractors of newspapers, news journals, news agencies, press associations, wire services, radio stations, television stations, networks, and news magazines. § 90.5015(1)(b), Fla. Stat. (2023). The statute itself does not specifically address Internet-based communications, but the statutory privilege has been invoked successfully by Internet publications and their reporters. See, e.g., Gubarev v. BuzzFeed, Inc., No. 1:17-CV-60426, 2017 WL 6547898, at *4 (S.D. Fla. Dec. 21, 2017) (“Because BuzzFeed writes stories and publishes news articles on its website, it qualifies as a ‘news agency,’ ‘news journal’ or ‘news magazine.’ Accordingly, BuzzFeed is covered under the Florida Shield Law. Defendant Smith is also covered by the Florida Shield Law through his employment at BuzzFeed.”); TheStreet.com, Inc. v. Carroll, 20 So. 3d 947, 948 (Fla. 4th DCA 2009) (noting that parties seeking to invoke privilege were “a financial media company, internet website and publisher” and “an investigative reporter for the company’s publications”).
Compare2. Others, including non-traditional news gatherers
Book authors are expressly excluded from the protection of the statutory privilege. § 90.5015(1)(b), Fla. Stat. (2023). However, the common law reporter’s privilege in Florida recognizes a privilege for book authors. See Fla. v. Trepal, 24 Media L. Rep. 2595, 2596 (Fla. Cir. Ct. 1996) (the author “was functioning as a novelist and not a true news ‘reporter.’ However, the qualified reporter’s privilege is applicable to [the author’s] situation”). The Trepal court noted that the author’s intent was to disseminate information to the public. See id. (citing Branzburg, 408 U.S. at 705 (“the informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists”)). Thus, advocates seeking to quash a subpoena to a book author should base their objection on the common law and constitutional privileges.
CompareB. Whose privilege is it?
The privilege in Florida belongs to the reporter by the terms of the shield law; however, as a practical matter, it is advisable to file any motions to quash subpoenas to reporters on behalf of both the reporter and the media entity by which the reporter is employed.
CompareV. Procedures for issuing and contesting subpoenas
CompareA. What subpoena server must do
Compare1. Service of subpoena, time
Florida has no special rules that govern the timing of service of subpoenas to reporters. Thus, the general provisions contained in the Florida Rules of Criminal Procedure and Rules of Civil Procedure apply. Those rules do not fix the time for service of a subpoena. Florida law generally requires that legal papers must be served upon individuals personally or at their residence. See § 48.193(3), Fla. Stat. (2023); Stoeffler v. Castagiola, 629 So. 2d 196 (Fla. 2d DCA 1993); Fla. Att’y Gen. Op. 72-128 (Apr. 6, 1972).
Compare2. Deposit of security
Florida does not require that the subpoenaing party deposit any security in order to procure the testimony or materials of the reporter.
Compare3. Filing of affidavit
Florida does not require that the subpoenaing party make any sworn statement in order to procure the reporter’s testimony or materials.
Compare4. Judicial approval
Florida does not require that the subpoenaing party obtain judicial approval before subpoenaing a professional journalist. However, when the journalist objects to the subpoena or files a motion to quash, the judge is required to hold a hearing as to whether the privilege is overcome. See 90.5015(3), Fla. Stat. (2023).
Compare5. Service of police or other administrative subpoenas
Florida’s administrative code is similar to the Florida Rules of Civil Procedure. See e.g., Fla. Admin. Code. Ann. R. 4-170.119(6) (subpoenas in Department of Insurance proceedings are to be served in the manner provided by law for service of subpoenas issued by a circuit court).
CompareB. How to Quash
The most important step in challenging a subpoena is to assert the privilege via a Motion to Quash or for Protective Order. Florida Rules of Civil Procedure 1.280 and 1.410 govern subpoenas in civil cases. These rules, in conjunction with Rule of Criminal Procedure 3.220(h), should be used as the basis for challenging subpoenas in criminal cases.
In the interest of responding quickly, the motion may be very short. The motion may contain a supporting memorandum of law or a memorandum may be filed at a later time but before the hearing on the motion. As judges are not often familiar with the contours of the privilege, a memorandum of law often is helpful in educating the judge about the privilege.
Compare1. Contact other party first
The law does not require that the subpoenaing party be contacted prior to filing a motion to quash or for a protective order. Local court discovery rules concerning disputes, however, may require such a conference. Moreover, as a practical matter, contacting the subpoenaing party may bring about resolution without the necessity of filing a motion to quash. For example, the subpoenaing party may request a copy only of what was broadcast or a copy of the published article. Many news organizations routinely make those items available to the public for a small fee and have no objection to making them available under the same terms to parties in litigation.
Compare2. Filing an objection or a notice of intent
A notice of intent is not required prior to filing a motion to quash. Service of an objection, as opposed to a motion to quash, is sufficient to stay the production of documents in response to a deposition subpoena duces tecum. See Fla. R. Civ. P. 1.410(e).
Compare3. File a motion to quash
Comparea. Which court?
The motion to quash should be filed in the same court that is hearing the underlying case.
Compareb. Motion to compel
A person under subpoena should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash. Failure to obey a subpoena may result in a contempt citation. If the subpoenaing party will not voluntarily extend the time for compliance until the privilege issue is heard, an emergency hearing may be the safest course.
Comparec. Timing
If a subpoena duces tecum for deposition is served in a civil matter, a written objection to the production of documents must be served within 10 days after service of the subpoena or on or before the time specified for compliance (whichever is shorter). Fla. R. Civ. P. 1.410(e). Service of the objection stays the obligation to produce documents. The rule does not specify whether the objection stays the obligation to produce deposition testimony. Therefore, in the unlikely event that the subpoenaing party does not agree to postpone the deposition pending a hearing on the objection, the person subpoenaed might file a motion to quash within 10 days of receipt or on or before the time specified for compliance, whichever is shorter, or serve an objection and appear for deposition without documents and assert the privilege.
Florida’s rules do not require a motion to quash be filed within a certain number of days after receipt of the subpoena. However, it is advisable to file the motion to quash as soon as possible, and in all cases, this must be done before the date specified for production or testimony on the subpoena. Fla. R. Civ. P. 1.351(b); Fla. R. Crim. P. 3.361(c). The mere filing of a motion does not stay the obligation to appear for deposition.
Compared. Language
The motion should be relatively short. It should state that the reporter has received a subpoena. It should track that statutory language by stating that the reporter is a “professional journalist” and that any information the reporter has was obtained while “actively gathering news.” In some cases, where the application of the privilege is unclear, an affidavit from the recipient of the subpoena may be helpful in establishing the privilege.
The motion should state that the objection to the subpoena is based on constitutional, common law, and statutory grounds. This way, if the shield law is held not to apply for some reason, then the reporter may seek the protection of the constitutional and statutory privileges. The shield law itself expressly retains the protections of the common law and constitutional privileges. § 90.5015(5), Fla. Stat. (2023).
After establishing that the recipient of the subpoena is a professional journalist and asserting the privilege, the motion should state the three-part test for overcoming the privilege. Because most subpoenas are received before any evidentiary showing by the subpoenaing party, the motion should also clearly state that the subpoenaing party has the burden of overcoming the three-part test by a clear and specific showing as required by the statute. § 90.5015(2), Fla. Stat. (2023). The motion should conclude by stating that the requisite showing has not been made and should request that the court quash the subpoena, or in the alternative, issue a protective order.
Comparee. Additional material
As stated above, an affidavit from the recipient of the subpoena establishing his or her entitlement to the privilege sometimes is helpful when it is not clear from the recipient’s title or place of employment that he or she is a professional journalist.
Also, as most evidentiary hearings on motions to quash occur in the circuit courts, many relevant judicial opinions are either unpublished or published only in unofficial reporters such as the Media Law Reporter. When unpublished or Media Law Reporter cases are cited in support of a motion, copies of these cases should be provided to the court and to opposing counsel.
Compare4. In camera review
Comparea. Necessity
The law does not require a court to conduct an in camera review of materials or examination of the reporter, and the shield law does not contemplate in camera review as an option. The judge, in his or her discretion, may require an in camera review of the journalist’s materials. See Kidwell v. State, 730 So. 2d 670, 671 (Fla. 1998). In camera review, however, should be not be the option of first resort, as even in camera inspection impinges upon the privilege by requiring the journalist to turn over information and materials.
Compareb. Consequences of consent
Florida courts have not addressed a situation in which the reporter or publisher consents to in camera review and whether a stay pending appeal is then automatic in the event of an adverse ruling.
Comparec. Consequences of refusing
If the reporter or publisher does not consent to in camera review ordered by the judge, the judge could hold the reporter or publisher in contempt.
Compare5. Briefing schedule
The Florida Rules of Civil Procedure and Rules of Criminal Procedure do not establish a briefing schedule. A journalist wishing to challenge a subpoena generally must file a motion to quash at or before the time of compliance. The reporter also may wish to file a supporting memorandum of law and may do so at any time before the hearing on the motion. The opposing side may file a response to the motion or memo at any time before or at the hearing. Some courts and judges have their own rules concerning the time for filing of memoranda and other materials, so it is advisable to check for specific requirements with the judge assigned to the underlying case.
Compare6. Amicus briefs
Florida courts at all levels accept amicus briefs. Potential amici in reporter’s privilege cases include the Florida First Amendment Foundation (317 E. Park Ave., Suite 101, Tallahassee, Florida 32301; Phone: 800-337-3518 or 850-222-3518) and the Florida Press Association (336 E. College Ave., Suite 201, Tallahassee, FL 32308; Phone: 850-283-5255).
CompareVI. Substantive law on contesting subpoenas
CompareA. Burden, standard of proof
Once the journalist establishes that he or she is covered by the privilege, the burden shifts to the subpoenaing party to make a clear and specific showing that the privilege has been overcome. See Fla. Stat. § 90.5015(2); McCarty v. Bankers Insurance Co., 195 F.R.D. 39 (N.D. Fla. 1998) (stating that “the burden rests with Plaintiff McCarty (the party seeking to overcome the qualified privilege) to establish each of the three factors by clear and convincing evidence”). If the privilege has been overcome, then the judge must limit the compelled disclosure to those items of information for which the clear and specific showing has been made and must support the decision with clear and specific findings made after a hearing. See Fla. Stat. § 90.5015(3).
CompareB. Elements
To overcome the privilege, the subpoenaing party must make a clear and specific showing that:
(a) the information is relevant and material to unresolved issues in the case;
(b) the information cannot be obtained from alternative sources; and
(c) a compelling interest exists in favor of disclosure.
§ 90.5015(2), Fla. Stat. (2023) (emphasis added); State v. Davis, 720 So. 2d 220 (Fla. 1998). It is important to recognize that if the subpoenaing party fails to make a clear and specific showing as to any of the three prongs of the test, the journalist’s privilege will not be overcome.
Compare1. Relevance of material to case at bar
The information must be relevant and material to unresolved issues that have been raised in the case. § 90.5015(2)(a), Fla. Stat. (2023). A mere possibility that the reporter might have information that might be helpful to the subpoenaing party does not meet the standard of a clear and specific showing on the issue of relevance.
Compare2. Material unavailable from other sources
In order to overcome the privilege, the subpoenaing party must make a clear and specific showing that the information “cannot be obtained from alternative sources.” § 90.5015(2)(b), Fla. Stat. (2023).
Comparea. How exhaustive must search be?
Available sources generally must be deposed or at least interviewed before the alternative sources prong of the privilege has been overcome, even if that involves hundreds of depositions or interviews. See, e.g., Overstreet v. Neighbor, 9 Media L. Rep. 2255, 2256 (Fla. 13th Cir. Ct. Sept. 13, 1983) (requiring exhaustion of at least 117 individuals to defeat common law privilege); McCarty v. Bankers Ins. Co., 195 F.R.D. 39 (N.D. Fla. 1998) (exhaustion of all alternative sources must be shown). Simply put, when possible alternative witnesses exist, compelled disclosure of news gathering information is inappropriate. See, e.g., Smoliak v. Greyhound Lines, Inc., 33 Media L. Rep. 2452 (N.D. Fla. 2005) (applying Florida law); Green v. Off. of the Sheriff’s Off., Consol. City of Jacksonville, 31 Media L. Rep. 1756 (M.D. Fla. 2002) (applying Florida law); Muhammad v. State, 132 So. 3d 176, 190 (Fla. 2013); State v. Davis, 720 So. 2d 220, 228 (Fla. 1998); WTVJ-NBC 6 v. Shehadeh, 56 So. 3d 104 (Fla. 3d DCA 2011); Gadsden Cty. Times, Inc. v. Horne, 426 So. 2d 1234 (Fla. 1st DCA 1983); State v. Trepal, 24 Media L. Rep. 2595, 2598 (Fla. 10th Cir. Ct. Aug. 19, 1996). When substantially similar information can be obtained from a source other than the journalist, the journalist’s privilege will not be overcome. See, e.g., State v. Smith, 29 Media L. Rep. 2438, 2439 (Fla. 12th Cir. Ct. March 16, 2001) (substantially similar information in letter in court file precluded finding that information was not available from alternative sources).
Compareb. What proof of search does a subpoenaing party need to make?
The party seeking to overcome the privilege must show that the journalist’s information cannot be obtained from alternative sources. § 90.5015(2)(b), Fla. Stat. (2023). The alternative sources prong of Section 90.5015 requires exhaustion of all alternative sources of information. This is an evidentiary burden -- the subpoenaing party must provide clear and specific proof of exhaustion. State v. Trepal, 24 Media L. Rep. 2595, 2598 (Fla. 10th Cir. Ct. Aug. 19, 1996). The subpoenaing party must prove not only that he or she has explored all alternative sources but also that every one of those sources is not available to testify concerning the information in the journalist’s possession.
In arguing motions to quash subpoenas, particularly in criminal cases, it is important to recognize that journalists are not private investigators at the disposal of the state and litigants. The journalist’s privilege is not to be used to resolve problems of proof. Thus, when alternative sources exist that are unreliable, the information is deemed obtainable from those sources, and the journalist’s privilege is not overcome. See Fla. v. Abreu, 16 Media L. Rep. 2493, 2494 (Fla. Cir. Ct. 1989) (the credibility of a witness is for the finder of fact to determine at an appropriate time and is not relevant to whether the witness is an alternative source within the meaning of the journalist’s privilege); see also Kidwell v. State, 730 So. 2d 670, 671 (Fla. 1998) (“extreme care must be taken to ensure that the media is [sic] not used as an investigative arm of the government”); State v. Davis, 720 So. 2d 220, 224 (Fla. 1998) (“the test was designed to prevent the government from using reporters as an investigatory arm of the government”). The credibility of the available alternative sources is for the finder of fact to determine at the proper time and has no bearing on whether such alternative sources are “available” within the meaning of the privilege. See Abreu, 16 Media L. Rep. at 2494 (whether testimony of other eyewitnesses is trustworthy is not relevant to the alternative sources inquiry of the journalist’s privilege); Tribune Co. v. Green, 440 So. 2d 484, 486 (Fla. 2d DCA 1983) (“[A]ny person who can provide the same information as [the journalist] is an alternative source” and “It is inconceivable that [the journalist] could add anything more to the testimony of the [ ] ‘first hand players’”). “The test is simply whether other sources for the same information are available.” Abreu, 16 Media L. Rep. at 2494.
Comparec. Source is an eyewitness to a crime
The test for overcoming the journalist’s privilege in Florida is not altered when the source is an eyewitness to a crime. Whether the privilege is overcome will be determined by whether the information is relevant and material and cannot be obtained from alternative sources, and whether a compelling need exists in favor of disclosure. Where the source is known, the argument against overcoming the privilege is strongest because the source himself is an alternative source. Even when the source is unknown, if the subpoenaing party cannot demonstrate by a clear and specific showing that all other possible sources of the information have been exhausted, then the privilege likewise will not be overcome.
Compare3. Balancing of interests
The reporter’s privilege, unlike most other privileges, does not depend upon whether the information is private. See Ulrich v. Cost Dental Serv., 739 So. 2d 142, 143 (Fla. 5th DCA 1999) (citing State v. Davis, 720 So. 2d 220 (Fla. 1998); Morris Communications Corp. v. Frangie, 720 So. 2d 230 (Fla. 1998)). Although a reporter might be obliged to protect the identity of a source, the privilege belongs to the reporter. By protecting the reporter, the privilege protects the press’s access to information. Where the press’s access to information is protected, it follows that the public’s access to that information is protected. Thus, courts often must balance the interests of the public -- that is, their interest in obtaining information -- with the interests of the subpoenaing party in requiring disclosure. In criminal cases, often First Amendment rights must be balanced against constitutional rights protecting the criminally accused.
In Florida, courts balance those interests by requiring the subpoenaing party to make a clear and specific showing that a compelling interest exists for requiring disclosure of the information. See § 90.5015(2)(c), Fla. Stat. (2023). A compelling need exists only if non-production “will result in a miscarriage of justice or substantially prejudice a party’s ability to present its case.” Redd v. U.S. Sugar Corp., 21 Media L. Rep. 1508, 1509 (Fla. 15th Cir. Ct. May 27, 1993) (applying Florida common law privilege, which is similar to Section 90.5015). See also U.S. v. Thompson, No. 14-20522-CR, 2015 WL 1608462, at *3 (S.D. Fla. April 10, 2015) (citing McCarty v. Bankers Ins. Co., 195 F.R.D. 39 (N.D. Fla. 1998)) (party seeking to compel disclosure “failed to show that it would be actually impossible for him to succeed on his claims without the subpoenaed evidence”); State v. Smith, 29 Med. L. Rptr 2438, 2439 (Fla. Cir. Ct. Mar. 16, 2001) (finding that the State had “demonstrated that it had enough evidence to establish a prima facie case” by filing an Information and therefore did not have a” compelling need to obtain the information to adequately prosecute the crime at issue”). But see Gregory v. Miami-Dade County, No. 13-21350-CIV, 2015 WL 3442008, at *6 & n.7 (S.D. Fla. May 28, 2015) (party seeking to defeat federal common law privilege must show compelling need for reporter’s testimony but is not required to establish that party is unable to prove its claim or defense without journalist’s information) (citing § 90.5015).
A party’s interest in impeaching a witness is not a compelling need. It is within the province of the finder of fact to weigh the credibility of alternative sources, and the journalist’s privilege may not be overcome simply to support or attack the credibility of another witness. See State v. Smith, 29 Media L. Rep. 2438, 2439 (Fla. Cir. Ct. Mar. 16, 2001) (although journalist’s information may be helpful to impeach the defendant, the interest in disclosing the information is not compelling); Fancher v. Lee County Humane Society, Inc., 27 Media L. Rep. 1447, 1447-1448 (Fla. Cir. Ct. Dec. 14, 1998) (verification of the accuracy of a party’s statements as contained in a newspaper article is not a sufficiently compelling need to overcome the privilege); Redd v. U.S. Sugar Corp., 21 Media L. Rep. 1508, 1509 (Fla. 15th Cir. Ct. May 27, 1993) (“the possible use of the information for impeachment of a witness in a civil case is not sufficiently compelling to overcome the news reporter’s qualified testimony privilege”). “[I]mpeachment does not go to the heart of issues before the Court and does not demonstrate a sufficiently compelling need to overcome the reporter’s privilege.” Redd, 21 Media L. Rep. at 1509.
Compare4. Subpoena not overbroad or unduly burdensome
Florida’s shield law specifically directs judges to require disclosure only of that portion of the information for which a clear and specific showing under each prong of the test has been made. § 90.5015(3), Fla. Stat. (2023). Thus, in all cases where the judge rules that the privilege has been overcome, he or she must ensure that only that information which has been supported by the showing is revealed. The judge must support his or her order with clear and specific findings made after a hearing. Id. For an example of a narrowly tailored disclosure order, see Gregory v. Miami-Dade County, No. 13-21350-CIV, 2015 WL 3442008 , at *12 (S.D. Fla. May 28, 2015) (finding privilege only overcome to the extent that the reporter’s testimony could provide verification of certain statements allegedly made by Plaintiff to the reporter, and limiting scope and duration of deposition accordingly).
Compare5. Threat to human life
The privilege does not require the court to weigh whether the matter subpoenaed involves a threat to human life, and this issue has not been addressed in Florida courts.
Compare6. Material is not cumulative
When the information in the journalist’s possession would be cumulative, counsel for the reporter should argue that that information is available from alternative sources and that there is no compelling need for disclosure (i.e., a miscarriage of justice will not result if the journalist is allowed to maintain the secrecy of his or her information or sources).
Compare7. Civil/criminal rules of procedure
Florida Rules of Civil Procedure 1.280 and 1.410 govern objections to subpoenas in civil cases. These rules, in conjunction with Florida Rule of Criminal Procedure 3.361 and 3.220(h), should be used as the basis for objecting to subpoenas in criminal cases.
Compare8. Other elements
The test for overcoming the journalist’s privilege contains only the three-prongs articulated in Section 90.5015(2). That is, the information must be: (1) relevant and material to unresolved issues in the case; (2) unavailable from alternative sources; and (3) supported by a compelling interest requiring disclosure. Prior to the enactment of Section 90.5015, the Eleventh Circuit in United States v. Caporale, 806 F.2d 1487, 1503-04 (11th Cir. 1986), had set forth a three-prong standard for overcoming the federal common law reporter’s privilege. Caporale required that the information sought be (1) highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources. Id. Courts have interpreted the “compelling interest” and “necessary to the proper presentation of the case” prongs to be substantially the same, thus, there is no difference between the federal common law and Florida statutory standards. See McCarty v. Bankers Insurance Co., 195 F.R.D. 39 (N.D. Fla. 1998) (stating that “application of either the federal common law standard or the newly announced Florida standard will yield the same result, as the factors of each are virtually indistinguishable”).
CompareC. Waiver or limits to testimony
Compare1. Is the privilege waivable?
Section 90.5015, Florida Statutes expressly states that “[a] professional journalist does not waive the privilege by publishing or broadcasting information.” § 90.5015(4), Fla. Stat. (2016) (emphasis added). Indeed, the legislative history of the statute suggests that both the Florida House of Representatives and Florida Senate intended that the privilege be protected against waiver. See House Bill Analysis (“the privilege created by [the journalist’s privilege statute] would not be waived by a journalist’s full or partial disclosure of the information sought”); Senate Staff Analysis (“disclosure of the information as the result of a successful challenge to the privilege does not constitute a waiver of the privilege”). The statute does not address whether other disclosures may constitute a waiver.
The Fifth District Court of Appeal of Florida has twice, within the same few months, addressed the issue of waiver of Florida’s journalists’ privilege. In Ulrich v. Coast Dental Serv., 739 So. 2d 142 (Fla. 5th DCA 1999), the court distinguished the journalist’s privilege from others based on the fact that the reporter’s privilege is not conditioned upon a prior agreement of confidentiality. Id. at 143-144. Thus, the journalist’s privilege protects both confidential and non-confidential information. The court held that this logically leads to the conclusion that disclosure of the information to a third party does not constitute a waiver. See id. at 144. Accordingly, a journalist does not waive the privilege by speaking with the parties to the underlying proceeding or to their legal representatives. Wilensky v. Gooding, 31 Media L. Rep. 1641 (Fla. 7th Cir. Ct. Apr. 7, 2003); Seo v. Kim, 30 Media L. Rep. 1799 (Fla. Cir. Ct. Apr. 9, 2002).
One month after Ulrich, the Fifth District found a waiver of the privilege in a case where the journalist was a party to the underlying lawsuit. In News-Journal Corp. v. Carson, 741 So. 2d 572 (Fla. 5th DCA 1999), the plaintiff sued for libel a journalist and the newspaper for which the journalist worked. The newspaper attached an unemployment form to an affidavit placed in the public court file. The court held that the privilege was waived as to the contents of the form by the act of filing. See id. at 574. Thus, disclosure of the information in the public records may constitute a waiver of the privilege as to that information.
The privilege has been held applicable to the identities of confidential sources whose names were inadvertently disclosed. TheStreet.com, Inc. v. Carroll, 20 So.3d 947, 949-50 (Fla. 4th DCA 2009).
Compare2. Elements of waiver
Comparea. Disclosure of confidential source's name
The statute expressly provides a privilege not to disclose information “including the identity of any source.” § 90.5015(2), Fla. Stat. (2023) (emphasis added). The disclosure of information by publication does not waive the journalist’s privilege. § 90.5015(4), Fla. Stat. (2023). Thus, the privilege has been held applicable to the identities of confidential sources even where their names were inadvertently disclosed. TheStreet.com, Inc. v. Carroll, 20 So.3d 947, 949-50 (Fla. 4th DCA 2009).
Compareb. Disclosure of non-confidential source's name
The privilege applies to the disclosure of information “including the identity of any source.” § 90.5015(2), Fla. Stat. (2023) (emphasis added). The disclosure of information by publication does not waive the journalist’s privilege. § 90.5015(4), Fla. Stat. (2023).
Comparec. Partial disclosure of information
The statute expressly provides that a journalist “does not waive the privilege by publishing or broadcasting information.” § 90.5015(4), Fla. Stat. (2023). However, one court has held that if a journalist files information in the public records, the privilege is waived as to the information filed in the public records. See News-Journal v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999).
Compared. Other elements
Compare3. Agreement to partially testify act as waiver?
If the reporter testifies in court concerning privileged information, the privilege likely is deemed waived as to the information revealed. See News-Journal v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999) (journalist waived privilege by providing affidavit).
CompareVII. What constitutes compliance?
CompareA. Newspaper articles
Newspapers are self-authenticating in Florida state courts under the provisions of the Florida Evidence Code. See § 90.902(6), Fla. Stat. (2023). Thus, a reporter is not required to testify as to the authenticity of a newspaper article before it can be admitted into evidence.
CompareB. Broadcast materials
Section 90.5015, Florida Statutes, provides for authentication via journalist’s affidavit of certain information. Specifically, Section 90.5015(6) provides:
Photographs, diagrams, video recordings, audio recordings, computer records, or other business records maintained, disclosed, provided or produced by a professional journalist, or by the employer of principal of a professional journalist, may be authenticated for admission in evidence upon a showing, by affidavit of the professional journalist, or other individual with personal knowledge, that the photograph, diagram, video recording, audio recording, computer record, or other business record is a true and accurate copy of the original, and that the copy truly and accurately reflects the observations and facts contained therein.
§ 90.5015(6), Fla. Stat. (2023). Thus, even where the privilege has been overcome, a journalist may avoid appearance in court by filing an affidavit that establishes both that the document or recording is what it purports to be and that the information contained within the document or recording accurately reflects the observations of the professional journalist. In short, it is an affidavit of authenticity andaccuracy, though the court does have the discretion to refuse to admit the evidence. See§ 90.5015(7), Fla. Stat. (2023).
CompareC. Testimony vs. affidavits
Florida’s shield law provides for authentication of documents and other materials disclosed by the journalist by affidavit. See § 90.5015(6), Fla. Stat. (2023). Where the reporter’s testimony is sought, however, it is unclear whether an affidavit would be a sufficient substitute for the in-court (and subject to cross examination) testimony of a journalist.
CompareD. Non-compliance remedies
Compare1. Civil contempt
Comparea. Fines
No published Florida appellate decision addresses whether a journalist might face a civil contempt fine for non-compliance with a subpoena. However, in theory contempt is an available remedy for failure to comply with the requirements of a subpoena once a motion to quash has been denied. The reviewing court will look to the merits of the underlying motion to quash in deciding whether to uphold the contempt citation. See, e.g., Tribune Co. v. Huffstetler, 489 So. 2d 722, 724 (Fla. 1986) (quashing subpoena); Morgan v. State, 337 So. 2d 951, 956 (Fla. 1976) (overturning 90-day jail sentence); In re Mary Jo Tierney, 328 So. 2d 40, 47 (Fla. 4th DCA 1976) (vacating contempt sentence because of expiration of term of grand jury before which journalist refused to answer questions).
Compareb. Jail
The jailing of a journalist in Florida for civil contempt in defying a subpoena has never been upheld on appeal. However, in theory contempt is an available remedy for failure to comply with the requirements of a subpoena once a motion to quash has been denied. The reviewing court will look to the merits of the underlying motion to quash in deciding whether to uphold the contempt citation. See, e.g., Tribune Co. v. Huffstetler, 489 So. 2d 722, 724 (Fla. 1986) (quashing subpoena); Morgan v. State, 337 So. 2d 951, 956 (Fla. 1976); (overturning 90-day jail sentence); In re Mary Jo Tierney, 328 So. 2d 40, 47 (Fla. 4th DCA 1976) (vacating contempt sentence due to expiration of term of grand jury before which journalist refused to answer questions).
Compare2. Criminal contempt
Criminal contempt also theoretically is an available remedy for noncompliance with a subpoena once the journalist’s privilege has been unsuccessfully asserted, though the issue has not been addressed by a Florida court since the shield law was enacted in 1998. In 1996, a reporter was found guilty of indirect criminal contempt, fined $500, and sentenced to 70 days in jail. See Kidwell v. McCutcheon, 962 F. Supp. 1477, 1478 (S.D. Fla. 1996). The journalist had refused to answer questions at a deposition at which he was subpoenaed to testify. A circuit court judge had issued the contempt order but had stated that the journalist could purge himself of the contempt by answering the subpoenaing party’s questions within six days. See id. The federal district court, noting the uncertainty in Florida law at the time, stayed imposition of the jail sentence until state court remedies could be exhausted. See id. at 1481. In 1990, another journalist was cited for criminal contempt and sentenced to thirty days in jail for refusing to identify the source that provided a confidential court order. See In re Investigation: Florida Statute 27.04, Subpoena of Roche v. State, 589 So.2d 978, 980 (Fla. 4th DCA 1991). The criminal contempt citation was upheld on appeal. Id.
Compare3. Other remedies
Florida courts do not appear to have addressed this issue.
CompareVIII. Appealing
CompareA. Timing
Compare1. Interlocutory appeals
A reporter may seek review of the denial of a motion to quash without waiting to be held in contempt for failing to comply with the subpoena. Review should be sought by a petition for writ of certiorari. TheStreet.com, Inc. v. Carroll, 20 So. 3d 947, 949 (Fla. 4th DCA 2009). A petition for certiorari must be filed within thirty (30) days of the rendering of the order. See Fla. R. App. P. 9.100(c).
Compare2. Expedited appeals
A journalist may request that the appeal be expedited. In the case of the news media, courts often will grant review on an expedited basis. If appeal is taken on an expedited basis, the court typically will alter the normal briefing schedule by an order establishing the response times to apply to the expedited proceeding.
CompareB. Procedure
Compare1. To whom is the appeal made?
An order from a county court judge must be appealed to the circuit court. An order from the circuit court must be appealed to the district court of appeal. See Fla. R. App. P. 9.030.
Compare2. Stays pending appeal
A journalist seeking to stay an order compelling the disclosure of privileged information pending appellate review must first seek a stay from the court issuing the order, and that court has the discretion to grant, modify, or deny relief. See Fla. R. App. P. 9.310(a). If the court issuing the order denies a stay, the journalist may seek a stay in the appellate court. See, e.g., WTVJ-NBC 6 v. Shehadeh, 56 So.3d 104, 105 n.1 (Fla. 3d DCA 2011) (district court of appeal stayed trial court’s order compelling disclosure of journalist’s information).
Compare3. Nature of appeal
Certiorari lies to review trial court orders compelling production of documents and information claimed to be protected under the qualified journalist’s privilege. TheStreet.com, Inc. v. Carroll, 20 So. 3d 947, 949 (Fla. 4th DCA 2009). A petition for certiorari must be filed within thirty (30) days of the rendering of the order. See Fla. R. App. P. 9.100(c).
Compare4. Standard of review
Discretionary review by certiorari is available to correct a trial court’s order that constitutes a “departure from the essential requirements of law, resulting in ‘cat out of the bag’ irreparable harm.” WTVJ-NBC 6 v. Shehadeh, 56 So. 3d 104, 106 (Fla. 3d DCA 2011) (certiorari granted; order granting motion to compel quashed). See also CNN v. Black, 308 So. 3d 997, 1000 (Fla. 4th DCA 2020).
Compare5. Addressing mootness questions
In a case in which a subpoena of a journalist had been withdrawn before the journalist gave testimony, Florida’s Fifth District Court of Appeal denied a petition for certiorari as moot. See Ocala Star Banner Corp. v. State, 721 So. 2d 838, 838 (Fla. 5th DCA 1998). But the same court previously granted review in a case in which a reporter covering a hearing had been ordered to take the stand and to testify. See Times Publ’g Co. v. Burke, 375 So. 2d 297, 298 (Fla. 5th DCA 1979). In that case, the court cited the substantial public interest in the issue and the fact that the controversy was capable of repetition yet evading review. Id.
Compare6. Relief
The appellate court should be asked to quash the order compelling testimony or disclosure. See, e.g., Morgan v. State, 337 So. 2d 951 (Fla. 1976); Times Publ’g Co. v. Burke, 375 So. 2d 297, 299 (Fla. 5th DCA 1979). The appellate court also may overturn a contempt conviction. See, e.g., Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986); Morgan v. State, 337 So. 2d 951 (Fla. 1976).
CompareIX. Other issues
CompareA. Newsroom searches
The Federal Privacy Protection Act (42 U.S.C. 2000aa), which limits searches of newsrooms, has not been addressed in Florida state courts, and no similar provisions exist under state law.
CompareB. Separation orders
The issue of sequestering a reporter who was both a witness and working to cover the trial has come up at least twice in Florida courts. In Gore Newspaper Co. v. Reasbeck, 363 So. 2d 609 (Fla. 4th DCA 1978), an attorney for the defendant in a criminal case asked the court to place several news reporters under oath and exclude them from the courtroom under the rule allowing for sequestration of witnesses. Id. at 610. The trial judge complied. On appeal, the Fourth District Court of Appeal held that there was not the slightest indication that the reporters were likely to be called as witnesses in the trial and that the entire “charade” was simply a “ruse” by counsel to exclude the press from the courtroom during the suppression hearing. See id. The court held that the grant of sequestration by the trial judge was improper. See id. The purpose of the rule allowing sequestration of witnesses is to prevent the testimony of one witness from influencing the testimony of another. Where the reporters never were intended to be witnesses in the case, and the sequestration rule was invoked merely to keep the proceedings from public view, it was error to invoke the rule against the reporters. See id. at 611.
More recently, in Palm Beach Newspapers, LLC v. Colin, 199 So. 3d 556, 558 (Fla. 4th DCA 2016), an appeals court held that a reporter has a due process right to reasonable notice that he or she might be called as a witness, so that the reporter has a reasonable opportunity to assert the reporter’s privilege. The reporter in that case, however, was deemed to have waived the privilege, because he opted to testify without waiting for his attorneys. Id.
CompareC. Third-party subpoenas
Florida courts do not appear to have addressed whether any privilege applies to records third parties might have (e.g., telephone records) that relate to newsgathering.
CompareD. The source's rights and interests
Recently, a U.S. District Court in Florida, citing decisions from other states, held that a source did not have standing to invoke the reporter’s privilege, limiting the privilege to journalists. Carroll v. TheStreet.com, Inc., No. 11-CV-81173, 2014 WL 5474048, at *9, *9 n. 6 (S.D. Fla. Apr. 10, 2014).
Compare