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George D. Gabel is a Partner in ourJacksonvilleoffice
A Jacksonville, Fla., judge has ruled that the state's
journalist's shield law protects a newspaper against a
prosecution subpoena for a letter sent by a woman pending trial on
a manslaughter charge.
Circuit Court Judge Elizabeth Senterfitt quashed the state
attorney's subpoena to The Florida Times-Union on the basis of
the qualified journalist's privilege. The subpoena sought the
production of a letter written by Biannela Susana, the jailed
mother of 12-year-old Cristian Fernandez, who was charged with
murder in the death of his 2-year-old brother. The state also
charged Susana with aggravated manslaughter in the death.
Susana sent the letter from jail to a Times-Union reporter. The
newspaper incorporated the letter into a news article appearing in
the newspaper on September 1, 2011, which included quotes of
various statements from the letter.
The Times-Union moved to quash the subpoena, arguing that the
journalist's privilege, codified at Section 90.5015, Florida
Statutes, protected the letter. Under the statute, "a
professional journalist has a qualified privilege not to be a
witness concerning, and not to disclose information, including the
identity of any source, that the professional journalist has
obtained while actively gathering news." Additionally, the
Times-Union alleged that the letter was also privileged pursuant to
Section 33-210.103(1) of the Florida Administrative Code, which
provides that inmate mail to and from the news media is
privileged.
Judge Senterfitt heard arguments and ordered the newspaper to
submit the letter to her. After in camera review, the court found
that the state had not met its burden under the shield law.
Specifically, the party attempting to subpoena information must
show by clear and specific evidence that: (1) the information
sought is relevant to the issues in the case; (2) the information
cannot be obtained by means less destructive of First Amendment
rights; and (3) a compelling interest exists in disclosure
sufficient to override the interests protected by the
privilege.
Judge Senterfitt also agreed with the Times-Union that the
letter was privileged under the Florida Administrative Code, which
appears to be the first time such a ruling was made in the context
of a journalist's privilege case.
Holland & Knight represented The Florida Times-Union in this
matter.
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