Blog: Fla. appeals court nixes prior restraint on writer

Tuesday, March 30, 2010

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The late, great lawyer Alexander Bickel once told the U.S. Supreme Court in oral argument: “a criminal statute chills; prior restraint freezes.” A Florida appeals court agreed March 24 with this time-honored sentiment and reversed a trial court order limiting distribution of information about the children of Jake and Kelley Branam, a young couple murdered on their Joe Cool expedition boat in September 2007.

The boating deaths attracted international press attention. The two men responsible are now serving five consecutive life sentences. But legal complications did not end with the criminal part of the horrific incident. After the Branams’ disappearance, a court awarded temporary custody of the children to an aunt, with a provision allowing other relatives to visit.

The aunt asked the court to clarify her custodial rights and protect the children’s privacy. During a resulting hearing, Maria Gagliardo, the companion of the children’s great-grandfather Joe Harry Branam Sr., told the trial court she intended to write a book about her life with the children and the parents’ disappearance. The aunt asked the court to limit distribution of information about the children to protect their privacy rights.

The trial judge sided with the aunt and issued an order restricting family members and Gagliardo from distributing photographs of the children, information about the children, and information about what had happened to them or to their family.

The writer appealed, rightfully contending that such a broad order was a quintessential prior restraint on expression. A prior restraint is any government order, policy, law or regulation that prevents the dissemination of expression. For example, a judicial order prohibiting the press from reporting about a trial — often called a gag order — is a prior restraint. In the case in which Bickel spoke, New York Times Co. v. United States (1971), the government tried to suppress publication of the Pentagon Papers.

Chief Justice Warren Burger wrote in Nebraska Press Ass’n v. Stuart (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” The Florida appeals court echoed this sentiment, adding that “prior restraints are presumed unconstitutional” and that only in “exceptional cases” can a court issue a prior restraint.

“We determine that this is not an ‘exceptional case’ that triggers infringement on our precious First Amendment rights,” Judge David M. Gersten wrote for the 3rd District Court of Appeals, in Gagliardo v. Branam Children. “There were no exceptional circumstances present to justify censoring the writer.”

The appeals court vacated the part of the trial court’s order restricting the writer’s ability to distribute “information about the children or about what has happened to them or to their family.”

This decision comports with fundamental First Amendment principles. If such an order were upheld, the public could never learn about many high-profile crimes and their impact on families. The urge to protect children’s privacy is understandable, but it should not overwhelm what the appeals court called “our precious First Amendment rights.”

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