In Florida Star v. B.J.F., 491 U.S. 524 (1989), the Supreme Court held that the First Amendment precluded a newspaper from being held civilly liable under state tort law for publishing the name of a rape victim. The decision was similar to that in Cox Broadcasting Corp. v. Cohn (1975).
Newspaper violated state law when it published name of a rape victim
The Florida Star published a rape victim’s full name in the “Police Reports” section of its Oct. 24, 1983, edition. In doing so, the newspaper violated both its own internal policy and a Florida law that forbade the dissemination of a sexual assault victim’s identity through “an instrument of mass communication.”
B.J.F., the woman whose identity was disseminated, won a $75,000 jury award over the newspaper’s defense that a judgment against it for publishing truthful, lawfully obtained information on a newsworthy event violated the First Amendment. B.J.F. prevailed at the trial and appellate levels, and the Florida Supreme Court denied review. The U.S. Supreme Court reversed in a 6-3 vote.
Court said newspaper could not be punished under the First Amendment
In the opinion for the Court, Justice Thurgood Marshall wrote that without a “state interest of the highest order,” the newspaper could not be punished for the publication of lawfully obtained truthful information, a principle first set forth in Smith v. Daily Mail Publishing Co. (1979).
There, the Court held that the First Amendment protected two newspapers from indictment for publishing, in violation of state law, the name of a juvenile offender when the newspapers obtained the name from witnesses and state officials. Applying this principle, the Court found that, because the newspaper had obtained B.J.F.’s name from a police report left in the pressroom of the Sheriff ’s Department, the truthful information on a newsworthy event had been obtained lawfully.
Court said law was underinclusive and unfair
The Court did not consider protection of a rape victim’s identity to be a “state interest of the highest order,” and it found the statute that the newspaper violated to be underinclusive because it punished instruments of mass communication — but no other entity — for disseminating a rape victim’s identity.
It also questioned the fairness of the strict liability standard of the Florida law for disclosure of a victim’s identity and expressed concern that affirming the judgment would beget media self-censorship.
Marshall stressed that the holding was limited, leaving open the possibility that a state interest could be identified to meet the “highest order” threshold, thereby subjecting a newspaper to a “narrowly tailored” punishment for publishing truthful information.
Justice Antonin Scalia concurred, asserting that no statute that imposes on the media a greater obligation than it imposes on society as a whole could address a state interest of the “highest order.”
Dissenters argued for broader analysis
They argued for a broader analysis, with more emphasis on Florida tort law instead of simply looking to the statute deemed underinclusive by the Court. Justice White also disputed that the newspaper obtained B.J.F.’s name lawfully because signs in the press room of the Sheriff’s Department publicized the ban on publication of rape victims’ names, and the newspaper reporter admitted that she knew dissemination was prohibited.
This article was written by James T. Gibson and published in 2009 when Mr. Gibson was staff counsel for the Baptist Joint Committee for Religious Liberty. Gibson is now an assistant federal public defender in Birmingham.