In a criminal case arising from the secret recording of a private conversation, Florida prosecutors issued a subpoena to compel a news reporter to testify in a case against a former aide to Lt. Gov. Jennifer Carroll. The reporter moved to quash the subpoena, based on the protections of the journalist's privilege. In its decision in State v. Cole, the Tallahassee court ruled in favor of the reporter, holding that "a reporter's information from a recording, including the delivery of that recording is protected by the First Amendment as 'speech.'"
Prosecutors allege that a staffer to Lt. Gov. Carroll, Carletha Cole, secretly recorded a conversation that she had with Carroll's chief of staff in September 2011. Cole was concerned that Carroll's office had become so dysfunctional that it threatened the ability of Gov. Rick Scott to run the state. Cole shared her views in an interview with Matt Dixon, a reporter from The Florida Times-Union. Hours after Dixon posted his story, Cole was fired.
Three days later, the Times-Union posted a recorded conversation between Cole and the chief of staff. In the recording, the chief of staff criticized the governor for "not leading" and remarked that the governor's staff was afraid of Carroll. The posting prompted an investigation by the Florida Department of Law Enforcement. Ultimately, Cole was charged with the crime of transmitting an unauthorized recording.
In the legal skirmishes that followed, prosecutors issued a subpoena seeking to compel the testimony of Matt Dixon. In Florida, reporters are protected by a qualified privilege not to be a witness concerning information obtained while actively gathering news. The state argued that the privilege was inapplicable, based on the crime-fraud exception. Under that exception, the privilege does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. The court rejected this argument, finding that the delivery of a recording was analogous to the delivery of a handbill or pamphlet, and was thus "speech" entitled to First Amendment protections.
The court also found that the state had failed to overcome the journalist's privilege in two respects. First, the state had failed to exhaust alternative sources for the information, such as the computer that was used to transmit the unauthorized recording and Cole's Internet service provider. Second, the state failed to demonstrate a compelling interest in the disclosure of the information. In analyzing this element, the court weighed the freedom of the press against the need for the information sought, finding that First Amendment protections weigh heavily in this context.
Holland & Knight represented the Times-Union in this matter.