Judge Jack Schramm Cox, a Florida state court judge in Palm Beach, has ordered the Palm Beach Post to remove transcripts from an October article documenting a convicted murderer's habit of acting as a 'jailhouse lawyer' to solicit confessions from fellow inmates, which he promptly turns over to prosecutors and law enforcement. The order — which the Post complied with — runs afoul of the First Amendment, an obstacle that Judge Cox's order passes over without so much as a mention.
Unfortunately, I am unable to locate a copy of the full transcripts themselves, which the Post has removed from its website. A Google cache of the article, before the court issued its order, reveals the two paragraphs that the Post removed because they included quotations from the transcripts:
“I’m so important to these people,” he crowed in a recorded jail conversation with his daughter last year. “I’m the only person in the United States’ history that could ever provide testimony that could close over 60 murder cases, you hear me? I know a lot, sweetie. I’m gonna sit down and write a book about all these different murders and what happened and how they happened. Cause I know the law real good. I’m real sharp with the law.”
“I done worked out a deal to reduce my sentence and for me to come home, you understand me?” he told his daughter in another conversation recorded from the county jail in November.
But where, oh where, did these transcripts come from? Surely, the Post's First Amendment rights are surrendered because it engaged in some unlawful act?
The court's order suggests — without directly saying as much or providing any evidence in support — that the Post may have acquired these transcripts as a result of the grapevine:
"The Palm Beach Post [indicated] they were in possession of the recorded calls and that it had posted the transcripts of these recordings on its website[.] The memorandum indicates that copies of the recorded calls have been circulated amongst certain members of the legal community. It is uncertain to this Court who distributed that information. […] It is of some note that the Palm Beach County Sheriff's Office nor the Office of the Public Defender attended the hearing.
How the Office of the Public Defender came in to possession of the recorded calls […] is of great concern to this Court. Mr. Cobia [the informant whose calls were recorded] argues that they were not provided to [his defense attorneys] as a part of pretrial discovery and were not disclosed by [the Palm Beach Sheriff's Office] as a public record."
The court then answers its own question in the wind:
"The calls appear to have become a part of the court record as a result of Ms. Ramsey, counsel for Smith, filing them in the court file on October 15, 2015."
Indeed, the Post itself has noted that the transcripts were part of the public record. (Smith is the defendant who filed the transcripts with the court; Cobia, the informant, is expected to testify against Smith.)
Nevertheless, the court's focus is on the point of origin, concluding that only the government could have recorded the calls. Out of concern for the privacy of the jailhouse snitch — who acted as a jailhouse 'lawyer' to gain the confidence of other residents of the jail in order to betray their privacy interests, however limited — the court found this invasion sufficient to compel a newspaper to stop publishing what's already been published.
But none of this matters, at least as far as the Post's publication is concerned. The Post could have acquired the recordings or transcripts from a court clerk, a defense attorney, the sheriff's office, or as a result of selling their own souls to a questionable character at a highway interchange in Rosedale, Mississippi. Where a media outlet obtains information lawfully — even if it knew that their source obtained it unlawfully — the First Amendment protects the media outlet's right to publish that information. Nor does an individual's privacy interest override a newspaper's right to publish truthful information included in a court record. If a rape victim's privacy interest is insufficient to vitiate a media outlet's First Amendment rights, the privacy interest of a jailhouse informant, speaking on a phone call he knew would be recorded and could be used against him, is underwhelming as a justification.
It may well be that law enforcement betrayed Cobia as a confidante, deterring others from similarly reporting on what their fellow detainees have told them. It may well be that even were Cobia not an informant, Florida's authorities invaded his privacy. But the solution is not to prevent a newspaper from substantiating its reporting, which reveals the unreliable and self-interested nature of informant testimony.
The Post is appealing the ruling.