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).

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.

Marshall notes truthful information, lawfully obtained

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.

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.

Holding said to be limited

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.”

Justice Byron R. White, joined by Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, dissented, taking issue with the majority opinion’s “myopic” view of Florida law.

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.

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