[*] The author wishes to thank his loving family. He also thanks Professors Steve Gey and Mark Seidenfeld, who taught him about the First Amendment and media law respectively, and Professor Meg Baldwin, who taught him how to analyze a court opinion. Return to text.

[1] A Law Review article was one of the most important incitements to the conversion of privacy as a social value into privacy as a legal right. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890); William L. Prosser, Privacy [A Legal Analysis], in PHILOSOPHICAL DIMENSIONS OF PRIVACY: AN ANTHOLOGY 104, 104-05 (Ferdinand D. Schoeman ed., 1984) [hereinafter Prosser, Privacy].

Currently, the law recognizes two distinct forms of privacy. One form is considered constitutional privacy, even though the Constitution "does not explicitly mention any right of privacy." Roe v. Wade, 410 U.S. 113, 152 (1973). This form of privacy protects an individual's freedom to make choices regarding personal, intimate aspects of life such as education or pregnancy. See id. at 152-53. The second form of privacy stems from state law and protects individuals from unwanted, unreasonable publicity. See e.g., Deborah W. Denno, Perspectives on Disclosing Rape Victims' Names, 61 FORDHAM L. REV. 1113, 1115-16 n.20 (1993) (explaining that "nearly every state recognizes, through common law or statute, some kind of right that individuals have to control the public use of personal information about them"); Prosser, Privacy, supra, at 106-07 (listing states whose courts recognized privacy as a legal right as of 1960).

At least one commentator has argued that the type of privacy that theoretically protects citizens against media disclosures can also be traced to the First Amendment itself. See James R. Beattie, Jr., Note, Privacy in the First Amendment: Private Facts and the Zone of Deliberation, 44 VAND. L. REV. 899, 901 (1991). Even if it cannot be traced to the First Amendment, this form of privacy is at least recognized by the Constitution of the State of Florida. See FLA. CONST. art I, § 23 (guaranteeing "[e]very natural person . . . the right to be let alone"). Return to text.

[2] See generally Prosser, Privacy, supra note 1, at 109-13; Denis McQuail, The Mass Media and Privacy, in PRIVACY 177, 180-82 (John B. Young ed., 1978). Return to text.

[3] Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975). Return to text.

[4] Clemens P. Work, Whose Privacy?, 55 MONT. L. REV. 209, 234 (1994); id. at 210 (summarizing results of several polls that indicated the importance of privacy to Americans); McQuail, supra note 2, at 178-79 (noting survey results that indicated privacy was important to 83% of the population). The United States Supreme Court acknowledged that "the century has experienced a strong tide running in favor of the so-called right of privacy." Cox Broadcasting, 420 U.S. at 488. Return to text.

[5] Work, supra note 4, at 234. However, some surveys have indicated that a majority of the population would sooner protect privacy than protect the press. McQuail, supra note 2, at 178. Return to text.

[6] "Congress shall make no law . . . abridging the freedom of . . . the press." U.S. CONST. amend. I. This prohibition also applies to the states pursuant to the Fourteenth Amendment. E.g., Thornhill v. Alabama, 310 U.S. 88, 95 (1940). Return to text.

[7] Florida Star v. B.J.F., 491 U.S. 524, 550 (1989) (White, J., dissenting); see also Cox Broadcasting, 420 U.S. at 488 (noting continued widespread state recognition of privacy as a legal right); Denno, supra note 1, at 1115-16 n.20. Return to text.

[8] See, e.g., Cox Broadcasting, 420 U.S. at 491 (refusing to decide "whether the State may ever define and protect an area of privacy free from unwanted publicity in the press"); Florida Star, 491 U.S. at 541 (limiting the holding to exclude an interpretation that "truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press"). The Court explains its reluctance by stating: "the future may bring scenarios which prudence counsels our not resolving anticipatorily." Florida Star, 491 U.S. at 532. Return to text.

[9] See Cox Broadcasting, 420 U.S. at 489 (adding that "[t]he face-off is apparent"). Return to text.

[10] See 1911, Fla. Laws ch. 6226, § 1, 195, 195-96 held unconstitutional by State v. Globe Communications Corp., 648 So. 2d 110 (Fla. 1994); infra part III. Return to text.

[11] 1911, Fla. Laws ch. 6226, § 1, 195-96. Return to text.

[12] FLA. STAT. § 794.03 (1995). At the time of publication, the Florida Legislature had not yet officially removed section 794.03 from the statute books. Return to text.

[13] 491 U.S. 524 (1989). Return to text.

[14] Id. at 526; see infra part IV. Return to text.

[15] See Florida Star, 491 U.S. at 541 (reiterating that the opinion was limited to an analysis of section 794.03 on the discrete facts of that case). Return to text.

[16] 648 So. 2d 110, 114 (Fla. 1994). Justice Kogan authored the court's opinion. Justices Shaw, Harding, Wells, and Chief Justice Grimes concurred separately without comment. Justice Overton concurred in result only, also without comment. Return to text.

[17] See Globe III, 648 So. 2d at 114; see also discussion infra part V.C. Return to text.

[18] See Globe III, 648 So. 2d at 112. Return to text.

[19] See id. at 114. Return to text.

[20] See Crime Victims Protection Act, 1995, Fla. Laws ch. 95-207; infra part VI. The author wishes to thank Mr. L. Martin Reeder of Steel Hector & Davis, West Palm Beach, for bringing the new statute to his attention. Return to text.

[21] See 1995, Fla. Laws ch. 95-207. Return to text.

[22] See discussion infra part II. Return to text.

[23] See Florida Star v. B.J.F., 491 U.S. 524 (1989); State v. Globe Communications Corp., 622 So. 2d 1066 (Fla. 4th DCA 1993) [hereinafter Globe II] (quoting State of Florida v. Globe Communications Corp., No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991) [hereinafter Globe I]), aff'd, 648 So. 2d 110 (Fla. 1994); Globe II, 622 So. 2d at 1066; State v. Globe Communications Corp., 648 So. 2d 110 (Fla. 1994) [hereinafter Globe III]. Return to text.

[24] See, e.g., Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 944 (1983) (explaining that regardless of a law's efficiency, convenience, or usefulness, the law may not be upheld "if it is contrary to the Constitution"). Return to text.

[25] Globe II, 622 So. 2d at 1079. Return to text.

[26] Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 560 (1976). Return to text.

[27] See, e.g., Denno, supra note 1, at 1113 (speculating why most news organizations do not publish the names of rape victims). Return to text.

[28] See Linda Fairstein, Panel Discussion: The Privacy Rights of Rape Victims, 61 FORDHAM L. REV. 1137, 1138 (1993) (describing rape as "the only crime that is generally viewed as victim-precipitated, occurring because the victim in some way allowed the crime to occur"). "Rape victims have always been stigmatized for their behavior, and for their participation or victimization in this type of crime." Id. Return to text.

[29] Shann Nix, Debate Over Naming Rape Victims, S.F. CHRON., Apr. 18, 1991, at A1 (quoting K. Kaufman, a counselor with San Francisco Women Against Rape). Return to text.

[30] Coker v. Georgia, 433 U.S. 584, 597 (1977) (citation omitted). In related Coker dicta, the Court recognized that rape is "a violent crime," which inflicts mental and psychological damage and "undermines the community's sense of security." Id. at 597-98. Return to text.

[31] See Fairstein, supra note 28, at 1138 (stating that "rape and other sexual assaults were treated differently from any other category of crime within the criminal justice system"). Linda Fairstein's statement had a different meaning from the one implied here because she was criticizing the heavy burden of corroboration that rape victims once held. See id. But her statement is just as true regarding current laws that are now more protective of rape victims and tougher on rapists. See, e.g., CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 404.7 (1994) (pointing out that in sexual battery prosecutions "section 794.022 of the Florida Statutes protects a sexual battery victim's privacy from unwarranted public intrusion by establishing guidelines restricting the admissibility of evidence relating to the character of the victim"); see also FLA. STAT. § 794.011(7) (1995) (excluding rapists from receiving "basic gain-time" that would shorten their prison terms); FLA. STAT. § 794.011(2)(a) (1995) (classifying sexual battery as a capital crime; I.E., punishable by death, when the rapist is an adult and the victim is a child). Return to text.

[32] See Nix, supra note 29, at A1; cf. Letters to the Editor: The Ultimate Dehumanizing Crime, WALL ST. J., May 16, 1991, at A17 [hereinafter Letters to the Editor] (final letter, proclaiming "damn the . . . psuedojournalists in the media who use the banners of civil rights and First Amendment privileges to justify the continued humiliation of rape victims through the publication of their names"). Return to text.

[33] See generally, e.g., SUSAN ESTRICH, REAL RAPE 3 (1987); Penelope J. Tomlinson, Privacy and Law Enforcement, in PRIVACY 137, 144 (John B. Young ed., 1978); Gail Fitzer, Debate Rages over Media Decision To Name Alleged Rape Victim, REUTER NEWSWIRE, Apr. 18, 1991 (quoting Rosemary Dempsey of the National Organization for Women as saying "the nature of the crime of rape is unfortunately such that society still tends to blame the victim"); Fitzer, supra (quoting Susan Estrich as saying "[t]o editors who say the stigma is gone, I have a list of women whose lives say you are wrong"); Joanne Kenen, Kennedy Case Renews Debate over Identifying Rape Victims, REUTER NEWSWIRE, Apr. 17, 1991 (citing theories of Harvard Law School Professor Alan Dershowitz that implicitly acknowledge social tendencies toward stigmatization). Return to text.

[34] See Denno, supra note 1, at 1124. Return to text.

[35] See Paul Marcus & Tara L. McMahon, Limiting Disclosure of Rape Victims' Identities, 64 S. CAL. L. REV. 1020, 1032-33 (1991). Return to text.

[36] Julia A. Loquai, Comment, Keeping Tabs on the Press: Individual Rights v. Freedom of the Press Under the First Amendment, 16 HAMLINE L. REV. 447, 460-61 (1992). Return to text.

[37] See, e.g., Denno, supra note 1, at 1130; Work, supra note 4, at 211; Nix, supra note 29, at A1. Return to text.

[38] See Denno, supra note 1, at 1130; Work, supra note 4, at 211. Return to text.

[39] See Work, supra note 4, at 1130-31. Return to text.

[40] Fitzer, supra note 33. Return to text.

[41] Laura Myers, Lifting Veil of Secrecy in Rape Cases Called an Effort To Regain Control of Crime, L.A. TIMES, Apr. 5, 1992, at 5. Return to text.

[42] See infra notes 70-74 and accompanying text. Return to text.

[43] Helen Benedict, Panel Discussion: The Privacy Rights of Rape Victims, 61 FORDHAM L. REV. 1141, 1143 (1993); cf. Letters to the Editor, supra note 32, at A17 (final letter, asserting "[y]our author's story would have been no more compelling with her byline"). Return to text.

[44] Florida Star v. B.J.F., 491 U.S. 524, 537 (1989). Return to text.

[45] Id. at 551-53 (White, J., dissenting). Return to text.

[46] See id. Return to text.

[47] See id. at 550-51 (reasoning that "[i]f the First Amendment prohibits wholly private persons . . . from recovering for the publication of the fact that [they were] raped, I doubt that there remain any 'private facts' which persons may assume will not be published in the newspapers or broadcast on television"). Return to text.

[48] Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 259 (1974) (White, J., concurring). Return to text.

[49] See, e.g., Michael Gartner, Panel Discussion: The Privacy Rights of Rape Victims, 61 FORDHAM L. REV. 1133, 1133-34 (1993); Nix, supra note 29, at A1 (quoting Stephen Isaacs, Associate Dean of Columbia University School of Journalism, as saying "[o]nce you routinely name [rape victims], the stigma . . . would be abolished fairly quickly"); Fitzer, supra note 33 (pointing out that "[s]ome legal experts and newspaper editors have supported publishing the names of rape victims, saying the stigma of rape could be removed if the media treated the crime like any other"). Return to text.

[50] See Gartner, supra note 49, at 1133. Return to text.

[51] See Kenen, supra note 33 (summarizing Dershowitz's theories). Return to text.

[52] Gartner, supra note 49, at 1133. Mr. Gartner's comments also included, however, the contradictory theory that the "function of journalists is not to change the world, or to change the public's views. People who want to change the world should become teachers or politicians, not newsmen and newswomen." Id. Return to text.

[53] See Myers, supra note 41, at 5. Return to text.

[54] See Gartner, supra note 49, at 1133 (arguing the media "are participating in a conspiracy of silence which does a disservice to the public by reinforcing the idea that there is something shameful about being raped"). Return to text.

[55] See Kenen, supra note 33, (quoting Professor Dershowitz). Return to text.

[56] See Denno, supra note 1, at 1124. Return to text.

[57] Karen DeCrow, Stop Treating Rape Victims as Pariahs; Print Names, USA TODAY, April 4, 1990, at 8A. Return to text.

[58] See Gartner, supra note 49, at 1133. Return to text.

[59] See generally Herbert v. Lando, 441 U.S. 153, 171-72 (1979) (discussing the chilling effect); Simon & Schuster, Inc., v. New York State Crime Victims Bd., 724 F. Supp. 170 (S.D. N.Y. 1989), aff'd, 916 F.2d 777 (2nd Cir. 1990); Lewis v. Time, Inc., 83 F.R.D. 455, 464-65 (E.D. Cal. 1979), aff'd, 710 F.2d 549 (9th Cir. 1983). Return to text.

[60] See, e.g., Loquai, supra note 36, at 455. Return to text.

[61] See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 (1975) (stating the Court's "reluctan[ce] to embark on a course" that would "invite timidity and self-censorship"). Return to text.

[62] Gartner, supra note 49, at 1133. Return to text.

[63] Denno, supra note 1, at 1113; cf. Fitzer, supra note 33 (noting that journalism critics consider publication of victims' names to be "a breach of journalistic ethics"). Return to text.

[64] Legislators have shown little concern for avoiding giving the impression that censorship would be limited to victims' names. Cf., e.g., Tim Nickens, The O.J. Effect? Juror Names May Be Sealed, MIAMI HERALD, Apr. 27, 1995, at 10A (discussing proposed legislation to classify jurors' names). Return to text.

[65] The statute originally provided:

Section 1. It is hereby made unlawful for any person or persons to print and publish or cause to be printed and published in any newspaper, magazine, periodical or any other publication in the State of Florida the name or identity of any female raped or upon whom an assault with intent to commit rape has been committed or may be committed.

Section 2. Whoever is convicted of the violation of the provisions of this Act shall be punished by a fine of not more than one thousand dollars or by imprisonment in the County Jail for not more than twelve months, or by both such fine and imprisonment, in the discretion of the court.

1911, Fla. Laws ch. 6226, § 1, 195, 195-96. Return to text.

[66] Id. Return to text.

[67] The language of section 794.03 is:

Unlawful to publish or broadcast information identifying sexual offense victim.—No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter. Such identifying information is confidential and exempt from the provisions of s. 119.07(1). This exemption is subject to the Open Government Sunset Review Act in accordance with s. 119.14. An offense under this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082, or s. 775.083.

FLA. STAT. § 794.03 (1995).

The confidentiality exemption referred to a Florida public records statute requiring records custodians to permit "any person desiring to do so" to inspect and examine public records. FLA. STAT. § 119.07(1)(a) (1995). The punishments provided for in sections 775.082 and 775.083 include a 60-day maximum imprisonment and a $500 maximum fine, respectively. FLA. STAT. §§ 775.082(4)(b), .83(1)(e) (1995). Return to text.

[68] See FLA. STAT. § 794.03 (1995). By referring to "any offense" under the surrounding chapter, the updated version theoretically recognized physical sexual assaults other than traditional rape. See FLA. STAT. Ch. 794 (1995). Return to text.

[69] FLA. STAT. § 794.03 (1995). Return to text.

[70] South Carolina's law reads:

Publishing name of victim of criminal sexual conduct unlawful. Whoever publishes or causes to be published the name of any person upon whom the crime of criminal sexual conduct has been committed or alleged to have been committed in this State in any newspaper, magazine or other publication shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars or imprisonment of not more than three years. The provisions of this section shall not apply to publications made by order of court.

S.C. CODE ANN. § 16-3-730 (Law. Co-op. 1994). Return to text.

[71] Under the Georgia Code:

a) It shall be unlawful for any news media or any other person to print and publish, broadcast, televise, or disseminate through any other medium of public dissemination or cause to be printed and published, broadcast, televised, or disseminated in any newspaper, magazine, periodical, or other publication published in this state or through any radio or television broadcast originating in the state the name or identity of any female who may have been raped or upon whom an assault with intent to commit the offense of rape may have been made.

b) This Code section does not apply to truthful information disclosed in public court documents open to public inspection.

GA. CODE ANN. § 16-6-23 (1994). Return to text.

[72] See MASS. GEN. L. ch. 265, § 24C (1994). Return to text.

[73] See 1987 Mass. Acts 177, § 2 (amending MASS. GEN L. ch. 265, § 24C (1994) by adding the third paragraph quoted below). The Massachusetts law closed public records of rape and criminalized release of the victim's identity, providing in relevant part:

Victim's name; confidentiality. That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape . . . shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted.

Said portion of such court record or police record shall not be deemed to be a public record....

Except as otherwise provided in this section, it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim of any of the offenses described in the first paragraph. A violation of this section shall be punishable by a fine of not less than two thousand five hundred dollars nor more than ten thousand dollars.

MASS. GEN. L. ch. 265, § 24C (1994). Return to text.

[74] E.g., WISC. STAT. § 942.02 (1974) (relating to communication of the identity of sex offense victims). That statute was enacted in 1925 but repealed, effective March 27, 1976. See WISC. STAT. § 942.02 (1982). Return to text.

[75] When the constitutionality of section 794.03 came under attack a few years ago, as will be explained in detail in part V of this Comment, the trial court concluded its opinion with the following dicta:

The need for a criminal statute with punitive sanctions for such disclosures is deemed necessary by the legislatures of only four states, Florida, Georgia, South Carolina and Wisconsin. The fact that forty-six states are able to conduct sexual assault investigations and trials without punishing the press criminally for a disclosure of the victim's identity is, in itself, a circumstance which leads this court to conclude that the state's expressed concerns . . . are somewhat exaggerated and overblown.

Globe II, 622 So. 2d 1066, 1075-76 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991), aff'd, 648 So. 2d 110 (Fla. 1994) (citations omitted). Return to text.

[76] See Prosser, Privacy, supra note 1, at 106. Return to text.

[77] See Editorial, Countering Rape's Stigma; The Best Course Is To Leave the Issue of Identification with the Alleged Victim, L.A. TIMES, Dec. 20, 1991, at 6 (explaining that "[m]ost serious news organizations adhere to the policy of not revealing an alleged rape victim's name . . . [t]his is the longstanding policy of The Times also"); Howard Kurtz, Smith's Accuser Lifts the Mask; ABC Interview Ends ID Debate, WASH. POST, Dec. 19, 1991, at C1 (explaining how most national media had for months not printed the name of the alleged victim of Dr. William Kennedy Smith, even though the name had been publicized at the beginning of the controversy); see supra note 63 and accompanying text. Return to text.

[78] See infra parts IV & V. Return to text.

[79] See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). Return to text.

[80] Of course, Florida's first rape-victim-privacy statute operated for a significant period of time without judicial resistance, and the majority of states did not use the law as a model then either. Return to text.

[81] Throughout the statute's existence, aside from the case opinions discussed within this Comment, only eight other state appellate court opinions ever cited the statute. See SHEPARD'S FLORIDA CITATIONS (through Jan., 1996 Supp.). None of those opinions questioned, limited, or criticized the law. See id.

When the constitutionality of section 794.03 came under attack a few years ago, as will be explained further in this Comment, the trial court was unable to discover any "appellate decision either reversing or sustaining a criminal conviction" under section 794.03. Globe II, 622 So. 2d 1066, 1071 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)), aff'd, 648 So. 2d 110 (Fla. 1994). Return to text.

[82] See Florida Star v. B.J.F., 491 U.S. 524, 527 (1989). Return to text.

[83] See id. at 524. Return to text.

[84] See id. Return to text.

[85] Id. Return to text.

[86] See, e.g., Denno, supra note 1, at 1117-19. The series is commonly recognized as including four or five important decisions. See generally Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976); Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977); Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); Florida Star, 491 U.S. at 524. Return to text.

[87] E.g, Cox Broadcasting, 420 U.S. at 491 (stating "it is appropriate to focus on the narrower interface between press and privacy that this case presents"); Daily Mail, 443 U.S. at 105 (warning that the "holding in this case is narrow"). Return to text.

[88] 420 U.S. at 469. Return to text.

[89] Id. at 496-97. Return to text.

[90] 430 U.S. at 308. Return to text.

[91] Id. Return to text.

[92] 443 U.S. 97 (1979). Return to text.

[93] Id. at 104. Return to text.

[94] 491 U.S. 524 (1989). Return to text.

[95] The Florida Star had an average circulation of 18,000 copies. 491 U.S. at 526. Return to text.

[96] Id. at 527. Return to text.

[97] Id. Return to text.

[98] Id. at 528. Return to text.

[99] Id. (citations omitted). Return to text.

[100] Id. at 529. Return to text.

[101] See Florida Star v. B.J.F., 499 So. 2d 883 (Fla. 1st DCA 1986), rev'd, 491 U.S. 524 (1989). Return to text.

[102] Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). Return to text.

[103] 443 U.S. at 97. Return to text.

[104] Id. at 103. Return to text.

[105] See Florida Star, 491 U.S. at 541 ("We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press."). Justice White posited that if sexual assault victimization is not within the zone of personal privacy referred to in Florida Star, he would be hard-pressed to identify what was within the zone. See id. at 550-51 (White, J., dissenting). Return to text.

[106] Id. at 541 (concluding "that no such interest is satisfactorily served by imposing liability under § 794.03 to appellant under the facts of this case"). Return to text.

[107] Id. at 537. Return to text.

[108] Id. Return to text.

[109] See id. Return to text.

[110] Id. at 538. Return to text.

[111] Id. Return to text.

[112] See id. Return to text.

[113] See id. at 528. Return to text.

[114] See id. at 539. Return to text.

[115] See id. (listing examples such as: 1) when the community already knows the victim's identity, 2) when the victim him/herself calls public attention to the assault, 3) when the victim's identity itself becomes a reasonable subject of public concern). Return to text.

[116] Id. "Scienter" is an intent standard. Return to text.

[117] Cf. id. at 540. Return to text.

[118] See id. (speculating that an "individual who maliciously spreads word . . . to persons who live near, or work with, the victim may [cause] consequences as devastating as the exposure of her name to large numbers of strangers").

This speculation logically may lead one to wonder whether Desiree Washington, whom former heavyweight boxing champion Mike Tyson was convicted of raping, would have suffered the same consequences if knowledge of her identity had been limited to only 30 or so people. See Tyson's Rape Victim Declares She's Been "Tried, Convicted," INDIANAPOLIS NEWS, Jan. 27, 1993, at E1 (describing Washington's feelings about being "trapped by the publicity surrounding her," not being able to enjoy her life, having no privacy, and quoting Washington as saying that she "can't heal and [she] can't get better and [she is] finding it hard to love and open up"); see also Tyson Victim "in Prison," NEWSDAY MAG., Jan. 27, 1993, at 133; Tyson's Rape Victim Says Publicity About Case Has Her in Prison, Too, INDIANAPOLIS STAR, Jan. 27, 1993, at E2. For further commentary on the distinctions between mass communication and small-scope communication, see infra notes 157-68 and accompanying text. Return to text.

[119] See Florida Star, 491 U.S. at 540. Return to text.

[120] Id. Assumedly, the 18,000-copy circulation of The Florida Star placed that newspaper in the category of "media giant" as opposed to "smalltime disseminator." Return to text.

[121] Where Was Teddy? (Police Concerned About Sen. Edward Kennedy's Behavior After His Nephew William Smith Was Accused of Rape), TIME MAG., May 20, 1991, at 27. Return to text.

[122] Globe II, 622 So. 2d 1066, 1068-69 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)), aff'd, 648 So. 2d 110 (Fla. 1994). Return to text.

[123] Id. at 1068. Return to text.

[124] Those sources—some met by Mr. Harrell while he staked-out the accuser's home—included various acquaintances of the accuser, other reporters, a Palm Beach County Victim Services coordinator, and former relatives of the accuser. Id. at 1068-69. Return to text.

[125] Ms. Bowman's name did not enter the public records until May 9, 1991, when the State Attorney filed an information with the Clerk of the Circuit Court of Palm Beach County accusing Smith of sexual battery and simple battery. Globe II, 622 So. 2d at 1069 (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)). Return to text.

[126] See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492-96 (1975). Return to text.

[127] See Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99-100 (1979). Return to text.

[128] See infra parts V.A. through V.C. Return to text.

[129] The first issue was released on April 15, 1991, with a cover date of April 23, while the second issue was released April 22, 1991, with a cover date of April 30. Globe II, 622 So. 2d 1066, 1069 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)), aff'd, 648 So. 2d 110 (Fla. 1994). Return to text.

[130] Among the newspapers were THE SUNDAY MIRROR, TODAY, and PEOPLE. Id. One of those, THE SUNDAY MIRROR, had a circulation of nearly three million copies. Id. Return to text.

[131] Id. Return to text.

[132] See infra part V. Return to text.

[133] See infra part V. (referring to NBC Nightly News (NBC television broadcast, Apr. 16, 1991)). Return to text.

[134] Id. Return to text.

[135] E.g., Todd Rosenthal, Alleged Victim at Kennedy Estate Is Millionaire's Stepdaughter, REUTERS NEWSWIRE, Apr. 17, 1991 (justifying the revelation of Ms. Bowman's identity by stating that "Reuters, which normally does not identify rape victims, has decided to publish the woman's name because it is now public knowledge due to her identification by other news organisations like the New York Times and NBC television"). Return to text.

[136] See Gartner, supra note 49, at 1133-34. Return to text.

[137] See, e.g., Fitzer, supra note 33; Kenen, supra note 33. Return to text.

[138] Globe II, 622 So. 2d 1066, 1068 (Fla. 4th DCA 1993) (citing Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)), aff'd, 648 So. 2d 110 (Fla. 1994). Return to text.

[139] Id. Return to text.

[140] Id. Return to text.

[141] Id. at 1069. Return to text.

[142] Id. at 1070. Return to text.

[143] Id. Return to text.

[144] See, e.g., Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). Return to text.

[145] Such was almost the case in Florida Star, 491 U.S. 524 (1989), except that the possible liability there was civil rather than criminal. Return to text.

[146] Some First Amendment scholars might argue that no government interest could ever be more compelling than the First Amendment in any situation. This author submits that such situations can exist. For example, a statute criminalizing unauthorized dissemination of the United States' active nuclear missile launch codes would house a greater government national security interest, more compelling than the First Amendment. Return to text.

[147] Globe II, 622 So. 2d 1066, 1071-73 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)), aff'd, 648 So. 2d 110 (Fla. 1994). This was in contrast to the Florida Star situation, which involved an unconstitutional application of the statute, but the United States Supreme Court did not take the opportunity to strike down section 794.03 entirely. In fact, the Court expressly conceived of the possibility that section 794.03 could function constitutionally. See 491 U.S. at 537 ("We accordingly do not rule out the possibility that, in a proper case, imposing civil sanctions . . . might be so overwhelmingly necessary to advance these interests as to satisfy the Daily Mail standard.") Return to text.

[148] Globe II, 622 So. 2d at 1070 (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)). The interests were virtually the same as those asserted in the Florida Star litigation. See supra text accompanying note 107. Return to text.

[149] Globe II, 622 So. 2d at 1070-71 (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)). This might qualify as an understatement in light of the United States Supreme Court's recognition that those interests are at the very least "highly significant" and could be of the highest order "in a proper case." See Florida Star, 491 U.S. at 537 (noting that "we are daily reminded of the tragic reality of rape"). See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975) (stating that the interests underlying claims of privacy "are plainly rooted in the traditions and significant concerns of our society"). Yet that "proper case" qualification goes to the core of the overbreadth issue. Return to text.

[150] Globe II, 622 So. 2d at 1071 (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)) (finding that "enforcement of such [shield] laws collides with First Amendment claims of the press to comment freely on a matter of public interest which is what the defendant is accused of doing in the case at bar"). Return to text.

[151] Id. at 1073. Return to text.

[152] Id. Return to text.

[153] Florida Star, 491 U.S. at 540 (discussing one of many problems with section 794.03: "liability follows automatically from publication"). Return to text.

[154] This is demonstrated by some problems with Florida's new victim-privacy law; these problems stem from the legislative attempt to provide individualized adjudication.

The possibilities of, and problems with, using case-by-case hearings selectively to enforce rape-victim-privacy are further explored and critiqued infra part VI.B.4. Return to text.

[155] Florida Star, 491 U.S. at 539 (quoted in Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)). Return to text.

[156] The Globe I trial court engaged in an "as applied" analysis, which for all intents and purposes is the same as the case-by-case analysis recommended to cure section 794.03's overbreadth problems, except that such analysis ought to be engaged in before prosecution rather than after. At that time, the trial court noted some relevant facts about Ms. Bowman's situation that went beyond the scope of the Florida Star list. Specifically among these were the facts that Ms. Bowman's "identity had been published by several British tabloid-type newspapers before the Globe published her name;" a possible "clear and present danger to [a] victim prior to the identification and apprehension of the alleged perpetrator" was absent; and no threat of a danger to the criminal justice system existed from publishing Ms. Bowman's name. Globe II, 622 So. 2d 1066, 1073 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)), aff'd, 648 So. 2d 110 (Fla. 1994). Return to text.

[157] Id. Return to text.

[158] FLA. STAT. § 794.03 (1995). Return to text.

[159] See Florida Star, 491 U.S. at 540 (ruling that "the facial underinclusiveness of § 794.03 raises serious doubts about whether Florida is, in fact, serving, with this statute, the significant interests . . . " asserted). Return to text.

[160] Id. Return to text.

[161] Globe II, 622 So. 2d at 1073-74 (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)) (citing Florida Star, 491 U.S. at 540). Return to text.

[162] Id. at 1074. Return to text.

[163] In this regard, Patricia Bowman's and Desiree Washington's experiences demonstrate the reality of mass publicity compared to small-scope publicity. See supra note 118. Return to text.

[164] For example, the Ninth Circuit once explained:

There is an obvious and substantial difference between the disclosure of private facts to an individual—a disclosure that is selective and based on a judgment as to whether knowledge by that person would be felt to be objectionable—and the disclosure of the same facts to the public at large. The former, as the Restatement recognizes, does not constitute publicizing or public communication . . . and accordingly does not destroy the private character of the facts disclosed.

Virgil v. Time, Inc., 527 F.2d 1122, 1127 (9th Cir. 1975), cert. denied, 425 U.S. 998 (1976); see also WEBSTER'S NEW TWENTIETH CENTURY UNABRIDGED DICTIONARY 1457 (2d ed. 1983) (defining publicity as "commonly known, or open to the knowledge of a community"). Return to text.

[165] See, e.g., Feiner v. New York, 340 U.S. 315 (1951) (affirming conviction of streetcorner speaker who insulted politicians and minorities, on the basis that the audience was disorderly and unruly); Cantwell v. Connecticut, 310 U.S. 296, 308 (1940) (explaining that breach of the peace includes "words likely to produce violence in others"). The Court in Cantwell suggested that "[n]o one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot[,] . . . disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order." Cantwell, 310 U.S. at 308. Return to text.

[166] For example, even if sexual material might be suitable for adults, the state can regulate or ban that material when the intended audience consists of children. See Ginsberg v. New York, 390 U.S. 629, 636 (1968). Also, the standards used by juries to decide whether sexual material is obscene may be altered when the material is "designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large." Mishkin v. New York, 383 U.S. 502, 508 (1966). Return to text.

[167] Many jurisdictions recognize defamation only when the defamatory meaning of a publication is acknowledged by a "right-thinking" community. E.g., Kimmerle v. New York Evening Journal, 186 N.E. 217, 218 (N.Y. 1933) (defining the New York standard as dependent on the minds of "right-thinking persons"). The practical effect of this rule is that criminals cannot recover for having had their criminal abilities insulted within a criminal peer group. See Note, The Community Segment in Defamation Actions: A Dissenting Essay, 58 YALE L.J. 1387 (1949). Return to text.

[168] But see Virgil v. Time, Inc., 527 F.2d at 1125-27. However, in a non-First Amendment context, defamation is still defamation whether the audience consists of 200,000 people or only one person. See W. PAGE KEETON, PROSSER & KEETON ON TORTS § 111 (5th ed. 1984). Return to text.

[169] See Florida Star v. B.J.F., 491 U.S. 524, 541 n.9. (1989). Return to text.

[170] Globe II, 622 So. 2d 1066, 1074 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)) (deciding the statute "is probably not a 'prior restraint' "), aff'd, 648 So. 2d 110 (Fla. 1994). Return to text.

[171] Id. Return to text.

[172] Id. at 1074-75. Return to text.

[173] Id. at 1075. Return to text.

[174] See id. at 1074-75. Return to text.

[175] Id. at 1076. Return to text.

[176] Id. at 1075. The relevant portion of the Florida Constitution is article 1, section 4, stating that "[e]very person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." FLA. CONST. art. I, § 4. Return to text.

[177] The court based the conclusion primarily on the lack of contrary controlling precedent in Florida. See Globe II, 622 So. 2d 1066, 1081 (Fla. 4th DCA 1993) (quoting Globe I, No. 91-11008MM A02 (Palm Beach County Ct. Oct. 21, 1991)), aff'd, 648 So. 2d 110 (Fla. 1994). However, the conclusion that press protection in Florida is at least as broad as federal constitutional protection is curious. The federal Constitution simply states that no law may be passed "abridging the freedom of . . . the press," while the Florida Constitution provides the caveat that speakers "shall be responsible for abuse" of their rights. Compare U.S. CONST. amend. I with FLA. CONST. art. I, § 4. The differences in language raise many interesting arguments that are unfortunately beyond the scope of this comment. Return to text.

[178] Globe II, 622 So. 2d at 1075. Return to text.

[179] See Globe II, 622 So. 2d at 1076-81. Return to text.

[180] Judge Anstead is now an Associate Justice of the Florida Supreme Court. Return to text.

[181] Globe II, 622 So. 2d at 1078. Return to text.

[182] Id. at 1079. Return to text.

[183] See Florida Star v. B.J.F., 491 U.S. 524, 538 (1989) (theorizing that section 794.03 could "hardly be said to be narrowly tailored" in those situations wherein the "the government has failed to police itself in disseminating information"). Return to text.

[184] See Globe II, 622 So. 2d at 1079 (proposing "a determination by the state to maintain confidentiality within its own ranks and records, and a provision for sanctions upon breach"). Return to text.

[185] U.S. CONST. amend. I. Return to text.

[186] Globe II, 622 So. 2d at 1079. Return to text.

[187] Id. Return to text.

[188] See id. Return to text.

[189] Id. at 1080. Return to text.

[190] See Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (pointing out that the statute does not define the phrase "instrument of mass communication"). Return to text.

[191] Globe II, 622 So. 2d at 1081. Return to text.

[192] Id. Return to text.

[193] 491 U.S. 524 (1989). Return to text.

[194] Globe III, 648 So. 2d 110, 112-13 (Fla. 1994). Return to text.

[195] Id. Return to text.

[196] Id. at 113. Return to text.

[197] Id. at 113-14 (concluding first that "[r]ewriting would be necessary" and then further encouraging the Legislature by stating "we do not rule out the possibility that the legislature could fashion a statute that would pass constitutional muster"). Return to text.

[198] Id. Return to text.

[199] Id. at 110. Return to text.

[200] 1995, Fla. Laws ch. 95-207, § 8, 1832, 1835 ("Became a law without the Governor's approval June 9, 1995."). Return to text.

[201] See FLA. S. JOUR. 385 (Reg. Sess. April 21, 1995) (memorializing a vote of 38 in favor and 0 opposed); FLA. H.R. JOUR. 876 (Reg. Sess. April 27, 1995) (memorializing a vote of 115 in favor and 0 opposed); FLA. S. JOUR. 1107-09 (Reg. Sess. May 5, 1995) (memorializing a vote of 36 in favor and 0 opposed). Return to text.

[202] FLA. S. JOUR. 1107-09 (Reg. Sess. May 5, 1995). Return to text.

[203] FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1995 REGULAR SESSION, HISTORY OF SENATE BILLS at 65, SB 496. Return to text.

[204] 1995, Fla. Laws ch. 95-207, § 8, 1832, 1835 (enacting the Crime Victims Protection Act). Return to text.

[205] Fla. SB 496, § 2(1) (1995). Return to text.

[206] See supra text accompanying note 148. Return to text.

[207] See supra text accompanying note 107. Return to text.

[208] See supra text accompanying notes 187-88. Return to text.

[209] The Florida Legislature has maintained its assertion that these interests are always compelling. See Fla. SB 496, § 2(1) (1995). The reviewing courts were not quite in agreement with the Legislature on that point, but they have openly acknowledged that protecting rape victims from ridicule and danger and encouraging those victims to report the crimes are highly significant interests that can often be compelling enough to suspend First Amendment privileges narrowly. See Florida Star v. B.J.F., 491 U.S. 524, 537 (1989) (admitting that "in a proper case, imposing . . . sanctions . . . might . . . advance these interests as to satisfy the Daily Mail standard"); Globe III, 648 So. 2d 110, 114 (Fla. 1994) (admitting that "the legislature could fashion a statute that would pass constitutional muster"). Return to text.

[210] 1995, Fla. Laws ch. 95-207, § 2, 1832, 1832. Return to text.

[211] Fla. SB 496 (draft of April 21, 1995). Return to text.

[212] See Florida Star, 491 U.S. at 540. Return to text.

[213] The narrower question of whether any given victim who would not receive anonymity would be more or less willing to report a sexual crime is probably impossible to answer within the confines of feasible constitutional balancing. The state cannot adjudicate the question until after the crime has been reported, which means in all practicality that the state cannot adjudicate the question at all. Theoretically, the best practical (though not necessarily legal) way to adjudicate the issue would be to have rape victims talk to judges before talking to the police. However, the trial court system is unlikely to have the means by which to cope fairly and efficiently with such a procedure. Return to text.

[214] See FLA. STAT. § 92.56 (1995). Return to text.

[215] A simple outline of the Act's provisions may be found also in FIRST AMENDMENT FOUNDATION, SECTION-BY- SECTION ANALYSIS OF SB 496 (June 15, 1995). Return