Ruling On Rape Name   

Florida judge's pro-press decision is judicial daring of the highest order.

Blazes New TrailA tabloid newspaper is off the legal hook – temporarily – in the most celebrated case of criminal prosecution for publishing the name of a rape victim. The constitutional victory in Florida for the Globe is, in fact, as sweeping as any the American press is likely to get in court these days.

Palm Beach County Judge Robert Parker threw out, before a trial, two criminal charges against the Globe for naming the woman who accused William Kennedy Smith of rape last April. The judge did so in a decision that could add significantly to the press's First Amendment rights – provided his ruling holds up after a planned appeal by local prosecutors.

Many news organizations have policies against identifying victims of sexual assault and may have no need for the kind of protection the Globe received. But the American press would stand to benefit in a big way from the two lines of reasoning Parker followed in ruling for the Globe. Both have significant potential to insulate the press from legal restraints.

The first seems to free the press from a problem that can be traced back to English antecedents of First Amendment law. Sir William Blackstone, who isarguably the greatest jurist in English history, was the author of the notion that the press does not and should not get the full protection of the law unless government attempts to impose prepublication controls or censorship – in other words, "prior restraint." The press, under that rationale, is fully accountable for its publishing misdeeds – but only after the fact.

Blackstone's theory is responsible, in basic ways, for the deeply entrenched First Amendment principle that the government almost never can stop the presses in advance to prevent the dissemination of a story.

But that theory leaves the press fully exposed to a myriad of post -publication legal restraints or punishments. The most serious of these, naturally, are laws making it a crime to publish something that the government wants kept out of print or off the air. In that category are laws imposing criminal liability for identifying victims of sexual crimes.

The Globe was charged under just such a law. But Parker, in the most important part of his ruling, erased the difference between prior restraints and post-publication criminal punishment: "It no longer makes any difference whether the restriction comes in the form of an injunction or in the form of a penal 'subsequent punishment' under federal or state decisional law. Both forms of restraint are subject to careful review which requires the highest form of state interest to sustain their validity."

In what amounts to a rebuke of even Blackstone, Parker commented that the term "prior restraint" may have lost "much of its utility as an aid to First Amendment analysis." That is judicial daring of the highest order. If that were to become the law of the land, the press would enjoy much greater protection than it now does, not only under criminal laws, but also under the law of libel and invasion of privacy.

It is only fair to note that the U.S. Supreme Court has not embraced Parker's approach to the First Amendment, even though the Palm Beach County judge found language in prior rulings by that court to buttress his conclusion. But, as long as this breath of new freedom in Florida lasts, the press surely will enjoy inhaling it deeply.

The other core principle upon which Parker relied may be of greater practical value. He ruled that when a state uses a criminal law to enforce a public policy against the press (such as keeping rape victims' names confidential), it has the burden of proving that its policy is of "the highest order" and that it can be achieved in no other way than by punishing the press. In short, a doctrine of necessity.

In the Globe case, Palm Beach County prosecutors contended that the tabloid could defeat the criminal charges only if it could prove that the state's interest in rape victim confidentiality was not important enough to justify punishing the press. "Such an approach turns the First Amendment upside down," Parker declared. It was up to the state, he said, to prove it needed criminal statutes to protect victims of sexual assault from being publicly identified.

The judge noted that it was the practice of prosecutors in Florida to include the names of adult sexual assault victims in the papers they file to start a criminal case for assault. Other official documents used in such cases also include the names, he said.

"The privacy rights of [the woman in the Smith case]...are not even hers to command; her so-called rights belong to the state attorney," Parker wrote. "His unfettered discretion, whether to go public and when, his decision to prosecute or not, is virtually absolute. What a paternalistic, constitutional abode the state invites us to dwell in."

In the Globe case, he concluded, "the state has failed to carry its burden of sustaining its actions in taking the extreme step of criminal prosecution."

Perhaps to make his point, the judge included the Palm Beach woman's name in his opinion. l