Judge Elizabeth Scherer. Photo: Candace West

Litigators and journalists are speaking out following tense proceedings in which a Broward judge Wednesday threatened to hold the Sun Sentinel and two of its reporters in criminal contempt of court.

On Aug. 15 Broward Circuit Court Judge Elizabeth Scherer chastised the Sun Sentinel and Dana J. McElroy, the newspaper's attorney and partner at Fort Lauderdale-based firm Thomas & LoCicero, over the publication of information that the court had previously ordered to be redacted.

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The incident in question began in early August when the newspaper, acting on a Facebook tip from a reader, realized that it was possible to view ostensibly censored material in a report by the Broward School District. The report detailed how the district had interacted with Nikolas Jacob Cruz, the 19-year-old who killed 17 people in a February mass shooting in Parkland.

Sun Sentinel reporters Brittany Wallman and Paula McMahon published a second story Aug. 4, revealing the newly discovered material that the court thought had been redacted.

The school district responded by filing a petition to hold the paper, Wallman and McMahon in contempt of court. Its Aug. 6 filing contends that the named parties ”engaged in indirect criminal contempt” and deliberately ignored a prior order by Broward Circuit Judge Patti E. Henning to withhold certain content in the report. It claimed the publication of the redacted information violated Cruz's trial and privacy rights.

 

Read the Broward school district's petition to hold the Sun Sentinel and its reporters in contempt: 

 

The move infuriated Scherer, who is presiding over Cruz's criminal trial and the school district's petition to hold the paper and its journalists in contempt of court.

As seen in a video by shared WPEC-CBS12 from Wednesday's court proceedings, Scherer asked whether the reporters were present. When their attorneys said they weren't, the judge asked why.

“Well, certainly, I'm going to be discussing the possibility of  holding them in contempt,” Scherer said. “I would think they would want to be present.”

When the the paper's attorneys said they were not aware the reporters were required to be in court, Scherer replied sternly.

“It's not a matter of requiring,” she said. “But if somebody is considering contempt proceedings, which could include a fine or jail, they didn't feel that making themselves available was important?”

McElroy explained that she, along with attorneys Mark R. Caramanica and Daniela Abratt, had filed a motion to dismiss the school district's petition on Aug. 10 and did not expect the court to ask the reporters to testify.

Scherer later said she would be willing to personally redact court documents and dictate in future court orders what the Sun Sentinel would and would not be permitted to published.

Just a day earlier, 30 media organizations, including The New York Times and the Washington Post, jointly filed an amicus curiae brief in support of the Sun Sentinel. The filing also called on Scherer to dismiss the school district's bid for sanctions.

Since Wednesday's contentious hearing, more litigators and media outlets are making their concerns about the district's filing—as well as Scherer's statements—known.

Attorney Jeffrey S. Robbins of Saul Ewing Arnstein & Lehr. Photo: Dana J. Quigley

“When judges threaten to punish newspapers for publishing legally obtained info, this raises really dire constitutional issues of which, quite frankly, that court should have been well aware,” said media law attorney Jeffrey S. Robbins.

Robbins, who is a partner at Saul Ewing Arnstein & Lehr in Boston, said that, because the Sun Sentinel lawfully obtained the redacted document, the newspaper and the information are entitled to “the highest degree of constitutional protection.”

“For a judge to say that she thought she was entitled to dictate to a newspaper what they could and could not print from public records lawfully obtained ought to be a … matter of great concern for anyone who cares about the fundamentals of the First Amendment,” Robbins said.

Robbins also cited the precedent set by the U.S. Supreme Court in the Pentagon Papers case, which subjected the use of prior restraint—usually referring to censorship by a government entity made in reaction to a publicly made expression—to a heavy proof of burden.

“There is a great body of constitutional law that restricts the government's right or the court's right to engage in prior restraint … to the most dire example,” Robbins says, noting that such an example might include the publication of the route of military ships.

As for the district's contention that publication violated Cruz's rights, Robbins disagreed.

“The burden on anyone to demonstrate that any harm to Cruz's trial rights is so speculative, so doubtful,” he said. “It doesn't outweigh the public's right to know what public officials knew and when they knew it. This is the mother's milk of American democracy: how public officials perform and carry out their duties.”

Mamie Joeveer, litigator with AXS Law Group

Other Miami-based legal experts told the Daily Business Review that, if the newspaper indeed obtained the redacted information legally, they were guaranteed the full safeguards of the law.

“The media is not required to refrain from publishing information that was obtained legally and that is relevant and a matter of public concern,” said Mamie Joeveer.

Joeveer, a litigation attorney with AXS Law Group, also chairs the Florida Bar's Media Law Committee.

“The media internally decides what information should be published in sensitive cases such as this one,” she said. “Any order by the Judge would have to be within the parameters of the Constitution.”

According to University of Miami law professor Caroline M. Corbin, the paper and its reporters would likely have the law on their side if Scherer were to hold them in contempt.

University of Miami Professor of Law Caroline M. Corbin.

“The First Amendment probably protects the journalists if three things are true: They obtained the information legally; the information is truthful; and the information is a matter of great public concern,” Corbin said.

Likewise, Robbins said he does not imagine that Scherer will proceed with such actions, noting that there is a strong possibility it would be reversed upon appeal. He said he is “certain that the court will pay the appropriate level of heed to the substantial body of constitutional precedence that prohibits that kind of action.”

The Sun Sentinel's attorney, McElroy, declined to comment on the ongoing litigation. And the Broward school district's counsel, attorneys Eugene K. Pettis and Debra P. Klauber of Haliczer, Pettis & Schwamm, did not respond to requests for comment by deadline.

Broward County Public Schools spokeswoman Nadine Drew offered a statement saying: “It was never the School Board's intent to pursue contempt proceedings against the Sun-Sentinel or the individual reporters.” The district's statements adds that “such matters are more properly handled by the judges presiding over the litigation.”

Julie Anderson, editor-in-chief of the Sun Sentinel, told the Daily Business Review that she and the paper “feel as strongly today about our decision, as we did the day we published details of the uncensored report.”

“We believe the community had the right to know details of the Broward school district's mistakes in dealing with the student leading up to the massacre,” Anderson said. “We obtained the report lawfully on the school district's website, we weighed the importance of the story, and we published. The school district was under court order to redact information, not the press.”