Court Quashes Subpoena to Freelance Reporter in High School Teacher-Student Sex Case
 
March 26, 2008
 

A Florida circuit court granted a motion to quash a subpoena that sought a reporter’s testimony and notes related to an article on the alleged affair between a local female teacher and her former student.

In what appears to be the first written opinion of its kind, the court in In Re: The Marriage of Scott Porter, Husband, and Jennifer Porter, Wife, held that a part-time freelance reporter meets the statutory definition of a “professional journalist” under the state shield law. The judge in Jacksonville quashed the subpoena in the teacher’s divorce case.

Folio Weekly is an alternative newsweekly that publishes investigative articles and commentary about the people, issues and events in northeast Florida. On November 20, 2007, the newsweekly’s cover-story, “School for Scandal: An Alleged Affair Between A Teacher At Fleming Island High School And A Student Yields Big Rumors But Little Punishment,” reported on the alleged affair between Jennifer Porter, a local, female high-school teacher and her former student.

At the time, Ms. Porter had been engaged for more than a year in a hotly-contested divorce proceeding and custody battle over her children. Her alleged affair with a former student was well-known in the local community. Less than a month later, Ms. Porter issued a subpoena to Susan Clark Armstrong, the author of the article, commanding her to appear for deposition and to bring her notes.

Florida’s shield statute that provides “[a] professional journalist [with] a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news.” Fla. Stat. §90.5015. The statute defines a professional journalist as “a person regularly engaged in collecting, … writing, … reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper … or news magazine.”

In most cases in Florida that have addressed the shield law, the parties issuing the subpoena have conceded that the reporter is a professional journalist for purposes of the statute’s protection. Instead, they have focused their arguments on the three-part test by which they can overcome the qualified protection, or on the narrow exception provided by the statute for cases when the reporter is an eyewitness to a crime.

However, at the Jacksonville hearing, Ms. Porter’s attorney focused on Armstrong’s status as a part-time, freelance reporter in arguing that she did not qualify at all for protection under the statute. According to the attorney, Armstrong could not be “regularly engaged in … reporting … for [her] livelihood” if she only earned a few thousand dollars a year for her work.

In making its decision, the court considered the fact that Armstrong had worked as a freelance reporter for Folio Weekly for more than a decade, during which time she had authored dozens of investigative and features stories for the newsweekly. Ultimately, the court held Armstrong was a professional journalist under the statute.

Holland & Knight represented the Folio Weekly freelancer in this matter.

For more information, email Corinne R. Simon at corinne.simon@hklaw.com or call toll free, 1.888.688.8500.