Can billions of dollars buy permission not to abide by a state constitution? Robert Kraft—owner of the New England Patriots, overseer of one of the greatest dynasties in modern NFL history, and self-styled humanitarian (if you ignore the coziness with Donald Trump) is betting yes. He hired some of the best known defense lawyers money could buy, William Burck and Alex Spiro, and deployed them to Palm Beach County. The two barely quoted any statutes or precedents in court on Friday, but they did do their best to imply that Florida’s public records law violates the Fourth Amendment.
It’s not every day you see lawyers argue that part of a state’s constitution sounds illegal. It wasn’t the only unusual occurrence of the day: That same afternoon, one of those very expensive defense lawyers argued that the police report describes so well a masseuse “manipulating Kraft’s penis” that there is no need to see the video; defense lawyers generally argue that everything in police reports is wrong.
This is how desperate Kraft seems to be to prevent the public from seeing him receive a hand job. And he has an uphill battle: Florida’s constitution strongly endorses public records—including police evidence, including videos taken by Jupiter police of what happened inside a massage parlor where, according to law enforcement, Kraft twice paid for and received sexual acts.
Decades ago, Floridians embedded their right to public records directly in the founding document of the state. The rule is simple and expansive: If a government agency has a record, it must be made public unless the law expressly saying otherwise. The constitution even goes so far as to say that the right to privacy “shall not be construed to limit the public’s right of access to public records.” This goes for all records, from text messages to drafts of proposals to posts on a city’s Facebook page. This also applies to evidence gathered by law enforcement—in this case videos recorded by Jupiter police of men, including Kraft, receiving sex acts at a the Orchids of Asia during a prostitution investigation. (At the time, law enforcement said they suspected human trafficking also was happening at Orchids of Asia, but prosecutors have since conceded they never found any evidence of trafficking.)
The charges themselves aren’t a huge problem for Kraft; he’s charged with two misdemeanors, which carry a maximum penalty of a small amount of jail time and fines the billionaire can easily afford. He has entered a plea of not guilty and already turned down one offer from prosecutors.
Kraft’s bigger problem is potential embarrassment, which means his legal team is fighting the release of the videos on two fronts. For the sake of the criminal case, they need the evidence tossed from court. The taping was done using a “sneak-and-peek” warrant, which became much easier to obtain under the Patriot Act because they were supposed to be used to fight terrorism, and Kraft’s lawyers will argue the tactic never should have been approved for investigating prostitution. For the sake of Kraft’s reputation, though, they also have to get the video suppressed from public view.
“The starting point in Florida is that any place the government captures information—which could be a spreadsheet, an email, a text message or a videotape—is available for the public to see and copy. There are narrow exceptions to the law, but it’s the burden of the government agency—in this case, the police—to show why an exemption should apply,” Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, told me in an email a few days before the court hearing, at which prosecutors said they didn’t consider the recording exempt and would release it unless told otherwise by the court.
None of this is a secret to Floridians, who’ve been known to take pride in just how many documents they can get from their government. To be a Floridian is to truly believe that every record in the hands of your government is a public record unless the legislature says otherwise. It is to express genuine shock when you find out other states won’t disclose records of police officers who have been accused of sexual assault. It’s to know the phrase “can you please cite the exemption that says you can deny me access to this record” off the top of your head, as if you were reciting your own phone number. Like a New Yorker who leaves and discovers that in other places people do this thing called “driving,” every Floridian journalist (and a lot of non-journalists too) remembers the first time they went to another state and discovered that records they regard as obviously public can be denied for no well-defined reason.
“I think people in Florida are pretty well-attuned to their rights because Florida has cultivated its reputation as a state where sunlight in government is valued. It’s definitely a civic bragging point,” LoMonte said. “I travel around to a lot of states meeting with open-government lawyers and journalists, and their first reaction is always, ‘Ohh, Florida, you’re so lucky,’ and they don’t mean the oranges.”
Friday’s hearing addressed multiple motions, including several filed by media outlets asking to intervene in the case to ensure the state’s public records laws were followed. Throughout the proceedings, Burck repeated to Palm Beach County Judge Leonard Hanser that he didn’t want to argue whether the state’s public records law is unconstitutional. But at several points, he sure sounded like he did: “It’s a shocking thing to hear the press take the position that the federal right to privacy ... gives way to a Florida state statute about public records,” he said.
And later: “The media seems intent on putting the Florida statutes in conflict with the U.S. Supreme Court and the federal Constitution.”
During the court hearing, which lasted more than three hours, I didn’t hear the lawyers cite a single piece of Florida case law. Most of the time was occupied by Burck citing the Fourth Amendment and how its right to avoid unreasonable search and seizure means this particular piece of police evidence isn’t a public record.
But he didn’t call it police evidence (which it is)—he called it pornography. Burck used the phrase “prurient interests” over and over, insisting the media wants the video simply for clicks (which is no surprise given how many times the same point has come up in Kraft’s teams legal briefs). Burck even argued that the video should be kept away from the public the descriptions in the police record would suffice. “If the affidavit says what happens,” Burck said, “what is the interest the public has in seeing it?”
In years of covering court proceedings, I have never seen a defense lawyer say a police document should be taken at its word. A key part of nearly any criminal proceeding is the defense lawyers using the state’s evidence to pick apart a police affidavit’s account. Kraft’s lawyers haven’t started the process of obtaining the state’s evidence yet, but they insist their client is not guilty—yet they also say the public can rely on the affidavit for information about Kraft’s alleged crimes.
Three attorneys for various media companies responded to the Kraft team’s arguments by citing piles of caselaw and statutes, saying that by every established test in Florida, the video is a public record. It was hard to not notice that implied gender dynamics on display; Kraft’s lawyers, all men, repeatedly citing the Fourth Amendment while the mostly female lawyers representing the media responded with detailed citations and overviews of history of the public records law, even providing the judge with different legal tests established by the state’s supreme court for use in such situations.
The media’s attorneys pointed out Florida law does not provide a public-records exemption for suppressed evidence, meaning even if the video is tossed out from the criminal case, it still can be treated as a public record. In fact, they argued, if law enforcement overstepped with their tactics in the investigation, that is all the more reason to allow the public to review the evidence. (A few days after the arguments, the South Florida Sun Sentinel won a Pulitzer Prize for its coverage of the massacre at Marjorie Stoneman Douglas High, which included one about police missteps that used law enforcement videos received through public records requests.)
“He has presented no evidence whatsoever,” one of the media’s lawyers told the judge, “other than an argument that everybody will find out and everybody will get to see.”
There also was a jab at Burck’s implication that the entire public records statute is illegal, with one media lawyer saying: “The right of access to public records is constitutional. It’s not just a silly little statute, as Mr. Burck will suggest.”
The case is unlikely to be resolved any time soon. Even when Hanser rules, the decisions likely will be appealed. The arguments could go all the way to the Florida Supreme Court, meaning Kraft v. News Media may enter the pantheon of Florida public records cases cited over the years. Past rulings from the state’s highest court include whether NCAA records turned over to Florida State are a public record (Yes), whether tape recordings become a public record when they are turned over to criminal defendant (Yes), and whether a list of johns kept by a pimp, who at the time also was a sheriff’s deputy, is a public record (Yes).
This probably is not the legacy Kraft envisioned for himself when he visited Orchids of Asia the morning of the AFC Championship Game, just a few weeks before he hoisted yet another Super Bowl trophy. But it will be a uniquely Florida legacy, perhaps the best revenge the Sunshine State could deliver upon another snowbird shocked that the laws of the state apply to him too.