Volume 29, Number 5 A monthly report of mass media law in Florida Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida May 2005 Paper appeals verdict, damages in defamation case PENSACOLA – Attorneys for the implying that he murdered his wife. The jury awarded the sum for actual Pensacola News have requested that a Anderson, who owns a road-paving damages in December 2003, but it could not circuit judge overturn an company in Lake City, asserted agree on a punitive damage award. A new $18.28 million verdict against that although he had fatally shot trial was ordered to determine the punitive the newspaper. his wife, the phrase “shot and award. The case arose after the LIBEL killed” in the article implied that it Defense attorneys contend that the newspaper published a 1998 was murder. Two sentences later entire case should be thrown out because article that businessman Joe Anderson in the story, it was reported that she died Anderson failed to prove the statement was Jr. claimed placed him in a false light by as a result of a hunting accident. false. Originator of Citizens suits not allowed under state Sunshine federal open meetings provision SAN FRANCISCO – The open meetings of the Federal Judicial Law dies at 91 meetings provision in the Federal Qualifications Committee. TAMPA – Former Democratic state Advisory Committee Act does not A unanimous court ruled that a 2001 senator J. Emory Cross, known as the allow for lawsuits by U.S. Supreme Court decision, “Father” of the state Sunshine Law, died private citizens, according which held that courts may in late March. to a recent ruling by the not assume that individuals Cross introduced the open U.S. Court of Appeal for ACCESS may sue unless Congress has government legislation multiple times, the Ninth Circuit. MEETINGS clearly expressed that such a garnering the support The decision affirmed a remedy exists, controlled the of only one other federal trial court’s dismissal of a case. senator. Initially, the lawsuit by California attorney Patrick J. Manshardt has not decided whether bill never made it out Manshardt, who was seeking access to he will appeal the decision. of committee. But, the legislator continued to fight for more than a decade to Committee ready to recommend J. Emory Cross pass the legislation in 1967, which requires electronic access to court records government meetings to be open to the TALLAHASSEE – Electronic access to information available via the World Wide public. court records should be available to the Web. This includes Social Security The law was the first of its kind in the public, according to the draft report of a numbers, credit card information and nation and has since become the model committee appointed by the Florida medical records. for similar acts nationwide. Supreme Court. The responsibility of redacting exempt “I just feel very strongly about the The group, composed of information will fall on people’s right to know,” he once told judges, attorneys and court attorneys, clerks and anyone reporters. clerks, preliminarily COURTS who seeks to file information Cross represented Gainesville while in recommends that the public with the court. both chambers of the state legislature be allowed to access records via the Other confidential, but not exempt and served as the prosecuting attorney Internet despite recent investigations into information, such as trade secrets or for Alachua County. information misuse by data wholesale divorce allegations, would be released He was inducted into the Florida companies such as ChoicePoint, Inc. subject to a judge’s ruling. Freedom of Information Hall of Fame, However, the committee has suggested The committee’s final report to the housed in the Brechner Center, in 1997. that limits be placed on the amount of Supreme Court is due on July 5. ACCESS RECORDS CONTINUED Appeals court ruling favors Key West publisher KEY WEST – A Florida law Cooper, who edits a weekly newspaper, criticizing Dillon for not reprimanding an prohibiting the release of information will be able to continue a civil rights suit officer who had lied under oath. from internal investigations of law against former Key West Police Chief The court said that the law is enforcement officers is unconstitutional, “Buz” Dillon. unconstitutional because it discriminates according to a ruling by the U.S. Court of Cooper was arrested after he against speech regarding pending Appeals for the 11th Circuit. published an article about an investigations of law enforcement officers As a result of the court’s decision, investigation by the Florida Department merely because of its content, in violation Key West publisher Dennis Reeves of Law Enforcement and an editorial of the First Amendment. Judge restricts LIBEL access to photos Pennsylvania neutral reportage case of autopsy, scene will not be heard by Supreme Court DAYTONA BEACH – Circuit Judge J. WASHINGTON – The U.S. Supreme privilege exists in Pennsylvania. David Walsh ruled that photographs and Court declined to hear a Pennslvania In the case, two elected officials sued video from the crime scene of the Deltona case involving the neutral reportage a local newspaper after it published mass murders should be withheld from privilege. another elected official’s allegations that the public. Neutral reportage is recognized by the two were homosexual. Walsh reserved his ruling, allowing courts in several states, including those In October, the Pennsylvania High the attorneys time to compile a list of in Florida, as a defense for journalists Court ordered a new trial to determine the materials to be sealed in the case. involved in defamation cases. liability of the newspaper’s owners, In his decision, Walsh acknowledged It provides reporters the ability to publishers and reporters for publishing that public disclosure was important. accurately and fairly report defamatory the defamatory statement. “I can’t keep this case sealed forever,” statements made by a reputable public The newspaper had originally asserted he said. “There’s a right of access.” figure or organization without fear of a neutral reportage as a defense to liability The pictures, which showed the dead lawsuit. in the case. victims after they were brutally beaten The Supreme Court’s decision lets A jury had already ordered the elected and stabbed, would likely be prejudicial stand a ruling by the Pennsylvania official to pay $17,500 each to both of the to both the state and defense, according Supreme Court, which held that no such defamed officials. to attorneys for both sides. Motions had been filed by both parties to seal the records. State Attorney John Tanner claimed that release of the photos would re-victimize the families of the deceased while defense attorneys argued that some videotapes and documents would make it difficult to find an impartial jury. DECISIONS ON FILE Copies of case opinions, Florida Attorney General opinions, or legislation reported in any issue as “on file” may be obtained upon request from the Brechner Center for Freedom of Information, College of Journalism and Communications, 3208 Weimer Hall, P.O. Box 118400, University of Florida, Gainesville, FL 32611-8400, (352) 392-2273.

2 The Brechner Report „ May 2005 CENSORSHIP ACCESS RECORDS CONTINUED School officials Officer settles records lawsuit NEW PORT RICHEY – A former police officer because of a 1997 trash censored police officer will receive more than conviction for drunk driving. $45,000 to settle two lawsuits he filed Uttley argued that the city failed to student paper against the city. provide access to the settlement The city council agreed to pay former negotiations of the 1999 lawsuit, which he PALM BEACH – Custodians at employee Arnold Uttley the sum after he claimed violates the Sunshine Law. Wellington High School collected alleged that city officials did not address Neither Uttley nor the city council copies of the student newspaper, the his public records requests. admitted to any wrongdoing in their Wave, in garbage bags after the school He also filed a separate suit claiming agreement. principal ordered that students be that the city violated the Open Meetings In addition to paying Uttley the prohibited from possessing copies of law when it settled a 1999 lawsuit he damages, the city will provide employees the February issue. filed after he was not reinstated as a with training on the Sunshine Law. Principal Cheryl Alligood asked the newspaper staff to remove an article on virginity, saying it was disruptive SHIELD LAWS and inappropriate in a school environment. U.S. Supreme Court refuses to hear In protest, the students distributed copies of the original, uncensored case regarding reporter’s privilege newspaper along with copies of the censored version. WASHINGTON – A decision to civil rights for failure to adequately School officials decided that any quash subpoenas issued to two investigate the murder. student caught with a copy of the journalists involved in a civil rights case They sought the testimony of two newspaper would be suspended. will stand after the U.S. Supreme Court journalists, including an Associated Press They ordered custodial staff refused to hear the case. reporter, in connection with the civil suit. members to confiscate all copies of the In Donohue v. Hoey, the U.S. Court of The U.S. Supreme Court has not decided th banned newspaper that were on Appeals for the 10 Circuit affirmed a a case involving the reporter’s privilege school property. lower court ruling, saying that the since its 1972 ruling in Branzburg v. Hayes. Since the incident, school officials plaintiffs had failed to explain how the That decision left the federal courts split have instituted a prior review policy. trial court erred in quashing the over whether the privilege should be In 1987, the U.S. Supreme Court subpoenas. recognized. The Court also disagreed on upheld the constitutionality of prior The plaintiffs, parents of the murdered the scope of First Amendment protection review for legitimate pedagogical Buffy Rice Donohue, sued the former for reporters who withhold the identity of concerns in high schools in police chief, claiming a violation of their confidential sources from the courts. Hazelwood School District v. Kuhlmeier. BACK PAGE CONTINUED proposed statute also covers any of the traditional journalists ensures that media firm’s parent, subsidiary or responsible news veterans who have an affiliate entity. The persons covered by appreciation for news values and ethics Brechner Center for Freedom of Information the proposed Act resemble the classes will continue to disseminate news and 3208 Weimer Hall, P.O. Box 118400 of protected persons named in virtually information in the interest of the public. In College of Journalism and Communications all of the existing state shield laws. But addition, it ensures that there will be a University of Florida, Gainesville, FL 32611-8400 http://www.brechner.org this kind of stated coverage for the privilege available to protect confidential e-mail: [email protected] company’s parent, subsidiary and relationships with sources so that information continues to flow freely from Sandra F. Chance, J.D., Exec. Director/Exec. Editor affiliate is rare. Nevertheless, its Amy Sanders, Editor inclusion here recognizes the realities of sources to journalists and from journalists Alana Kolifrath, Production Coordinator a converged media environment, where to the public. Any attempt to broaden the Amanda Groover, Production Assistant sources and information may be shared scope of the privilege to include non- Anaklara Hering, Production Assistant Alex Sarria, Production Assistant by employees at several different closely journalists opens the shield law to related companies. Wisely, the authors possible judicial nullification. A shield law The Brechner Report is published 12 times a year under the auspices of the University of Florida of the bills have narrowed the coverage extended to the masses can no longer Foundation. The Brechner Report is a joint effort of area of the privilege to include rightfully be called a privilege. The Brechner Center for Freedom of Information, the traditional news media outlets, which University of Florida College of Journalism and Laurence B. Alexander is a Professor of Communications, the Florida Press Association, the generally stand in the greatest need for a Journalism in the College of Journalism Florida Association of Broadcasters, the Florida privilege because of their extensive and Communications at the University of Society of Newspaper Editors and the Joseph L. transactions with confidential sources Brechner Endowment. Florida and has published numerous and information. That way, protecting articles on shield laws. The Brechner Report „ May 2005 3 Federal proposal would protect journalists Journalists could be getting at least the same protection landmark U.S. Supreme Court decision in Branzburg v. in federal judicial proceedings that they enjoy in 31 states Hayes in which the High Court refused to allow a and the District of Columbia under bills filed during the journalist’s privilege to avoid grand jury testimony based current session of Congress. Additionally, if the proposals on the First Amendment. remain relatively intact, news gatherers could get an Altogether 31 states, including the Sunshine State, absolute privilege in federal courts, bringing greater have passed statutes to protect journalists from revealing protection than they enjoy in most state courts. their sources in state courts and nearly all of the Over the last few months, separate bills have been filed remaining states have allowed some semblance of a in Congress to give journalists a privilege against having privilege in their courts. However, there is currently no Laurence statutory protection for journalists who are subpoenaed to to reveal confidential sources and information. Alexander In February, companion bills were filed in the House by testify in federal court, except in those circuits that Reps. Mike Pence (R-Ind.) and Rich Boucher (D-Va.) and in the expressly recognize a common law privilege for journalists. Senate by Richard Lugar (R-Ind.). Both bills, titled the “Free Flow To be sure, federal shield laws were proposed in Congress in the of Information Act,” would provide journalists with an absolute 1970s and 1980s, but to no avail. This time, federal lawmakers were privilege against compelled disclosure of their sources. It would prompted by a string of reporters who recently were threatened also protect journalists from being subpoenaed by any federal with jail sentences in at least three different federal jurisdictions. government entity to testify or reveal any other information unless The bills’ sponsors feel that compelling reporters to reveal sources all other sources for the information had been exhausted and the would be detrimental to the public interest in government access. material was essential to the underlying court case or investigation. “Without the promise of confidentiality, many important conduits Like virtually all of the state shield laws providing journalists a of information about government activity would be shut down,” Pence has said. The privilege to refuse to testify, the proposed federal shield law allows The bill would also protect journalists from having other records journalists to keep secret the held by third parties—such as telephone records held by a phone Back Page identities of their sources and company or e-mail tracked by an Internet service provider—turned By Laurence Alexander documents. Moreover, the federal over without their knowledge. The bill would require that bills would give substantial journalists be notified before such a subpoena is issued and be protection for news gatherers’ sources that rely on confidentiality given an opportunity to contest it prior to the time the records must agreements when they pass valuable sensitive information to be turned over. The need for such a provision should be evident. members of the working press. The specific terms of the proposed Its absence would enable the subpoenaing entity the opportunity law would prohibit compulsory disclosure by a journalist “in any to circumvent the intent of the shield law by indirectly accessing proceeding or in connection with any issue arising under federal the desired data through phone and e-mail records. Therefore, it is law.” To get the court to make an exception to this rule, a federal necessary to limit such a move initially before any valuable news official seeking the information would have to prove by clear and sources are harmed. convincing evidence that the information could not be obtained The bill would cover traditional news media outlets, such as elsewhere or that the information sought was essential to the newspapers, magazines, books, periodicals, broadcasting, cable, underlying court case or investigation. The exception aside, satellite, news agencies and news wires. It specifically covers any applying the privilege to any proceeding apparently would enable person who works for any of these businesses, specifically journalists to escape testifying before federal grand juries when the someone who “gathers, edits, photographs, records, prepares or sought-after information can be obtained from another non-news disseminates news or information for such an entity.” The source. Such an exemption would go beyond the limits of the continued on page 3.