BRE C HNE R
Volume 24, Number 9 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Il .1.r... i,, U College ofJournalism and Communications U University of Florida
Newspapers win access to federal export records
TAMPA -- A federal Cuba from 1996 to 1999.
judge granted two newspapers The federal government
access to federal export A C C E SS agency refused to provide the
records that the Department documents, claiming they were
of Commerce had refused to RECORDS exempt from the Freedom of
provide. Information Act, because of a
The St. Petersburg Times and The FOIA exemption for statutes that require the
Tampa Tribune sued the Department of confidentiality of particular records. The
Commerce for access to records statute in question was the Export
showing the identities of those who were Administration Act of 1979, which exempted
granted licenses to export goods from information regarding license applications.
City denies records request for staffing
MARATHON -- The Marathon city request was denied, based on a claim of
manager has denied a newspaper's
public records request, claiming that
the city does not have any employees.
On two occasions, The Florida
Keys Keynoter requested names, titles
and salary of employees from city
manager Craig Wrathell and the city
council. In both cases, the information
employee confidentiality. Administrative
services, including those of Wrathell, are
provided by Moyer and Associates.
One councilmember supports disclosure.
"People are entitled to know what the people
working for the city are making or a close
whereabouts," said Councilman Randy Mearns.
Judge rules tobacco gag order overbroad
MIAMI -- A federal court held in
Dow Jones and Co. v. Kaye that a gag
order issued by a circuit court judge in
tobacco litigation was overbroad.
The gag order prohibited all parties
to the suit and their agents from
holding any public meetings or press
conferences relating to any of the facts
and issues of the case. It was part of a
class action lawsuit to recover damages
for diseases contracted as a result of
Six newspaper publishers, Dow
Jones and Co., Inc., New York Times
Co., Media General Operations, Inc.,
Miami Herald Publishing Co., Gannett
hi11itElrfimatibaiNetoxkC , a-r, a n-
Sentinel Co., Inc., filed for an emergency
temporary restraining order to prevent the
enforcement of the gag order.
The U.S. District Court in the Southern
District of Florida held that the gag order was
unconstitutional. The court balanced whether
the public's interest was served while
maintaining the tobacco companies' rights to
a fair trial. The court held that the gag order
was not necessary to ensuring a fair trial
because there was no proven threat. (4/5/00)
(Editor's Note: See related story on The
However, the EAA expired in 1994.
The federal government claimed that the
EAA was effective due to an executive
order that sanctioned the continuation of
the export control system.
Judge Richard Lazzarra disagreed. He
held that relying on an expired statute and
nonstatutory authority to withhold
records is "inconsistent with the
requirements of narrow construction and
full disclosure of FOIA." (6/28/00)
Insurer to pay
ST. PETERSBURG -- An insurance
company will pay a state Department of
Insurance official $2.55 million for
invading his privacy.
Banker's Insurance Company was
instructed by the company's top
McCarty, the deputy director of insurer
services. The executives blamed
McCarty for what it considered hostile
relations with state regulators. It hired a
private investigator to dig into McCarty's
personal life. The investigation revealed
that McCarty is gay, which was not public
The company's private investigator
pleaded guilty to wiretapping McCarty's
home. The investigation also included
videotaping and photographing McCarty.
The trial would have begun in July, with
Insurance Commissioner Bill Nelson and
former Insurance Commissioner Tom
Gallagher as the first two witnesses to
testify on McCarty's behalf. (6/20/00)
ACCESS RECORDS CONTINUED
Newspaper sues for public defender's office audit
ST. PETERSBURG -- The St. Clearwater operation was charged with Law, such records are open to the public
Petersburg Times sued the Pinellas- two felonies in connection with after a criminal case has concluded.
Pasco State Attorney to force access to McPherson's death, but the charges were The Church of Scientology contends
the autopsy photos of a woman who died dropped in June. the release of the records will harm its
in the care of the Church of Scientology. The autopsies are part of the right to a fair trial in the wrongful death
Lisa McPherson, 36, died in the care prosecutor's records in the case. lawsuit McPherson's family filed.
of the church in 1995. The church's According to Florida's Public Records (6/22/00)
Mayor defends plan for screening police chief applicants
LAKE PLACID -- The local mayor
had to explain her plans to screen
applicants for the police chief vacancy
after concerns of possible Sunshine Law
violations were raised by city council
Mayor Pauline Dionne defended the
use of out of town law enforcement
officials for the initial applicant screening
and assured council members that the three
officials were working independently of
each other, rather than as a committee.
Dionne said this was an attempt to expedite
the selection process. The final selection
will be left to the council. (7/12/00)
Board members violated Sunshine Law CONTINUED
IL ;A.L*4,+ '+.o-AL
NEW TAMPA -- The location and
format for a publicly advertised meeting
for the Heritage Isles Community
Development District was changed at the
last minute, prompting concern of
Sunshine Law open meetings violations.
Rather than hold the budget meeting at
a downtown law firm as previously
advertised, the meeting was conducted via
conference call from the home of attorney
Mark Straley who represents the Heritage
Isles board and three of the board's five
supervisors in Clearwater. Straley admitted
to changing the location of the meeting
without notifying staff members after a St.
Petersburg Times reporter showed up at
the law office.
"I have never heard of a board trying to
conduct a meeting that is flat out not where
the notice said it would be," said Jon Kaney,
a First Amendment attorney in Daytona
Company sues state for private meeting
TALLAHASSEE A private meeting informal opinion by the state attorney
held by the state Department of general's office that states some panels
Management Services to evaluate established by a state agency to evaluate
competing bids by two telecommunication vendors seeking a state contract are
companies has prompted one to file suit, subject to the Sunshine Law.
claiming the meeting violated Florida's The lawsuit seeks to invalidate the
Open Meetings Law. department's decision to negotiate with
Motorola Inc., claims the meetings Com-Net. The $300-million contract will
should have been open to the public, complete the expansion of a statewide
Company officials cite a March 1999 network for law enforcement. (7/21/00)
Home Depot sues strip club
BOYNTON BEACH -- The Home
Depot, a home improvement retailer,
sued The Adult Depot, a strip club, for
trademark infringement for using an
orange and white block-lettered sign
similar to its own logo.
The Home Depot contends that the use
of a similar sign and logo will degrade and
dilute its trademark.
The company seeks the removal of the
Adult Depot's signs and reimbursement of
attorney's fees. (6/6/00)
J\CI1.III L "1JLJL L.0
for secret recordings
HERNANDO -- A Hernando Beach
man was arrested for secretly recording
conversations between himself and a
Bobbie Lee Hodge, 52, was charged
with two felonies for intercepting calls
and revealing their contents. Hodge
delivered copies of the tapes and
transcripts to the Hernando County
Government Center. The conversations
were laced with profanity and County
Commissioner Pat Novy calling her
The charges against Hodge carry a
maximum penalty of five years in jail
and a $5,000 fine. (7/30/00)
Copies ofcase opinions, attorney
general opinions, or legislation re-
portedin any issue as onfile maybe
obtainedupon requestfrom the
Brechner CenterforFreedom oflnfor-
mation, College ofJournalism and
Communications, 3208 WeimerHall,
UniversityofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.
The Brechner Report m September 2000
Judge allows public viewing of teacher slaying video
VERO BEACH -- An appellate court
reversed a $4.7 million libel verdict against
a community activist that was awarded to a
former Vero Beach mayor. The award was
one of the largest in state history.
Former mayor Bill Jordan filed suit
against businessman Frank Zorc because
Zorc made negative statements in five
fliers about Jordan's part in a land deal with
Ajury decided Zorc should pay Jordan
$1.9 million in actual damages and $2.8
million in punitive damages.
The school surveillance video was
public record as evidence in a criminal case
against seventh-grader Nathaniel Brazill,
ruled 15th Circuit judge Richard Wennett.
Brazill was charged with first degree
murder following the shooting of teacher
The 4th District Court of Appeal
reversed the August 1998 award against
Frank Zorc because Zorc's comments
about Jordan were opinions and never
proved to be false two elements needed
to support a libel claim.
The court said that Zorc's comments
were protected political speech, and that
the circuit judge who heard the case should
never have let it come to trial.
Jordan's attorney said his client plans to
take his appeal of the court's verdict to the
Florida Supreme Court. (7/6/00)
Libel suit against newspaper dismissed
DAYTONA BEACH -- A circuit judge Circuit Judge Joseph G. Will issued a
dismissed a libel suit an attorney filed summary judgment against Carson because
against The News-Journal newspaper. the stories were not defamatory and did not
Kevin "Kit" Carson sued the paper in harm Carson's reputation.
1998 because of editorials and stories that Carson accused Judge Will of ignoring
focused on his two failed election the law in order to promote a personal
campaigns. Carson claimed the stories agenda. Carson said he plans to appeal the
contained false and defamatory statements, ruling. (6/16/00)
Sheriff's deputies file defamation suit
TAMPA -- Two Polk County
sheriff's deputies filed a defamation
suit against the department alleging
their First Amendment rights were
violated because they were forced to
subscribe to a particular theory about
a police officer's death.
Former homicide detectives Ann
Cash and Deanna Warren believed that
Officer Christopher Horner's death in
1998 was a suicide.
In their lawsuit, they contend that
a colonel in the sheriff s department
told them that if they didn't go along
with the theory that Horner's death
was a homicide, it would be a career-
ending decision. When they didn't
go along with the theory, they were
reassigned, according to the suit.
Homer was found shot to death in
an isolated area in 1998. He had
been shot in the back of the head
with his own pistol. Homer and his
wife were under investigation for
welfare fraud at the time of his
The investigation was dropped
after his death. (8/2/00)
WEST PALM BEACH -- The public
and the media had an opportunity recently
to view the videotape of a Lake Worth
Community teacher being shot by a
student, but were banned from reproducing
the tape for broadcast or distribution.
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
Sandra F. Chance, J.D., Director/Executive Editor
Jane Inouye, Editor
Jackie Thomas, Production Coordinator
Allyson Beutke, Production Assistant
Bill F. Chamberlin, Ph.D., FoundingDirector
The Brechner Report is published 12 times a year
under the auspices of the University of Florida
Foundation. The BrechnerReport is a joint effort of The
Brechner CenterforFreedom ofInformation, the
University of Florida College of Journalism and
Communications, the Florida Press Association, the
Florida Association of Broadcasters, the Florida Society
of Newspaper Editors and the JosephL. Brechner
The Brechner Report U September 2000 3
Barry Grunow last May.
The grainy videotape was shown at the
Palm Beach County Courthouse's jury
assembly room. Those who viewed the
tape were required to sign a form pledging
not to reproduce the tape. (7/8-15/00)
Use inmate's legal
name says judge
ATLANTA -- Prison officials
violated a death-row inmate his First
Amendment free exercise of religion
rights when they refused to use his legally
changed name on his prisoner
three-judge panel of the 11th U.S. Circuit
Court of Appeals.
In 1993, Kenneth Quince legally
changed his name to Rasikj Abdul Hakim.
Hakim is serving a death sentence for a
murder in 1979. After prison officials
refused to recognize his new name, Hakim
sued in federal court in 1995.
On appeal, the judges ruled that prison
officials could not show a reasonable
interest in prohibiting the use of religious
names on prisoner identification cards.
Court reverses $4.7 million libel award
Smoke cleared from tobacco litigation
A state judge's gag order banning any public
discussion by the parties in the only class
action tobacco trial to date was
unconstitutional, a federal judge has ruled.
On October 20, 1998, Circuit Court Judge
Robert P. Kaye entered the gag order, which
prohibited any public comment by parties and
their agents in Engle, et al. v. R.J. Reynolds Gregg Thomas
Tobacco Company, et al. Despite the intense
public interest in the tobacco litigation given the potentially
massive judgment and its effects upon the tobacco industry and
economy as a whole the
The trial court issued the
B ack P age blanket gag order without
providing the media an
By Gregg Thomas and opportunity to be heard.
Rachel Fugate On March 10, 2000,
several media plaintiffs,
including Dow Jones & Company, The New York Times
Company, Media General, Miami Herald Publishing Co.,
Gannett, and the Sun-Sentinel sued in federal court to have the
gag order set aside.
In lifting the gag order on April 5, 2000, U.S. District
Judge Adalberto Jordan readily concluded that the blanket gag
order violated the First Amendment. Before a court may
enjoin the speech of trial participants, the court "must
specifically find, based on the available evidence, that the
fairness of the trial is seriously threatened by publicity and
that nothing short of a gag order will suffice to protect the
litigants' right to a fair trial." The court found that there was
"no finding that the publicity,... or anything else seriously
threatened the fairness of the trial," and stated that there were
"no findings as to whether measures short of a gag order would
suffice to combat the perceived threat."
The federal court also found that the order was overbroad,
banning too much speech and lasting too long. Instead of
limiting the gag order to "extrajudicial statements that would
in fact be likely to affect the fairness of the trial," Judge Kaye
forbid the trial participants from making any public statement
that pertained to the court proceedings.
Additionally, the gag order contained no
expiration date, and so effectively imposed a
"permanent injunction that forever bars the
litigants and their counsel from commenting on
a significant case." This broad ban, Judge
Jordan found, was not supported by the record
Rachel Fugate and is unconstitutional on its face.
Judge Jordan then added an important message
for other judges considering gag orders: "[s]o long as the
fairness of the trial is not unduly jeopardized, it is not for the
judiciary to determine whether the public has enough news
about the trial or whether the trial participants' "spin" i.e.
their opinions and impressions would be interesting to the
The tobacco litigation is unprecedented. It is the only
lawsuit by smokers against the tobacco industry that has ever
proceeded to trial as a class action and has the potential for one
the largest judgments in history.
The class of plaintiffs includes between 225,000 to
850,000 present and former Florida smokers. The defendants
include all of the industry giants: R.J. Reynolds Tobacco Co.,
Philip Morris Inc., Brown & Williamson Tobacco Corp.,
Lorillard Tobacco Co., Liggett Group, Inc, Council for Tobacco
Research, and the Tobacco Institute.
The Florida courts ruled that the jury could award punitive
damages in a single lump sum for all litigants in the class,
rather than assess them individually one smoker at a time. This
ruling rendered the tobacco defendants vulnerable to a
potentially massive and possibly industry shattering punitive
damage verdict. Indeed, on July 14, 2000, the jury awarded the
class $145 billion in punitive damages the largest damages
award in U.S. history.
Judge Kaye has appealed the ruling to the Eleventh Circuit.
Gregg D. Thomas and Rachel E. Fugate are media
lawyers at Holland & Knight LLP, which represented the
plaintiffs in Dow Jones v. Kaye.