Volume 25, Number 10 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom oflr I,.n..i .., College ofJournalism and Communications U University ofFlorida
Panel advises more electronicaccess FAMUtrustees
WASHINGTON A federal judicial courts be made available through the
committee recommended making civil PACERNet system. However, the
case files available electronically. committee also suggested that social
However, the committee said criminal security numbers and other personal
case files should not be available. identifiers be removed from the files
The Committee on A S before they are posted on the
Court Administration and ,A PACERNet system. The
Case Management committee did not support
examined privacy issues RECORDS giving electronic access to
related to electronic file criminal case files, saying that
access and solicited public comments. easy electronic access to the criminal
(Brechner Report, April 2001) files could be used to "intimidate, harass
The committee is recommending to and possibly harm victims, defendants
the U.S. Judicial Conference, which sets and their families." (816/01 8/24/01;
policy for the federal judicial system, the committee report is available at
that civil case files from all federal http://www.privacy.uscourts.gov/)
WASHINGTON- Sen. Richard
Shelby, R-Ala., once again is sponsoring
an anti-leak bill, which would prosecute,
fine and jail current and former
government employees who release
The bill would cover any classified
information, whether or not the
information affects national security.
Those convicted under the statute would
face up to $10,000 in fines and up to
three years in prison.
Former President Clinton vetoed a
similar bill last year, but Shelby is
hoping that a Bush White House will be
more receptive. Bush has not stated his
position on the legislation. A Sept. 5
hearing on the issue was postponed at
the request of Attorney General John
Ashcroft. (8/27/01 9/6/01)
TALLAHASSEE The Board of
Trustees for Florida A&M rejected a
proposal to begin its hunt for a new
president at a private search firm,
choosing to keep all parts of the search
process in the open.
Current President Frederick
Humphries suggested sending early
applications to a private search firm in
order to protect the applicants'
confidentiality. Applicants solicited by
search firms may have several
discussions with the firm doing the
hiring before officially applying.
The official application is a public
record, and filing the application often
starts public scrutiny of the candidate.
The trustees, however, decided to
have early applicants send material to
the university's Office of Equal
Opportunity Programs, until a search
firm is hired mid-September to handle
the rest of the search process.
"I think we need to be as open as
possible ... in the sunshine, plus the
sunshine," said board member Rev. R.B.
Magazineplansto appealrulingin favor offreelancephotographer
(Brechner Report, September 2001)
Supreme Court ruling concerning Like the Supreme Court, the appellate
freelancers and copyrights, the National court had to decide whether National
Geographic Society is planning to Geographic's collection of back issues
appeal a decision by 11th 1 T COHT onCD-ROM was a new
Circuit U.S. Court of 1 C.f1 work, which would give
Appeals, which ruled that freelancers control of
National Geographic infringed on the the rights, or a reproduction of a
copyrights of freelance photographer collected work, which would give the
Jerry Greenberg when it published back magazine control of the rights.
issues of the magazine on CD-ROM. While the CD-ROM contained exact
The appeals court issued its decision digital copies of the original print
before the U.S. Supreme ruled in New issues, the appeals court ruled that it was
York Times v. Tasini, a similar case in a new work because it offered a search
which the Court said that freelancers' program and because the CD-ROM
copyrights were violated when their starts with an animated clip.
work was republished in a database. Attorneys for National Geographic
are hoping that language in the Tasini
opinion that says the copyright law is
"medium-neutral" will help them win an
appeal based on an argument that the CD-
ROM is a revision of the magazine, not a
new work, because the articles, ads and
photographs appears in the same order
and in the same format on the CD-ROM
as in the paper edition. In the Tasini
case, the Supreme Court found that the
freelance articles posted in electronic
databases could not be considered a
reproduction because they had been
pulled out from their original context.
(3/26/01 8/28/001; Greenberg v.
National Geographic Society, 29 Media
Law Reporter 1599, May 8, 2001)
ATLANTA- In the wake of a
ACCESS RECORDS CONTINUED
TALLAHASEE Florida Auditor
General William O. Monroe suggested
abolishing a state fund designed to
improve public access to state records
because the fund is being used by the
Department of State for routine
The fund, which is earmarked for
technology to improve access to public
records, also was used by the
Department of State for more than
WEST PALM BEACH Drug maker
Novartis Pharmaceuticals Corp. is
challenging the state's Sunshine in
Litigation Act as part of its defense
against a personal injury lawsuit.
A Fort Lauderdale couple filed a
lawsuit against Novartis, formerly
Sandoz Pharmaceuticals Corp., over the
drug Parlodel, which the couple claims
caused the wife to have a stroke.
Florida's Sunshine in Litigation Act
requires judges to reveal public hazards
discovered during product liability
Two papers challenge
autopsy photo law
MIAMI The Orlando Sentinel and
the South Florida Sun-Sentinel filed a
challenge to the state law that closed
access to autopsy photos.
The papers are asking a judge to
declare the statute unconstitutional,
arguing that the statute is overly broad
and fails to accomplish its stated
purpose. The two papers filed requests
to see several autopsy photographs in
Broward County but were denied access
under the statute. (8/30/01)
Copies of case opinions, Florida
Attorney General opinions, or
!., i,. 'ii 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.
$900,000 in payments for rent, student
assistants and repairs during the 1999-
2000 fiscal year. Less than a third of the
fund $494,000 was spent on record
systems during that same time period.
The Legislature first authorized the
department to use the fund to pay for
approximately $1 million in operational
expenses in 1992-1993 and formally re-
approved using the fund for operational
costs during the 2000 session.
Monroe suggested eliminating the
fund since the money is used for
purposes beyond its original authority.
The department disagreed with the
audit's recommendations, saying in a
letter to the auditor "this trust fund
enables the department to fund
technology issues from a dedicated
funding source rather than fight for
general revenue dollars each legislative
p any challenges Sunshinein Litigation Act
If Parlodel is ruled a public hazard, the broad range of constitutional
the public will have complete access to challenges to the trial court's order and
documents and testimony about the the Sunshine Act... We find those
drug's development, testing and
marketing. If the courts determine that
Parlodel is not a public hazard, the
information about the drug is available
only to the suing couple and their
A Novartis constitutional challenge
to the Sunshine in Litigation Act was
rejected by a three-judge panel of
Florida's 4th District Court of Appeal,
which said "[W]e ... decline to entertain
challenges to be premature at best."
The appeals panel ruled instead on a
procedural matter in the case, saying the
trial judge should not have sent the
public hazard hearing to a special master
without the consent of Novartis.
The U.S. Chamber of Commerce and
the national Product Liability Advisory
Council filed friend-of-the-court briefs
on behalf of Novartis, which plans to file
an appeal for a rehearing. (8/16/01)
GAINESVILLE A judge refused to
unseal records in the case of prison
officers accused of murdering an
Lawyers for several papers, including
the St. Petersburg Times, the
Gainesville Sun and the South Florida
Sun-Sentinel, argued that releasing the
records would not affect the officers'
ability to receive a fair trial.
Attorney Penelope Bryan agued that
the judge could prevent the jury pool
from being tainted without keeping the
Judge Larry G. Turner, 8th Judicial
Circuit, refused to unseal the
documents, saying that releasing the
documents would create publicity that
would threaten the officers' rights to a
The eight officers are being tried in
the 1999 death of inmate Frank Valdes.
Four of them are scheduled to go on
trial October 12. (8/17/01)
TAMPA A lease-arrangement
agreement between an airport developer
and mall developers is not a public
record, a circuit court judge ruled.
The Weekly Planet sued to get a copy
of the lease-arrangement agreement for
an upscale mall being built on a portion
of property owned by the Tampa
Tampa businessman Richard A.
Corbett signed a lease with the aviation
authority to develop the property and
then signed a lease agreement with mall
developers to build the International
The paper wants a copy of
Corbett's agreement with mall
developers to see how much Corbett
is making from the mall compared to
how much he is paying the aviation
authority for the land.
Judge Sam D. Pendino, 13th
Judicial Circuit, ruled that Corbett's
lease-arrangement agreement with
the mall developers is between two
private groups and not subject to
Florida's Public Records Law.
Weekly Planet officials say the
newspaper will appeal the decision.
2 The Brechner Report U October 2001
Judge OKs Miami airportcontract
MIAMI Ajudge upheld Miami- claimed the commission met in private
Dade County's awarding of a baggage- to discuss bid proposals, and a judge
wrapping contract at Miami International issued an injunction to prevent Miami-
Airport, rejecting arguments that the Dade from executing a contract with
county commission violated the state's Secure Wrap. (Brechner Report, May
Open Meetings Law in making the 2001) Judge Thomas S. Wilson, 11th
contract decision. Judicial Circuit, ruled against Quick
Quick Packing, which placed fourth Packing and allowed the county to sigr
among the bidders, filed a lawsuit that the contract with Secure Wrap. (8/8/0
TAMPA State investigators found
that former Florida Agriculture
Commissioner Bob Crawford did not
violate the Sunshine Law in awarding
contracts for the state fair.
Ed Gregory, who is a friend of
Crawford's and a campaign contributor,
was given a three-year extension on the
state fair management contract shortly
before Crawford left the agriculture post
for a job as the executive director of the
Florida Citrus Commission. (Brechner
Report, May 2001) "We found no
evidence of any criminal conduct and no
evidence of a violation of the Sunshine
Law," said Jerry Bryan, a law
enforcement captain in the office of the
Inspector General. (8/3/01)
Judgeor ders schoolboardto allow taping
LARGO The public has a right to
videotape public meetings, a circuit
court judge ruled.
Suncam Inc. sued the Pinellas County
School Board because the board refused
to let Suncam tape a selection
committee meeting where construction
manager candidates were being
The board said that the candidates
would not perform well in front of a
camera and that the videotaping process
would be disruptive. School board
attorney John Bowen argued that the
public has a right to attend meetings but
does not have the right to videotape.
Judge James R. Case, 6th Judicial
Circuit, ruled that the school board
cannot prohibit the public from
videotaping a meeting. If the school
board wants to claim an exemption and
bar videotaping, it must schedule a
hearing, he ruled.
Case also ordered the school board to
pay Suncam's court costs and attorneys'
fees. (8/22/01; Decisions on file,
Suncam Inc. v. Pinellas County School
Board, July 30, 2001)
WASHINGTON- The U.S. Supreme
Court ruled that a mandatory advertising
campaign to promote mushrooms
violated the First Amendment's free
United Foods Inc., a Tennessee-based
mushroom producer, argued that the
mushroom industry's campaign forced
the company to pay for promoting its
rivals. Producers pay into a common
fund, which is used by the Mushroom
Council to generate generic advertising.
The Supreme Court in a 6-3 ruling
upheld an appeals court decision in favor
of United Foods.
"Just as the First Amendment may
prevent the government from prohibiting
speech, the Amendment may prevent the
government from compelling individuals
to express certain views or from
compelling certain individuals to pay
subsidies for speech to which they
object," according to the Court's
The Supreme Court ruled earlier that
joint advertisements are constitutional
in more heavily regulated industries
such as fruit production. The Court said
that the mushroom industry ads, unlike
those of the fruit growers, were not part
of a much wider marketing scheme.
Additionally, the Court found that the
mushroom market is less regulated than
the fruit market. (6/26/01 7/2/01)
WASHINGTON The Justice
Department subpoenaed the home
telephone records of an Associated
Press reporter from northern Virginia,
looking for the identity of a confidential
The source provided AP reporter
John Solomon with information about an
investigation of Sen. Robert Torricelli,
D-New Jersey. Justice officials want to
identify the source of the leak.
Critics claim that the Justice
Department is not following internal
guidelines that say subpoenas should
only be issued for reporters'
information when the information being
sought is essential to a criminal
investigation. The guidelines, which are
not legally binding, also require the
government to pursue all other
reasonable investigative routes first and
to notify the journalist whose records
are being sought.
The subpoena, which was approved by
newly confirmed FBI Director Robert S.
Mueller, asks MCI Worldcom to turn
over the records of all of Solomon's
incoming and outgoing home phone
calls. (8/27/01 8/31/01)
The Brechner Report U October 2001 3
Brechner Center for Freedom of Information
3208 Weimer Hall, P 0 Box 118400
College of Journalism and Communications
University of Florida, Gamesville, FL 32611-8400
http //www jou ufl edu/brechner/
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S. Camille Broadway, Editor
Jackie Thomas, Production Coordinator
Meghan Morris, Production Assistant
Stephen Harmon, Production Assistant
The Brechner Report is published 12 times a year
under the auspices of the University of Florida
Foundation The Brechner Report s a joint effort of
The Brechner Center for Freedom of Information, the
University of Florida College of Journalism and
Communications, the Florida Press Association, the
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of Newspaper Editors and the Joseph L Brechner
Endowment The Brechner Report thanks Barnett, Bolt,
Kirkwood & Long and Colleen Ahern for their
contributions to this issue
Terror shouldnottriumph over nation'sfreedoms
The terrors on Sept. 11 were so calamitous that they
threaten to shake us loose from our constitutional
mooring. A civil liberties catastrophe looms as citizens
surrender to fear, fury and frustration and as lawmakers
throw money and shards of the Bill of Rights at the
specter of terrorism.
Some of our elected leaders predict a gloomy future
The for freedom.
D I ,1- "We're in a new
ULc4 v 1. ; world where we have to
Pa Marebalance freedom and
By Paul McMasters security," said House
Democratic Minority Leader Richard A. Gephardt, D-Mo.
"We're not going to have all the openness and freedom we have
had." Senate Minority Leader Trent Lott, R-Miss., repeated the
warning: "When you're in this type of conflict, when you're at
war, civil liberties are treated differently." Even staunch First
Amendment advocates, haunted by the devastation in New York
City, near Washington, D.C., and the Pennsylvania countryside,
are tempted to temporize in the face of insistent calls to
suspend or re-examine our commitment to civil liberties.
The First Amendment fallout commenced within hours of the
airplanes crashing into their targets. FBI agents fanned out to
persuade Internet firms and service providers to hook up e-mail
sniffing software to monitor private citizens' e-mail. While the
desire to marshal all resources is understandable, there are
serious consequences for private speech and public discourse
when ordinary citizens fear that law enforcement officials with
broad powers to investigate and detain are listening in.
Government officials and policymakers immediately called
for measures that would chill public discourse, disrupt reporting
by the press, and interrupt the flow of information to the public.
They want an expansion of law enforcement powers to spy on
telephone and Internet traffic, to restrict the use of Internet
encryption products that thwart online monitoring of private
e-mail, to slow down and divert funds from the declassification
of secrets, and to force public libraries to reveal information
about patrons' use of their computers.
In Congress, prospects brightened for several troubling
measures, including: The Cyber Security Information Act, which
among other things would blow a gaping hole in the Freedom of
Information Act. Anti-leaks legislation, dubbed the "official
secrets acts" by those who are deeply concerned about
its impact on speech and the press and the flow of
critical information to the public. The Flag Desecration
Act, which would for the first time in the history of our
nation amend the First Amendment to prohibit burning
the flag as a form of political dissent. It would be
foolish to dismiss such developments as mere nibbling
at the edges of our rights. In fact, each nibble
diminishes our commitment to freedom and the
principles that distinguish our way of life from all others.
In such an atmosphere, voices of dissent grow silent, probing
questions by the press are viewed as unpatriotic and subversive,
and whistleblowers inside government with vital information are
quieted. In such an atmosphere, propaganda, rumor and paranoia
fester and infect. In such an atmosphere, citizens are denied
their place as full partners in their own governance.
By suspending some of our most precious principles, the
risk becomes not just terrorists whose hearts have grown rancid
with hate but also a citizenry whose hearts are filled with fear.
There are things we can and should be doing rather than
joining the stampede to ditch our rights. As columnist Thomas
Friedman put it: "We have to fight the terrorists as if there were
no rules and preserve our open society as if there were no
terrorists." As much as we wish to be safe forever from the
horrors of last week, we simply cannot protect freedom by
forsaking freedom. As much as we want relief from this time of
national duress, we simply cannot make ourselves more secure
by making fundamental freedoms less secure.
What an affront to the courage and heroism shown by those
who gave their lives in rescue efforts or in forcing hijackers
into a crash if we give in easily to fear or panic.
Fire from the skies and hatred from afar caused human
carnage and suffering at an unthinkable level. They dealt
terrifying blows to our financial institutions, our transportation
and communications systems, our political and military nerve
centers, and to a nation's sense of self and security.
Do we really want to add constitutional freedoms to that
sorrowful list of casualties?
Paul McMasters is the First Amendment Ombudsman
with The Freedom Forum foundation. A !,. ri,,,. version of
his column is available at http://www.freedomforum.org.