Volume 26, Number 9 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,,r .-..i... 0. College ofJournalism and Communications U University ofFlorida
Judge stays order to release names Third official
of terrorist investigation detainees pleads no contest
WASHINGTON-AU.S. District government's power to arrest and hold
Court judge has issued a stay for an individuals is an extraordinary one," the
order that would have made public the judge said. She said she believed the
names of many of the detainees held in groups involved in the suit had
the government's terrorist expressed "grave concerns"
investigations. A Q Q over the potential abuse of
The Center for National VC C the government's broad
Securities Studies and 27 iRECORID S powers, including denial of
other civil rights and public counsel, discriminatory and
interest groups sued the
Department of Justice to get the names
under the Freedom of Information Act.
Judge Gladys Kessler ruled on Aug. 2
that the government should release the
names of detainees unless the detainees
themselves "opt-out" from disclosure.
The Justice Department appealed the
ruling and asked for a stay of the order.
Judge Kessler agreed to issue a stay,
whichwill remain in effect until a federal
appeals court rules in the case.
Judge Kessler rejected the
government's arguments that the names
should be automatically withheld for
privacy or safety reasons, and cited great
public interest in disclosure. "The
arbitrary detention and
mistreatment in custody.
In addition, she rejected the
government's assertion that the release
of names would interfere with ongoing
investigations and the withholding of
names under a broad court order. She
said that any names held under court
order must be specific.
However, the judge did allow the
government to retain some secrets,
including the dates and locations of
arrest, detention and release of
She also rejected the argument that
the First Amendment requires full
disclosure of those details. (8/2/02)
Rumsfeld wants to find employee who
leaked plans for invasion of Iraq
WASHINGTON-Defense Secretary unclassified CIA assessment of leaks
Donald Rumsfeld suggested at a press since the launch of the "war on
briefing that Pentagon employees who terrorism," Rumsfeld said, "I have
leaked an alleged U.S. plan to invade Iraq spoken publicly and privately, countless
to the Los Angeles Times and The New times, about the danger of leaking
York Times "ought to be injail." classified information. It is wrong. It is
He also encouraged Pentagon against the law. It costs the lives of
employees to reveal the name of the Americans. It diminishes our chances for
official who leaked the documents, success."
"I think that anyone who has a The CIA report indicated that Al-
position where they touch a war plan has Qaeda operatives monitor the United
an obligation to not leak it to the press or States and foreign media, and have
anybody else because it kills people," he learned a great deal about U.S.
said. counterterroism strategies through them.
In a separate memo attached to an (7/25/02)
County Commissioner charged with
violating the Sunshine Law pleaded no
contest to two misdemeanor violations.
Two other commissioners have already
been convicted and are awaiting
In exchange for agreeing to testify for
the prosecution, Mike Bass was allowed
to plead no contest to the Open
Meetings misdemeanor charges, and
prosecutors dropped all felony bribery,
money laundering and racketeering
Commissioners W.D. Childers and
Mike Smith are scheduled to be
sentenced on Sept. 18. Childers, a former
president who ACCESS
on one count MEETINGS
Florida's Open Meetings Law in June,
(Brechner Report, July 2002) also has
requested a new trial. Childers' lawyers
claim Childers was convicted on weak,
tenuous and inconclusive evidence.
They said that only one witness could
recall a telephone conversation in which
Childers discussed redistricting with
another commissioner. Additionally, they
said that they objected to Okaloosa
County Judge T. Patterson Maney's
interpretation of the Sunshine Law.
Childers was acquitted of two other
Sunshine Law violations, and the jury
was unable to reach a verdict on a fourth
charge. Childers faces an Oct. 7 retrial on
the fourth Open Meetings Law violation,
and a Feb. 10 felony trial for bribery,
money laundering and unlawful
compensation for official behavior. The
prosecutors have asked that Smith, who
was convicted on two counts of violating
the Sunshine Law, be sentenced to 60
days injail. (7/12/02 8/20/02)
ACCESS RECORDS CONTINUED
AGO: Public golf courses Law professor sues
t h ,n columnist, reader
must operate in the Sunshine columnist, reader
s ofor defamation
Bob Butterworth issued an Advisory
Legal Opinion stating that the activities
of a not-for-profit corporation that leases
property from Martin County for the
purpose of operating a public golf course
are subject to the requirements of
Florida's Government in the Sunshine
and Public Records Laws.
Stephen Fry, an attorney for Martin
County, requested the opinion about the
Martin County Golf and Country Club,
Inc., a not-for-profit corporation that
operates solely for the purpose of
operating a public golf course in Martin
Butterworth noted that the state
Supreme Court has recognized a
distinction between private entities that
provide services to a public body, and
those that provide services in place of
WASHINGTON Using provisions of
the USA Patriot Act, the FBI is
monitoring the reading habits of people it
Section 215 of the USA Patriot Act
gives the FBI power to y
obtain library and PRIV
bookstore records during
investigations of international terrorism.
To obtain warrants for these searches,
the FBI does not need to present
evidence of wrongdoing. Librarians and
booksellers are prohibited from revealing
that the FBI has requested records, under
the threat of prosecution. The federal act
the public entity. The activities of the
club "take place on publicly-owned
property and the private corporation is
performing a service that would
otherwise presumably be provided by the
county," said Butterworth.
Additionally, the lease agreement
between Martin County and the golf club
states, because of the public nature of
the golf club, "any and all of the Country
Club's records, including but not limited
to contracts, agreements, employment
contracts, loan documents, mortgages,
memorandum, reports, studies, court
records, or any other type of record, shall
be fully accessible to the County's
Butterworth said this combination of
factors subject the not-for-profit
organization to the Sunshine Laws.
overrides state confidentiality laws.
The law stipulates that these
investigations cannot be entirely based
on activities protected by the First
Amendment, such as speech and political
ACY organizing. However, they may
be partly based on such
activities, if some other
terrorism connection is alleged.
The American Library Association is
advising libraries to avoid keeping
unnecessary records. "They can't find
what we don't have," said Anne M.
Turner, president of the California Library
Fortune teller files
CLEARWATER- Sylvia Mitchell, a
Madiera Beach fortuneteller, filed a
lawsuit in Pinellas County Circuit Court
alleging Clearwaterviolated her First
Amendment rights and cost her business
by denying her the right to apply for a
permit to operate a fortunetelling
business within the city limits. The
ordinance bans fortunetellers as well as
professional palm readers, clairvoyants,
astrologers, character readers,
phrenologists and divine and mental
2 The Brechner Report September 2002
suit against city
healers from operating in the city.
Clearwater's ordinance conflicts with
county regulations, which allow such
businesses to operate with a special
In May 1998, City Attorney Pam Akin
recommended lifting the ban, since it
could violate protected free speech, but
the commissioners chose to leave the
ban inplace. Clearwater commissioners
are now said to be re-evaluating the ban.
ST. PETERSBURG -Law professor
Gary Minda of Brooklyn, New York, sued
St. Petersburg Times columnist Bill
Maxwell and the Times Publishing Co. for
libel, accusing the paper of "publishing
written statements that falsely and
maliciously accused" him of mental and
physical abuse during a custody battle
for his daughter. However, he also took
the unusual step of naming another co-
defendant: a woman who forwarded
Maxwell's columnvia e-mail.
According to papers filed in Pinellas-
Pasco County Circuit Court, Donna Marie
Kostreva forwarded Maxwell's column to
more than 120 L B
people, including LIBEL
school peers. Minda is asking for more
"The column was largely an
expression of opinion, which is protected
by the First Amendment," said George
Rahdert, an attorney for the Times. The
newspaper plans to fight the suit.
The column centered around a
custody battle between Minda and
Theresa Noelle Ponce, a 33-year-old U.S.
citizen of Mexican descent. When a DNA
test proved that Minda was the father of
her daughter, he sued for custody of the
child and won.
In Maxwell's opinion, Minda's
knowledge of the legal system gave him
an unfair advantage in the lawsuit. Ponce
was unsuccessful in appealing the
custody award, and is allowed visitation
with her daughter at the father's expense.
Copies of case opinions, Florida
Attorney General opinions, or
!,.g, i,,. ,i 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.
ACCESS MEETINGS CONTINUED
Attorney General says city needs to ity manager refuses
read or sign minutes in public to let firefighter refuses
read or sign minutes in public to let firefighters
cannot adopt a rule of procedure that
authorizes approval of minutes of a prior
public meeting without those minutes
being read or signed at a subsequent
meeting, according to an Advisory Legal
Opinion issued by Attorney General Bob
Butterworth. The opinion was released in
response to a question from James W.
Denhardt, Treasure Island city attorney.
Under current Treasure Island
procedures, all meetings of the city
commission are open public meetings, an
official audiotape is made at each
meeting, and the meetings are televised
and replayed on local cable television
throughout the week. The deputy city
clerk prepares the minutes of the meeting,
which are placed in the minute book, and
become public records upon their
inclusion in the book. Individual
commissioners then sign the minutes,
and an agenda item for the subsequent
meeting indicates that the minutes are
approved unless there are objections
from the commissioners, without being
Butterworth said the adoption of the
minutes in a city commission meeting
appears to be a step in the decision
making process which would be of public
interest. The opinion states, "a vote on
the concurrence and revisions of the
members should be taken at an open
meeting with the minutes and any
changes or revisions also discussed
during an open meeting at the time the
board adopts the minutes." (7/22/02)
Remarks prompt Bar complaint
ESCAMBIA COUNTY- SantaRosa
County Attorney Tom Dannheisser has
filed a Florida Bar complaint against Fred
Levin for remarks Levin made about
witness Willie Junior during the
Sunshine Law trial ofEscambia County
Levin represented Childers during the
misdemeanortrial. Junior, another
Escambia commissionerunder indictment
for Sunshine Law and felony money
laundering and bribery charges, testified
against Childers as part of a plea bargain
In an interview with WEAR-TV, Levin
called Junior a "rat fink." Levin told the
Pensacola News Journal that, "If Willie
was on the Titanic, he would dress like a
woman and jump on the first life boat."
Dannheisser, who is not directly
involved in the case, said that Levin
violated Bar rules that prohibit lawyers
from making out-of-court statements that
would influence potential jurors. (7/2/02)
Speedway limits reporters'
International Speedway and its parent,
International Speedway Corp., are limiting
access to news reporters at its sporting
events, including this July's Pepsi 400.
Officials for the speedway say that
only sports writers may visit with drivers
in the pits, interview fans in the stands or
attend press conferences in the media
The Orlando Sentinel applied for 20
media passes for the Pepsi 400 event.
Those received by the three news
reporters were restricted. News reporters
for the Daytona Beach News-Journal
were also restricted.
Gene Policinski, former USA TODA Y
sports editor and now deputy director of
the Freedom Forum's First Amendment
Center, said the speedway's attempt to
control the news related to the event was
"If there's news, there's nothing
preventing a sports reporter from
covering it," he said.
Motorsports Inc., places no restrictions
on news reporters at its events. (7/4/02)
hand out fliers
OCALA Ocala City Manager Susan
Miller says Ocala firefighters cannot
distribute fliers explaining their position
in a contract dispute.
"Any fliers handed out on city
property have to be approved by the city
manager," said Miller. "That's the code."
The code reads: "It shall be unlawful
to distribute or cause to be distributed
advertising or printed matter on any
public sidewalk, street, public parking lot
of city owned property unless prior
permission is obtained from the City
Manager or designee."
Miller will not give permissionto
distribute the flyers. However, Capt.
Robert Altman, chief negotiator for the
firefighters' union, said union members
planned to hand out the flyers in spite of
the ban. "Walking the sidewalks and
handing things out, according to our
attorney, it's not illegal to do," said
Union attorney Paul Donnelly said, "I
suggest that the city attorney has an
obligation to stop the city manager from
this unconstitutional effort of prior
restraint in violation of the right of
freedom of speech." (7/17/02)
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The Brechner Report September 2002 3
In fear of freedom: Access in the year following Sept. 11
In the days immediately following the Sept. 11
terrorist attacks, the United States government embarked
on a path of secrecy unprecedented in recent years. The
atmosphere of terror induced public officials to abandon
this country's culture of openness and opt for secrecy
as a way of ensuring safety and security. The U.S. media
did little to question this threat to civil liberties. Indeed,
The the international media
B k ag often provided a more Lucy
of the U.S. government's
By Lucy Dalglish attempts to control information.
For a few weeks after Sept. 11, the Reporters Committee was
besieged with phone calls from foreign reporters seeking
interviews. They asked potent questions: Why was the
American media swallowing everything the U.S. government was
handing them? Wasn't the American media free and
independent? What did I think about the American media being
the mouthpiece for George W. Bush? How could American
television networks agree to censor Al-Qaeda videotapes just
because Condoleeza Rice asked them to? The rest of the world
was watching, and chiding the American media for its smug
reliance on constitutional principles of a free and independent
press. "Where is your First Amendment now?" they asked.
A sophisticated body of First Amendment law has evolved in
this country over the past 200 years. But the basic values of
First Amendment law are simple: Citizens are better able to make
informed decisions at the ballot box when they have access to
complete, unbiased information. The only way to provide that
information is with a free and independent press that has the
ability to openly question government actions.
Although the stunned American media initially resisted
criticizing post-9-11 government secrecy, it was only a matter of
time before it returned to its challenging, independent self. But
by the time raging skepticism returned about eight weeks later,
the government had taken actions that made it dramatically more
difficult for the media to do its job. The Bush administration
quickly took a variety of actions designed to restrict information
from reaching the public, including:
U A directive from Attorney General John Ashcroft that
changes the interpretation of the federal Freedom of Information
Act to allow the agencies to deny access more often to public
records if a claim of invasion of privacy or a claim of
breech of national security can be alleged.
A proposal for secret prosecutions of non-
American citizens by military tribunals.
U Secret imprisonment of more than 1,200 non-
American citizens on alleged claims of immigration
violations or as material witnesses.
Disregard of a 1992 agreement between the media
Dalglish and the Pentagon that provided for pool coverage of
An Executive Order governing the release of Ronald
Reagan's White House records that circumvents the Presidential
Records Act and illegally limits access to records.
Restriction of access to reading rooms by several agencies.
U.S. military's purchase of exclusive rights to satellite
imagery of Afghanistan from Space Imaging, a Colorado-based
company, even though the government's own satellites
reputedly provide much greater resolution.
Removal of material from agency web sites by the Office of
Pipeline Safety, the Nuclear Regulatory Commission, the U.S.
Geological Survey, the National Imagery and Mapping Agency
of NASA and other agencies.
Restrictions on news photographers preventing them from
transmitting images of prisoners in Afghanistan.
Creation of a new "Office of Strategic Influence" (since
closed), created to try to influence public opinion abroad, that
was to have planted disinformation in foreign and U.S. media.
Some of these actions, such as the FOIA directive and the
Executive Order on presidential papers, probably would have
happened even without 9-11. Other actions, such as the secrecy
imposed on immigration courts, would have been unthinkable
before Sept. 11. Somewhere along the line, the Administration
and some members of Congress were able to convince
themselves and some members of the public that secrecy equals
safety. But no one has ever demonstrated that an ignorant
society is a safe society.
Lucy Dalglish is Executive Director of the Reporters
Committee for Freedom of the Press in Arlington, Va. The
Reporters Committee has prepared Homefront Confidential, a
extensive report on the access issues arising from September
11. It is available from http://www.rcfp.org.