Volume 27, Number 5 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,, ~... 1.. .,, College ofJournalism and Communications U University ofFlorida
TAMPA A federal judge has
delayed the release of grand jury
transcripts in the Aisenberg case after
prosecutors filed a motion in U. S. District
Court to delay release, allowing time for
an appeals court to review the case.
The Aisenberg's daughter Sabrina
disappeared in 1997. Hillsborough
County sheriff's investigators suspected
the couple and got a judge's permission
to use listening devices in the
Aisenberg's home. Prosecutors later
charged the couple with lying to
investigators, but the wiretaps which
the couple ACCESS
were thrown RECORDS
when the judge found them to be
The U.S. District Judge Steven D.
Merryday originally ordered the grand
jury transcripts to be unsealed, saying
the public has the right to know how
prosecutors and detectives erred in the
investigation of Steve and Marlene
Aisenberg. Merryday later ruled that the
transcripts not be made public until at
least May 6.
The Aisenberg's attorney argued the
couple deserves to see the secret grand
jury records. But prosecutors argued
that keeping the records shut would not
hurt the Aisenbergs and that "the public
interest in grand jury secrecy outweighs
any interest in immediate disclosure."
"We're obviously concerned about
the grand jury material being released,"
said Steve Cole, U.S. Attorney's Office
spokesman. "Obviously, there is an
ongoing investigation. It's very clear
that it is ongoing."(3/13/03 4/5/03)
Supreme Court justice bans
media coverage of award event
CLEVELAND Supreme Court Justice speech if there are limits to its
Antonin Scalia banned the media from distribution?"
attending a speech he gave after The club chose Justice Scalia because
accepting an award for supporting free he has "consistently, across the board,
speech. had opinions or led the charge in support
Scalia was awarded with the City of free speech," said James Foster, the
Club's Citadel of Free club's executive
Speech Award. The City FI tT director. The award
Club usually tapes 1 FT1 applauded Scalia for
speakers for broadcast on AMENDMENT protecting free speech
public television, but the in several Supreme
justice insisted that television and radio Court cases, including a
coverage be banned, vote to strike down a Texas flag-burning
Television reporters were permitted to ban.
see Justice Scalia accept the award Scalia also prohibited cameras that
before he gave his speech. Scalia did not same week from a lecture he gave at John
take any questions from reporters. Carroll University, where he spoke about
The ban "begs disbelief and seems to the constitutional protection of religion
be in conflict with the award itself," C- and how the government has room to
SPAN vice president and executive scale back individual rights during
producer Terry Murphy wrote in a letter wartime without violating the
last week to the City Club. "How free is Constitution. (3/19/03)
Former club chairman pleads
no contest to sunshine violation
MIAMI -Former chairman of the asked Argiiello to write a letter to the
Country Club ofMiami Community county asking if the council could
Council, Gus Exposito, has pleaded no reconsider that application.
contest to violating the Sunshine Law for Exposito claimed he wanted
questioning another council to make sure there was no
member after a controversial A C C E SS misunderstanding about
vote. the vote.
The plea ended an eight- MEETINGS "All I was asking was a
month probe into Exposito's legal question. If I had
questionable behavior when he asked
another member after a meeting to
reconsider his vote for a housing project
planned for a vacant 73-acre area.
Exposito confronted council member
Stuart Argiiello after the meeting,
insisting Argiiello, who was the swing
vote against the project launched by
Exposito, had misunderstood the issue.
Two weeks after the meeting, Exposito
thought it was in violation of the
Sunshine Law, why would I have been
speaking to him so openly in front of
everyone?" Exposito said at the time.
Exposito was sentenced to six
months' probation which will be
served concurrently with the 12-month
probation sentence he received for
pleading guilty to perjury in a separate
ACCESS RECORDS CONTINUED
LEON COUNTY A circuitjudge
denied The New York Times Company
access to records held by the Department
of Juvenile Justice, ruling the requested
records fell under an exemption to the
Public Records Law.
The New York Times Company made a
written public request for the
department's records regarding Lionel
Tate, who was convicted of murdering
his six-year-old playmate in January 2001
and sentenced as an adult to life in
prison. The department refused to
release the requested records, claiming
they were exempt from public inspection
under Section985.04, Florida Statutes,
providing that "records in the custody of
the Department of Juvenile Justice
regarding children are not open to
inspection by the public."
The company argued that the
exemption did not apply because the
statute under which Tate was sentenced
provides that when a child of any age is
indicted by a grand jury and found to
have committed a crime punishable by
death or life imprisonment, such child
shall thereafter be handled "in every
respect as if an adult," and records
regarding him are not records regarding
"a child" within the meaning of the
Circuit Judge Janet E. Ferris ruled that
Tate is a child under the definition
provided in section 985.03(6), and the
Department of Juvenile Justice records
regardinghimare exempt. (3/20/03)
Copies of case opinions, Florida
Attorney General opinions, or
!,., 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 ofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.
DCF releases list of found children
LEON COUNTY- The Department of
Children and Families released a list of
missing children who have been found
since fall in response to a lawsuit
brought by the South Florida Sun-
Leon Circuit Judge Nikki Clark ordered
the DCF to release the 26-page document
which disclosed information showing the
condition of the children, where they had
been and where they were placed after
they were found. In many cases,
however, the list provides few details
about the children. Some of the names
appear without any information and some
appear only with the word "closed"
under the name.
The DCF has been criticized for losing
children since April of last year when a 5-
year-old named Rilya Wilson
disappeared. After Sun-Sentinel
reporters were able to locate nine of the
children the DCF had been unable to
find, Gov. Jeb Bush created a task force
Welaka mayor pl
to Sunshine Law
WELAKA Welaka Mayor Gordon
Sands pleaded no contest
and paid a $500 fine after A C C
being charged last year
with violating the Sunshine MEETI1
The charge stems from a discussion
Sands reportedly held with another town
council member to discuss nominating
council member Curtis Williams as
Judge rules group
BARTOW Ajudge ruled that all
communications of a Florida Department
of Citrus peer review group must be
documented by a court reporter in case
they fall under the Sunshine Law.
Judge Harvey Kornstein of the 10t
Judicial Circuit Court, issued the ruling
after The Ledger of Lakeland filed a
lawsuit against the department for not
releasing records and closing meetings of
a peer review group concerning a study
of the Citrus Department's generic
advertising program being conducted by
a Texas research firm.
The attorney representing the Florida
Citrus Commission claims the requested
records do not fall under the Sunshine
Law because the peer review group does
not have decision-making power.
to find the missing children and ordered
the DCF to get permission to bypass
confidentiality laws and release the
names and photos of the lost youths.
Once the children were found, the DCF
claimed that confidentiality reapplied and
could not release information about the
children. The Sun-Sentinel sued for the
records in November.
Although the records were released,
the newspaper's general counsel claims
they are vague and contain errors,
lacking important information such as the
health conditions of the children.
"If a missing child is found pregnant,
malnourished and on drugs, that is
precisely the type of information that the
court envisioned would be released,"
wrote David Bralow, the newspaper's
general counsel, in a letter to the DCF.
He called it incredible that "these few
pieces of paper represent the only public
records" that the agency has on the
eads no contest
council president at a public meeting.
Prosecutors and defense
- SS attorney James McCune both
asked County Judge Peter
NGS Millerto withhold
adjudication, which means
Sands will not have a criminal record.
Miller equated Sand's civil infraction
to "a speeding ticket," and did not find
him guilty. (2/22/03)
must be recorded
Attorney Susan Bunch, representing The
Ledger, asked the judge for a temporary
injunction allowing the newspaper to
attend the closed meetings and have
access to records due to the timely
nature of Sunshine Law protection.
While he did not grant the injunction,
Kornstein did order a court reporter to be
allowed into the meetings to record the
peer review group's activities until he
could make a final ruling on the matter.
Kornstein said he needed time to examine
both sides to make a proper decision on
whether or not the meetings fall under
the Sunshine Law.
"This is very difficult to get a grasp
on," Kornstein said. "It's like Jello the
tighter you squeeze, the more it slips
2 The Brechner Report May 2003
Circuit Court upholds suspension for students
GAINESVILLE- Athree-judge panel
of the 11 h U.S. Circuit Court of Appeals
upheld the suspensions of two Santa Fe
High School students for displaying a
Confederate flag on school premises after
previously being told not to.
The students, Franklin Jay Scott, Jr.
and Nicholas Thomas, filed a lawsuit
against the School Board of Alachua
County claiming the discipline imposed
by the principal violated their First
Amendment right to symbolic speech.
The District Court granted the school
board's motion for summary judgment
and sent the case to the Court of
The appeals panel wrote in its
decision that the district court properly
dismissed the case against the school
An unwritten ban on the Confederate
flag by the Santa Fe High School
principal was not an unconstitutional
restriction on the student's free-speech
rights, Judge Gerald Tjoflat wrote. The
decision also noted how school officials
presented evidence of racial tensions and
racially based fights at the school in the
months leading up to the suspensions.
"This First Amendment freedom of
expression case stands against the
unique backdrop of a public school,"
Tjoflat said. "Short of a constitutional
violation based on a school
infringement on a student's speech or
other expressions, this court will not
interfere with the administration of a
school." (3/20/03 3/22/02).
Appeals Court strikes down "Scarlet Letter" law
WEST PALM BEACH A state
appellate court struck down Florida's
"Scarlet Letter" adoption law, ruling it
violated birth-mothers' right to privacy
by requiring them to list personal
information in newspapers.
The law has been blamed for a
decrease in adoptions throughout the
state. The law's constitutionality was
challenged at a February hearing before
the 4th District Court of Appeal, but the
Florida Attorney General's Office refused
The law was passed by lawmakers in
October 2001, and makes no exception for
rape victims or minors. All mothers who
wished to give up their child for adoption
had to run an ad once a week for four
weeks in a newspaper posting their name,
age and description, along with
descriptions of any men who could have
been the father.
The appellate court ruled that the law
violated a "fundamental right to privacy"
by identifying the mother and her child in
"such a personal, intimate and intrusive
The attorneys for the four birth
mothers challenging the law said they
were not surprised by the decision.
Four college students sued for
The Recording Industry Association possible, saying the sites are in violation
of America has sued four college of copyright and fair-use laws and take
students at three universities for running money away from artists and record
file-sharing Internet sites allowing companies.
students to infringe "We want this
on copyrights. C OPYRI GHTi infringement stopped
The suits ask ---- for good," said Matthew
three U.S. district J. Oppenheim, the
courts for permanent injunctions to shut industry's senior vice president for
down the file-sharing systems on the business and legal affairs. He added the
networks at Princeton University, lawsuits would not be dropped if the
Rensselaer Polytechnic Institute in Troy, systems were shut down. "Frankly, we
N.Y., and Michigan Technological are hopeful this round of lawsuits will
University in Houghton, Mich. The suits send a message to others that they
also seek the highest damages allowable should immediately cease and desist."
by law, which could be up to $150,000 per The industry has sued Web sites and
copyright infringement, individuals in the past for file sharing,
The music industry blames the free file but this is the first time the organization
sharing for its current depression in has commenced such a strong legal
sales. The industry says it must fight to attack on students using college
shutdown sites that make file sharing networks. (4/4/03)
"It's a good decision because the law
was inhibiting birth parents who feel the
need to give a child up for adoption,"
said Lynn Waxman, one of the women's
attorneys. "This helps children because
it helps facilitate adoptions. It also helps
prospective adoptive parents because
it's going to make the adoption more
readily accessible. The law really had a
Sen. Walter" Skip" Campbell, D-
Tamarac, who sponsored the notification
requirement, said he anticipates a bill
repealing it will be passed soon.
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The Brechner Report May 2003 3
New report tracks increase in government secrecy
In the days immediately following September 11, the
U.S. government embarked on an unprecedented path
The of secrecy. The
Back Pag Tatmosphere of
Bac Page terror induced
public officials to
By Lucy Dalglish abandon this
country's culture of openness and opt for secrecy as a
way of ensuring safety and security.
The administration of President George W. Bush Lucy
announced a variety of actions designed to restrict
informationfrom reaching the public, including:
A directive to agency heads by 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 breach of national security can be alleged.
Secret imprisonment of more than 1,100 non-American
citizens on alleged claims of immigration violations or as material
Disregard of a 1992 agreement between the media and the
Pentagon that provided for pooled and open coverage of military
No one has demonstrated that an ignorant society is a safe
society. Citizens are better able to protect themselves and take
action when they know the dangers they face.
In the months since September 11, there has been some
progress. More information became available from some
government agencies. The Pentagon created an elaborate
"embedding" system to place more than 500 journalists with U.S.
military units during an Iraqi invasion. Courts have been
aggressively protecting the public's right to know who is being
detained by the government, and it appears that the U.S.
Supreme Court will decide whether immigration cases will be
conducted in secret.
Perhaps most importantly, American citizens seem less
frightened and more determined to maintain the rights and
liberties they have worked so hard to achieve. They have started
to object to the secret imprisonment of witnesses and immigrants.
They are asking hard questions about airline security. They want
to know whether Afghan civilians have been killed by American
The Reporters Committee's Homefront Confidential
"White Paper" was first published in March 2002 and a
S second edition was published on the first anniversary
of September 11. We believe the public's right to know
is severely threatened in the areas of changes to
freedom of information laws and access to terrorism
and immigration proceedings. This report describes in
detail why the public should be concerned about the
Dalglish information it is not getting.
As with the second edition, this third edition
incorporates a threat assessment to the public's right to know
based on the color-coded scheme used by the Department of
Homeland Security. Just as the government assesses threats to
the nation's security, this report assesses how government
actions have affected the media's ability to provide information
to the public.
Careful observers will note that Pentagon efforts to "embed"
reporters with military units poised for invasion of Iraq induced
us to downgrade the threat posed by the military to the public's
right to know. It moved from "Code Red," to "Code Orange." But
recent news reports about Justice Department plans to introduce
a dangerously restrictive "USA PATRIOT Act II," caused us to
move the threat posed by the domestic legislation from "Code
Blue" to "Code Yellow."
The report begins with a chronology of events related to
government secrecy since September 11. Major secrecy
initiatives are discussed in depth later in the report, which
concludes with a summary of parallel secrecy actions taken by
state governments. For daily updates on threats to the public's
right to know, log on to www.rcfp.org/behindthehomefront.
We live in a nation built on the concept of balance. When the
government, with the best of intentions, goes too far in its efforts
to shield information from the public, it is up to the public and
the media to push back. Through a vibrant, information-based
democratic process in our legislatures and through an
independent judiciary, we as a society will come to a balance that
hopefully will protect our liberties for generations to come.
Lucy Dalglish is Executive Director of the Reporters
Committee for Freedom of the Press in Arlington, Va.