Volume 29, Number 1 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of n I,, ... .,1 1 College ofJournalism and Communications U University ofFlorida
PARKLAND A lawsuit claiming city
commissioners violated Florida's Open
Meetings Law during contract
negotiations was dismissed.
Judge upholds restriction against
reporters after journalist's arrest
WEST PALM BEACH- A circuit The state law allows elections officials
judge refused to override an election to bar non-voters from being in an area
supervisor's rule that restricted reporters 50 feet from polling places. But,
from standing within 50 feet of voters according to the foundation's lawsuit,
outside her office. TT ,- LePore illegally ordered
Dnrino pr1xr intino in I- I I rdpnntipc tn hor ilnnntpprQ nrl
In March, -t -t I I y i
mAC C E Srcia, October for the journalists from areas out
A CSS ansaction presidentialelection, A E1NDMEI the 50-foot zone around t
MEETINGS lawyerMarilyn PalmBeachCounty polls.
BonillaKrantz Supervisor of Elections Theresa LePore Assistant County Attorney Leor
filed the suit on behalf of her husband, enacted a rule that prohibited reporters John argued that LePore had the
Stuart, Amy Conza, Michael Lucente and from interviewing or photographing authority to do whatever was neces
Natalie Jankowski Bigio. voters lined up outside the polls, to protect voters from intimidation
The suit accused former Vice Mayor according to The Palm Beach Post. keep the voting process running
Ricky Gordonand Commissioners On Oct. 31, freelancejournalist James smoothly.
Michael Udine and Diane Weissman of S. Henry was arrested by Deputy Al Judge David Crow agreed with S
privately discussing police services. Cinque while photographing early voters. John, saying the law gives election,
During these alleged meetings, the According to witnesses, when Cinque supervisors wide discretion when tr
commissioners hired the Broward tried to grab Henry's camera, the to run a proper election.
Sheriff's Office to take over policing. journalist ran about 100 feet before he "The supervisor... does have the
The Sunshine Law makes it illegal for was tackled by the deputy. After pinning power to exercise her reasonable
elected officials to discuss public Henry on the pavement, Cinque yelled at judgment in maintaining a 50-foot
business in private. him to "Hold still, stop moving," perimeter around those who are stall
The lawsuit sought to overturn the punched the journalist in the back and in line," Crow said. "I think this wo
contract with the sheriff's office and grabbed his left arm to put a handcuff on define the legislative purpose of the
grant attorney's fees to the plaintiffs, his wrist, several witnesses said. statute we have."
In September, Bonilla Krantz proposed Following the incident, the People for He added that granting the
dismissing the case in exchange for an the American Way Foundation filed an foundation's request to eliminate a
agreement by the city not to pursue legal immediate injunction, arguing LePore did zone would create an unfair situation
fees or further legal action, which the city not have the authority to restrict free voters whose polling locations had
accepted. speech so blatantly. longer lines.
Judge dismisses defamation lawsuit against newspaper
DAYTONA BEACH Ajudge
dismissed the second of two lawsuits
filed against The Daytona Beach News-
Journal for defamation.
In 2002, The News-Journal filed a
lawsuit against three Ormond Beach
county commissioners for violating the
state's Open Meetings Law during the
firing and rehiring of City Manager Isaac
In its story about the lawsuit, the
paper alleged that Randy Brewer and
Dean Gast acted as "conduits or records, Kaney said, and, therefore,
liaisons" for the defendants in their "Randy Brewer has no claim for
private discussions. Both defamation against The News-
Brewer and Gast filed Journal."
defamation lawsuits against LL Last month, Walsh dismissed
the paper. the defamation claim of Gast's
According to Jake Kaney, the lawsuit, but Gast was allowed to amend
newspaper's attorney, Brewer's suit was his claim and the matter is still pending a
dismissed on grounds that Florida law decision, Kaney said.
allows media to report the content of Likewise, Brewer's suit was dismissed
public records, including judicial records, without prejudice, meaning he can also
The story accurately reported those amend hisclaim.
open to inspection
BUNNELL- Complying with a circuit
judge's ruling, Flagler County sheriff's
office officials opened their computers to
a public records search.
In February, county officials had sent
a public records request to the sheriff's
office for access to records detailing the
production and distribution of its
controversial calendars and holiday
greeting cards. After not getting an
adequate response from the office,
officials filed a lawsuit.
Attorneys for Sheriff Jim Manfre
argued they gave county officials all
necessary documents and the law does
not mandate access to computer
terminals, particularly because the
computers contain confidential
Circuit Court Judge Kim Hammond
disagreed and gave Manfre 10 days to
allow county officials access to the
records or explain to the court why he
could not comply. Manfre's attorney,
Sid Nowell, had talked about appealing
the ruling, but then decided to give up
"We just decide to move on with our
lives," he said.
County Attorney Carl Ker and
Deputy County Attorney Pat McCormack
were pleased with the decision, but said
it shouldn't have taken so long.
"This should have been resolved
within three days of our Feb. 3 public
records request," McCormack said.
"Today was a large step forward."
Copies of case opinions, Florida
Attorney General opinions, or
!,.i ila. ,i reported in any issue as
on file" may be obtained upon
requestfrom 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.
U.S. Supreme Court won't consider
Aisenberg's appeal for transcripts
Court refused to consider an appeal by
Steve and Marlene Aisenberg, who
wanted the Court to release grand jury
transcripts in a case where they were
The couple said the release of the
transcripts would expose the misconduct
of local authorities and federal
Prosecutors have admitted they
wrongfully prosecuted the couple in
connection with the disappearance of
their daughter, Sabrina, according to The
The Aisenbergs were charged with
lying to investigators, but judges later
dismissed the charges.
Instead, they concluded that local
investigators and federal prosecutors
had lied about the contents of tape
recordings of wiretapped conversation
with the couple.
In2003,U.S. District Judge StevenD.
Merryday ordered the government to pay
$2.9 million in legal fees and open the
grand jury transcripts to the public,
saying the public had a right to know
about the facts of the failed prosecution.
The 11t Circuit Court of Appeals
overturned Merryday's decision, ruling
that the transcripts should remain sealed.
In addition, the court lowered the award
forlegalfeesto $1.5 million.
The nation's highest court declined to
consider the appeal, without comment.
"It's a sad day for the American
justice system when there can be such a
travesty of justice and the people are
denied their right to know how this could
happen in America," Barry Cohen, the
Aisenberg's attorney, said.
2 The Brechner Report January 2005
Computer error makes confidential files
on child welfare cases publicly available
MIAMI A reporter for The Miami said Janice Johnson, chief executive
Heraldnotified local child welfare officer of Kids Central. "It is
authorities of a computer glitch that paramount to what we do. We are
made thousands of confidential child resetting every password, and we are
abuse and foster care records available changing the process by which we
to anyone with Internet give out passwords."
access. PRIVACY Apparently, some
The documents I caseworkers had trouble
contained information accessing the state's
about nearly 4,000 children under the child welfare database, so the
watch of Kids Central, a private welfare technology staff added a link to the
agency that handles foster care service Web site where people could post and
for at-risk children in the Department of read help requests without using a
Children& Families' (DCF) District 13. password.
The agency has been criticized in According to The Herald, some
the past over the security of their replies to help requests contained
records, specific log-in identities and
According to The Herald, names of passwords.
foster children, birth dates, Social The newspaper's reporter used that
Security numbers, photographs, case information to gain access to the
histories and directions to children's confidential records.
foster homes, were all accessible with a A spokesman for Edmetrics, the
password that had been posted on company that developed the computer
Kids Central's Web site. system, said security logs showed the
Following the reporter's tip about reporter "was the only unauthorized
the security breach, DCF officials access into the system."
immediately shut down the site. "We are making sure that our
"We take very, very seriously the information is protected and that this
confidentiality of client information," never happens again," Johnson added.
Resident claims committee broke FCC, Viacom settle
Sunshine Law with private meeting indeceny complaints
DELRAYBEACH- AWestPalm ad hoc con
Beach resident filed a complaint with the public."
State Attorney's Office, claiming the Wood a
Delray Beach City Commissionviolated any laws w
Florida's Open Meetings Law. It s
Mike Tague claims an ad-hoc from an ad
committee of home and business owners the Chamb
and bicycle riders led by Bill Wood, the subject to t
city Chamber of Commerce president, said.
met privately to discuss adding bike In its re
paths along State Road A1A. The recommend
committee made recommendations and control, pa
sent them to the Florida Department of and cross
Transportation (DOT). lighting, in
"The complaint is that these people paths and
were assembled privately and without The DC
including interested people on their recommend
meetings," said Tague. "The mayor was proposed t
specifically guiding the members of the on the stat
BACK PAGE CONTINUED
The more-important questions center
on the more-fundamental promises of
journalism promises that reporters
make every time we pick up a phone. It is
a debate to be settled in newsrooms, not
I was forced to confront these
questions eight years ago, when I was
sentenced to 70 days in jail for refusing
to testify about ajailhouse confession
given to me by a child killer.
I was bombarded with reasons to
testify. Media lawyers said that the case
could further weaken what little
protections we had from subpoenas.
Editors warned that our readers would
perceive us as protecting a child killer.
Fellow reporters reasoned that there is
no difference between "on the record"
and "on the stand." Others suggested
that reporters cannot hold themselves
above the law. In the end, for me, it
came down down to the fundamental
We interview accused killers because
it isn't fair to write stories based only on
police accounts, because experience
tells us that police make mistakes.
If journalists allow themselves to be
used as government snitches, our
promises of fairness and impartiality are
meaningless. People should feel free to
call us collect from the jail, just as
confidential sources should feel safe
imittee prior to their meeting in
nd Mayor Jeff Perlman deny
a recommendation that came
hoc committee that came from
er of Commerce, which is not
he Sunshine Law," Perlman
port, the committee made
nations for traffic speed
rking, pedestrian sidewalks
valks, landscaping and street
Addition to creating bike
shoulders along A1A.
>T considered the
nations and ultimately
o create 5-foot-wide bike lanes
with our promises no matter how
distasteful or inconvenient it might be for
I went to jail to protect not a child
killer but my credibility with the next guy
and the woman after that one of whom
will be the victim of police errors or
abuse, one of whom will be innocent, one
of whom could be you.
I spent 15 days injail before a federal
judge let me out to fight my appeals. The
child killer was convicted without me.
The ordeal taught me that a free press
doesn't belong to journalists; it belongs
to our readers. It is not ours to squander
with our excuses. I learned that we
cannot earn respect for these principles
by compromising them. I have a file
folder containing more than a dozen
subpoenas I received before going to jail.
I don't need one for the subpoenas I've
received since; there aren't any.
It's a terrible thing to ask a reporter to
go to jail for doing herjob. But the time
has come to stand up and demonstrate
that these principles ones we mostly
just argue in legal briefs and op-ed pieces
- are worthy of that sacrifice.
The time has come to stop feeding the
Dave Kidwell is a staff writerfor The
Miami Herald. This article was
originally printed in The Herald on
about Howard Stern
WASHINGTON Viacom agreed to pay
a $3.5-million fine to settle indecency
complaints over remarks made by Howard
Stern and other broadcasters over the last
Federal Communication Commission
(FCC) officials said the payment resolves
investigations and fines involving 50
broadcasts on Viacom's CBS and UPN
television networks, in addition to its
Infinity radio subsidiary and related
affiliates, according to The New York Times.
"This consent decree allows us to move
forward and focus our efforts in this area by
serving our viewers and listeners with
techniques to safeguard live broadcasts,"
Viacom said in a statement.
FCC officials said the settlement was the
largest in the commission's history.
As part of the settlement, the indecency
complaints will not be considered when the
spectrum licenses of the companies
involved come up for renewal.
The settlement does not include the
proposed $550,000 fine for the incident at
last year's Super Bowl, where singer Janet
Jackson's breast was exposed during the
The half-time show, which was produced
by MTV and also starred singer Justin
Timberlake, aired on CB S television affiliates
during prime-time viewing hours.
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The Brechner Report January 2005 3
First Amendment: Time to stop feeding the gators
There's a debate swirling in Washington, D.C.,
courtrooms about whether reporters should be legally
allowed to keep their promises to confidential sources.
Reporters from some of the nation's largest news
organizations are facing jail if they refuse to open their
notebooks and share their sources with a high-profile
Back Page nationwide have David
responded with shock
By David Kidwell and alarm.
How could this happen in a
country where freedom of the press and freedom of speech are
fundamental civil rights vital to keep government accountable? In
a country where a bedrock tenet is a media free from government
The alarm isjustified.
But anyone shocked by prosecutors and judges willing to
make criminals out of journalists who defend these principles has
not been paying attention. It has been coming for years, and the
media have largely themselves to blame.
By the nature of their work, journalists' notebooks and phone
conversations are replete with details that lawyers, prosecutors
and police find useful. It's like having a small army of free
investigators able to gain people's trust.
It is no surprise that newspaper lawyers are regularly
employed to fight off subpoenas.
At first, the resistance is unequivocal and rooted in the lofty
principles of an independent media.
But when it comes time to sacrifice for these principles, when
the legal arguments fail and the choice is to compromise or face
jail and fines, editors and reporters at news organizations large
and small have quietly allowed the line to move as a matter of
Television stations routinely turn over unaired outtakes.
Newspaper reporters rationalize themselves into cooperation
deals. Lawyers encourage us to save the fight for another day,
another subpoena. It's like feeding marshmallows to an alligator
in the hopes that it will go away.
Matt Cooper of Time magazine learned this lesson. He was the
first of five reporters to face jail at the hands of a federal
prosecutor on a hunt for his sources. Someone in the
Bush administration is suspected of leaking to them the
name of an undercover CIA agent whose husband had
been publicly critical of her bosses.
Ironically, none of the five reporters from
organizations including The New York Times and The
Washington Post published a story based on the
dwell The right-wing talking head who did C i, .,.. Sun-
Times columnist Robert Novak won't say whether he
cooperated with the inquiry.
Cooper cut a deal to testify after his source "released" him
from his promise under orders from the White House, according
to published reports. Cooper has said he was satisfied that his
source's release was sincere and not coerced by the White
House. So Matt Cooper threw the government a marshmallow
and testified, hoping it would be enough.
The alligator is back.
Cooper has been subpoenaed again, ostensibly to talk about
another source. After all, if you'll compromise on one why not
them all? Only one of the five Judith Miller of The Times -
has stood her ground. She faces an 18-month jail sentence for
refusing to cooperate and is free while her lawyers appeal.
Miller understands the stakes. Journalism's most important
responsibility is to challenge authority, not to allow itself to be
co-opted by it; to expose the mistakes of those in power, not to
The people who drafted the First Ammendment understood
that governments lie and cheat and steal, and that those in power
are often unwilling to police themselves. So they handed the task
to a free press.
Of course, we fail at this calling more often than we should.
It is a difficultjob policing the government. Reporters can't
subpoena bank records or tap phones or threaten someone's
freedom. We don't have badges and guns. The only tool we
have is our word, our promise. Without the strength of that
promise, the residents of Washington, N.C., would still be
drinking poisonous water, dozens of Catholic priests would still
be shuffled from church to church after being caught molesting
children, and Richard Nixon would still be viewed as a great
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