Volume 29, Number 3 U A monthly report of mass media law in Plorida
Published by The Brechner Center for Freedom ofr I,., .i College ofJournalism and Communications U University ofFlorida
Paper appeals verdict, damages in defamation case
PENSACOLA Attorneys for the implying that he murdered his wife. The jury awarded the sum for actual
Pensacola News have requested that a Anderson, who owns a road-paving damages in December 2003, but it could not
circuit judge overturn an company in Lake City, asserted agree on a punitive damage award. A new
$18.28 millionverdict against that although he had fatally shot trial was ordered to determine the punitive
the newspaper. L IB E L his wife, the phrase "shot and award.
The case arose after the killed" inthe article implied thatit Defense attorneys contend that the
newspaper published a 1998 was murder. Two sentences later entire case should be thrown out because
article that businessman Joe Anderson in the story, it was reported that she died Anderson failed to prove the statement was
Jr. claimed placed him in a false light by as a result of a hunting accident, false.
Law dies at 91
TAMPA- Former Democratic state
senator J. Emory Cross, known as the
"Father" of the state Sunshine Law, died
in late March.
Cross introduced the open
government legislation multiple times,
garnering the support
\ of only one other
S senator. Initially, the
bill never made it out
But, the legislator
continued to fight for
more than a decade to
J. Emory Cross pass the legislation in
government meetings to be open to the
The law was the first of its kind in the
nation and has since become the model
for similar acts nationwide.
"I just feel very strongly about the
people's right to know," he once told
Cross represented Gainesville while in
both chambers of the state legislature
and served as the prosecuting attorney
for Alachua County.
He was inducted into the Florida
Freedomof InformationHall of Fame,
housed in the Brechner Center, in 1997.
Citizens suits not allowed under
federal open meetings provision
SAN FRANCISCO The open meetings of the Federal Judicial
meetings provision in the Federal Qualifications Committee.
Advisory Committee Act does not A unanimous court ruled that a 2001
allow for lawsuits by U.S. Supreme Court decision,
private citizens, according A C C E SS which held that courts may
to a recent ruling by the I not assume that individuals
U.S. CourtofAppeal for MEETINGS may sue unless Congress has
the Ninth Circuit. clearly expressed that such a
The decision affirmed a remedy exists, controlled the
federal trial court's dismissal of a
lawsuit by California attorney Patrick J.
Manshardt, who was seeking access to
Manshardt has not decided whether
he will appeal the decision.
Committee ready to recommend
electronic access to court records
TALLAHAS SEE -Electronic access to information available via the World Wide
court records should be available to the Web. This includes Social Security
public, according to the draft report of a numbers, credit card information and
committee appointed by the Florida medical records.
Supreme Court. The responsibility of redacting exempt
The group, composed of informationwillfallon
judges, attorneys and court C O U RT S attorneys, clerks and anyone
clerks, preliminarily -- who seeks to file information
recommends that the public with the court.
be allowed to access records via the Other confidential, but not exempt
Internet despite recent investigations into information, such as trade secrets or
information misuse by data wholesale divorce allegations, would be released
companies such as ChoicePoint, Inc. subject to a judge's ruling.
However, the committee has suggested The committee's final report to the
that limits be placed on the amount of Supreme Court is due on July 5.
ACCESS RECORDS CONTINUED
Appeals court ruling favors Key West publisher
KEY WEST-AFloridalaw Cooper, who edits a weekly newspaper, criticizingDillonfornot reprimandingan
prohibiting the release of information will be able to continue a civil rights suit officer who had lied under oath.
from internal investigations of law against former Key West Police Chief The court said that the law is
enforcement officers is unconstitutional, "Buz"Dillon. unconstitutional because it discriminates
according to a ruling by the U.S. Court of Cooper was arrested after he against speech regarding pending
Appeals for the 11th Circuit. published an article about an investigations of law enforcement officers
As a result of the court's decision, investigation by the Florida Department merely because of its content, in violation
Key West publisher Dennis Reeves of Law Enforcement and an editorial of the First Amendment.
access to photos
of autopsy, scene
DAYTONA BEACH- Circuit Judge J.
David Walsh ruled that photographs and
video from the crime scene of the Deltona
mass murders should be withheld from
Walsh reserved his ruling, allowing
the attorneys time to compile a list of
materials to be sealed in the case.
In his decision, Walsh acknowledged
that public disclosure was important.
"I can't keep this case sealed forever,"
he said. "There's a right of access."
The pictures, which showed the dead
victims after they were brutally beaten
and stabbed, would likely be prejudicial
to both the state and defense, according
to attorneys for both sides.
Motions had been filed by both
parties to seal the records. State
Attorney John Tanner claimed that
release of the photos would re-victimize
the families of the deceased while
defense attorneys argued that some
videotapes and documents would make it
difficult to find an impartialjury.
Copies of case opinions, Florida
Attorney General opinions, or
!,., ha,. ,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.
Pennsylvania neutral reportage case
will not be heard by Supreme Court
WASHINGTON- The U.S. Supreme
Court declined to hear a Pennslvania
case involving the neutral reportage
Neutral reportage is recognized by
courts in several states, including those
in Florida, as a defense for journalists
involved in defamation cases.
It provides reporters the ability to
accurately and fairly report defamatory
statements made by a reputable public
figure or organization without fear of a
The Supreme Court's decision lets
stand a ruling by the Pennsylvania
Supreme Court, which held that no such
privilege exists in Pennsylvania.
In the case, two elected officials sued
a local newspaper after it published
another elected official's allegations that
the two were homosexual.
In October, the Pennsylvania High
Court ordered a new trial to determine the
liability of the newspaper's owners,
publishers and reporters for publishing
the defamatory statement.
The newspaper had originally asserted
neutral reportage as a defense to liability
in the case.
A jury had already ordered the elected
official to pay $17,500 each to both of the
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2 The Brechner Report May 2005
CENSORSHIP ACCESS RECORDS CONTINUED
PALM BEACH Custodians at
Wellington High School collected
copies of the student newspaper, the
Wave, in garbage bags after the school
principal ordered that students be
prohibited from possessing copies of
the February issue.
Principal Cheryl Alligood asked the
newspaper staff to remove an article
on virginity, saying it was disruptive
and inappropriate in a school
In protest, the students distributed
copies of the original, uncensored
newspaper along with copies of the
School officials decided that any
student caught with a copy of the
newspaper would be suspended.
They ordered custodial staff
members to confiscate all copies of the
banned newspaper that were on
Since the incident, school officials
have instituted a prior review policy.
In 1987, the U.S. Supreme Court
upheld the constitutionality of prior
review for legitimate pedagogical
concerns in high schools in
Hazelwood School District v.
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Officer settles records lawsuit
police officer will receive more than
$45,000 to settle two lawsuits he filed
against the city.
The city council agreed to pay former
employee Arnold Uttley the sum after he
alleged that city officials did not address
his public records requests.
He also filed a separate suit claiming
that the city violated the Open Meetings
law when it settled a 1999 lawsuit he
filed after he was not reinstated as a
police officer because of a 1997
conviction for drunk driving.
Uttley argued that the city failed to
provide access to the settlement
negotiations of the 1999 lawsuit, which he
claimed violates the Sunshine Law.
Neither Uttley nor the city council
admitted to any wrongdoing in their
In addition to paying Uttley the
damages, the city will provide employees
with training on the Sunshine Law.
U.S. Supreme Court refuses to hear
case regarding reporter's privilege
WASHINGTON A decision to civil rights for failure to adequately
quash subpoenas issued to two investigate the murder.
journalists involved in a civil rights case They sought the testimony of two
will stand after the U.S. Supreme Court journalists, including an Associated Press
refused to hear the case. reporter, in connection with the civil suit.
In Donohue v. Hoey, the U.S. Court of The U.S. Supreme Court has not decided
Appeals for the 10t Circuit affirmed a a case involving the reporter's privilege
lower court ruling, saying that the since its 1972 ruling in Branzburg v. Hayes.
plaintiffs had failed to explain how the That decision left the federal courts split
trial court erred in quashing the over whether the privilege should be
subpoenas. recognized. The Court also disagreed on
The plaintiffs, parents of the murdered the scope of First Amendment protection
Buffy Rice Donohue, sued the former for reporters who withhold the identity of
police chief, claiming violation of their confidential sources from the courts.
BACK PAGE CONTINUED
proposed statute also covers any of the
media firm's parent, subsidiary or
affiliate entity. The persons covered by
the proposed Act resemble the classes
of protected persons named in virtually
all of the existing state shield laws. But
this kind of stated coverage for the
company's parent, subsidiary and
affiliate is rare. Nevertheless, its
inclusion here recognizes the realities of
a converged media environment, where
sources and information may be shared
by employees at several different closely
related companies. Wisely, the authors
of the bills have narrowed the coverage
area of the privilege to include
traditional news media outlets, which
generally stand in the greatest need for a
privilege because of their extensive
transactions with confidential sources
and information. That way, protecting
traditional journalists ensures that
responsible news veterans who have an
appreciation for news values and ethics
will continue to disseminate news and
information in the interest of the public. In
addition, it ensures that there will be a
privilege available to protect confidential
relationships with sources so that
information continues to flow freely from
sources to journalists and from journalists
to the public. Any attempt to broaden the
scope of the privilege to include non-
journalists opens the shield law to
possible judicial nullification. A shield law
extended to the masses can no longer
rightfully be called a privilege.
Laurence B. Alexander is a Professor of
Journalism in the College of Journalism
and Communications at the University of
Florida and has published numerous
articles on shield laws.
The Brechner Report May 2005 3
Federal proposal would protect journalists
Journalists could be getting at least the same piotcc on i
in federal judicial proceedings that they enjoy in 31 suits
and the District of Columbia under bills filed during t li
current session of Congress. Additionally, if the ploposals .
remain relatively intact, news gatherers could get .n
absolute privilege in federal courts, bringing great I
protection than they enjoy in most state courts.
Over the last few months, separate bills have been filed
in Congress to give journalists a privilege against having a
to reveal confidential sources and information. Ale)
In February, companion bills were filed in the House by
Reps. Mike Pence (R-Ind.) and Rich Boucher (D-Va.) and in the
Senate by Richard Lugar (R-Ind.). Bothbills, titled the "Free Flow
of Information Act," would provide journalists with an absolute
privilege against compelled disclosure of their sources. It would
also protect journalists from being subpoenaed by any federal
government entity to testify or reveal any other information unless
all other sources for the information had been exhausted and the
material was essential to the underlying court case or investigation.
Like virtually all of the state shield laws providing journalists a
The privilege to refuse to testify, the
B a k Pe proposed federal shield law allows
c journalists to keep secret the
identities of their sources and
By Laurence Alexander documents. Moreover, the federal
bills would give substantial
protection for news gatherers' sources that rely on confidentiality
agreements when they pass valuable sensitive information to
members of the working press. The specific terms of the proposed
law would prohibit compulsory disclosure by a journalist "in any
proceeding or in connection with any issue arising under federal
law." To get the court to make an exception to this rule, a federal
official seeking the information would have to prove by clear and
convincing evidence that the information could not be obtained
elsewhere or that the information sought was essential to the
underlying court case or investigation. The exception aside,
applying the privilege to any proceeding apparently would enable
journalists to escape testifying before federal grand juries when the
sought-after information can be obtained from another non-news
source. Such an exemption would go beyond the limits of the
landmark U.S. Supreme Court decision inBranzburg v.
Hayes in which the High Court refused to allow a
journalist's privilege to avoid grand jury testimony based
on the First Amendment.
Altogether 31 states, including the Sunshine State,
have passed statutes to protect journalists from revealing
their sources in state courts and nearly all of the
remaining states have allowed some semblance of a
privilege in their courts. However, there is currently no
rence statutory protection for journalists who are subpoenaed to
sander testify in federal court, except in those circuits that
expressly recognize a common law privilege for journalists.
To be sure, federal shield laws were proposed in Congress in the
1970s and 1980s, butto no avail. This time, federal lawmakers were
prompted by a string of reporters who recently were threatened
with jail sentences in at least three different federal jurisdictions.
The bills' sponsors feel that compelling reporters to reveal sources
would be detrimental to the public interest in government access.
"Without the promise of confidentiality, many important conduits
of information about government activity would be shut down,"
Pence has said.
The bill would also protect journalists from having other records
held by third parties-such as telephone records held by a phone
company or e-mail tracked by an Internet service provider-turned
over without their knowledge. The bill would require that
journalists be notified before such a subpoena is issued and be
given an opportunity to contest it prior to the time the records must
be turned over. The need for such a provision should be evident.
Its absence would enable the subpoenaing entity the opportunity
to circumvent the intent of the shield law by indirectly accessing
the desired data through phone and e-mail records. Therefore, it is
necessary to limit such a move initially before any valuable news
sources are harmed.
The bill would cover traditional news media outlets, such as
newspapers, magazines, books, periodicals, broadcasting, cable,
satellite, news agencies and news wires. It specifically covers any
person who works for any of these businesses, specifically
someone who "gathers, edits, photographs, records, prepares or
disseminates news or information for such an entity." The
continued on page 3.