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Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: June 2009
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Bibliographic ID: UF00090012
Volume ID: VID00114
Source Institution: University of Florida
Holding Location: University of Florida
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THE


BRECHNER


REPORT

Volume 33, Number 6 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
June 2009

City commission bans texting during meetings


DELTONA The Deltona City
Commission voted 6-1 to ban
commissioners from using cell phones
or text messaging during
commission meetings. A C(
The ban was proposed
by Commissioner Zanaida MEE'
Denizac who expressed
concern that using cell phones or text
messaging during meetings could
hinder transparency in the commission's
operations, according to The DeLand-


-'E
[1flN


Judge takes back
TALLAHASSEE Circuit Judge
Kevin Davey reversed his previous order


barring anyone involved in a wrongful
death suit against the city
from discussing the case.
In the initial gag order, C
Davey forbade anyone
involved with the civil case against the
city of Tallahassee from discussing the


case or making comments about pending
legislation outside of legislative hearings.
"When considering matters of
constitutional right, including freedom
of speech and the right to petition one's
government, courts must be careful not to
overstep their authority," Davey wrote in


Deltona Beacon.
Commissioner Herb Zischkau, who
admitted to text messaging during
meetings, was the only
SS commissioner to oppose the
Sban. He argued that banning
4GS the use of cell phones and text
messages in meetings should
be left up to the Florida legislature to
address.
"What they have left us free to do, I
think we should be left free to do," said

gag order
his opinion, reversing his earlier ruling,
according to the Tallahassee Democrat.
Rachel Hoffman's parents, Margie
Weiss and Irv Hoffman,
RT S are suing the city
R S after their 23-year-
old daughter, Rachel,
was killed working as an informant
for Tallahassee police. They have
also pushed for Rachel's Law, which
is currently in the Florida House
of Representatives. The bill would
require stricter guidelines for how
law enforcement uses confidential
informants.
Source: Tallahassee Democrat


Bill to allow cameras in courts


WASHINGTON Sen. Chuck
Grassley, R-Iowa, and Sen. Charles
Schumer, D-NY, have introduced a
bill that would give federal judges
discretion to allow cameras and
other electronic media in courtroom
proceedings.
The Sunshine in the Courtroom
bill would allow the chief judge of
federal trial appellate courts to allow
cameras in courtrooms, would direct
the Judicial Conference to draft
nonbinding guidelines for judges to use
in deciding whether to allow cameras


in particular cases and would also
instruct the Judicial Conference to issue
mandatory guidelines for obscuring
vulnerable witnesses.
"Our judicial system is one of the
best kept secrets in the United States.
Letting the sun shine in on federal
courtrooms will give Americans an
opportunity to better understand
the judicial process," said Grassley,
according to his office. "It's just the
best way to maintain confidence and
accountability in the system."
Source: http://senate.gov/


Zischkau, according to The Deland-
Deltona Beacon.
Although the legislature has not
formally dealt with the use of such
technology during meetings, the
Commission on Open Government
Reform recommended in its final report
released in January that the use of text
messaging and instant messaging be
prohibited during public hearings or
meetings.
Source: www. beacononlinenews. cor


Golfer's libel

suit tossed out
JACKSONVILLE Ajudge threw
out professional golfer John Daly's
defamation suit against The Florida
Times-Union and Mike Freeman,
a former sports columnist at the
newspaper.
Daly sued the paper and the
columnist for a 2005 column
that discussed Daly's "thug life
qualifications," including accusations
of domestic violence and the golfer's
three children from different women,
according to The Florida Times-
Union.
LIBEL Circuit
Judge Hugh
Carithers threw out Daly's lawsuit
because the portions of the column at
issue were either undisputed fact or
constitutionally protected opinion and
were not made with actual malice.
"The alleged defamatory
statements are opinions based upon
disclosed facts," Carithers wrote in
his opinion, according to The Florida
Times-Union. "The First Amendment
leaves it to the reader, not the courts,
to assess the quality of the author's
judgment."
Source: www.jacksonville.com


)U






FREEDOM OF INFORMATION


Sunshine poll shows support for open government


WASHINGTON A survey found that
while most Americans overwhelmingly
support the Obama administration's
commitment to transparency, 61 percent
also believe that federal agencies "only
sometimes, rarely or never" obey the
Freedom of Information Act.
The survey of 946 adults commissioned
by the American Society of Newspaper


Man sues to

keep mural

CLEARWATER With help from
the American Civil Liberties Union,
the owners of a bait and tackle shop
have won the first round in a federal
lawsuit over a fish mural.
Herb and Lori Quintero were
cited for a mural of game fish on
an outside wall of their store, the
Complete Angler. The city asked
the Quinteros to remove the mural
because it was an unauthorized sign
under the city's code. The Quinteros
refused to paint over the mural
arguing the mural was art. Instead,
they covered the painting with a
banner of the First Amendment.
The owners have been fined
nearly
$700 FIRST
and
faced AMENDMENT
steeper
fines until a federal judge issued
an injunction against the city. U.S.
District Judge James D. Whittemore
issued an injunction forbidding the
city from levying more fines against
the shop for its mural or for the First
Amendment sign while the case is
in litigation because the city's case
"does not withstand strict scrutiny,"
according to the St. Petersburg
Times.
In his ruling, Whittemore agreed
with the findings of U.S. Magistrate
Elizabeth Jenkins who concluded that
the mural and the First Amendment
banner were "noncommercial speech
protected by the First Amendment,"
according to the St. Petersburg
Times.
Source: St. Petersburg Times


Editors and conducted by the Scripps
Howard News Service and Ohio
University also found that while two-thirds
of respondents had heard about FOIA,
only six percent said they had requested
information under the act.
Belief that the federal government is
"very secretive" also slightly declined
from a year ago. The survey found that


40 percent believe the government is
"very secretive," down from 44 percent
in 2008. In 2006, 22 percent believed the
government to be "very secretive" and in
2007, 37 percent believed that to be the
case.
The survey has a margin of error of
about 4 percentage points.
Source: Scripps Howards News Service


European court addresses access


SPAIN The European Court of
Human Rights held that a public body's
refusal to provide information that is
necessary for public debate is a violation
of the rights of freedom of expression and
freedom of information.
In the decision, the court held that the
state has an obligation not to impede the
flow of information needed for public
debate. Further, the court held that using
privacy concerns to bar the release of
information related to public officials or
bodies would be "fatal for freedom of


expression," according to Access Info
Europe, a human rights organization based
in Madrid that promotes transparency in
national and international public bodies.
The case came to the European Court
of Human Rights after the Hungarian
constitutional court refused a request from
the Hungarian Civil Liberties Union to
disclose a parliamentarian's complaint
questioning the legality of a new drugs
policy law, according to Access Info
Europe.
Source: Access Info Europe


FAA releases bird strike records


WASHINGTON The Federal
Aviation Administration has made
available on the Internet public records
of bird collisions with planes since 1990.
The data released contains details on
more than 89,000 incidents involving
collisions with birds or other animals.
In releasing the records, the FAA
abandoned a proposal made earlier this
year that would have blocked the release
of records of bird collisions, like the one
that forced a U.S. Airways jet to land in


the Hudson River in January.
The FAA had proposed the rule out
of concern that airports and others may
become reluctant to voluntarily report
the information and out of concern that
such information may be misleading the
public.
Although the FAA releases annual
summaries of collisions will all types
of wildlife, the proposal had drawn
criticism from public records advocates.
Source: The Associated Press


FBI wins Rosemary Award


WASHINGTON The Federal Bureau
of Investigation won the 2009 Rosemary
Award for the worst FOIA performance
by a federal agency.
The Rosemary Award is given
annually by the National Security
Archive at George Washington
University.
The FBI received the award after the
record-setting number of times the bureau
responded to records requests with "no
records." According to the FBI's reports
to Congress, the bureau has been unable
to find records requested 66 percent of
the time over the last four years. Other


government agencies have reported being
unable to find records requested 13 percent
of the time, according to the National
Security Archive.
The Rosemary Award was named after
President Richard M. Nixon's secretary,
Rose Mary Woods, who famously erased
an eighteen-and-a-half minute section of
a Watergate conversation on the White
House tapes.
Past winners of the Rosemary Award
have included the Department of the
Treasury, the Air Force, and the Central
Intelligence Agency.
Source: National Security Archive


2 The Brechner Report U June 2009







Truth can be

libelous
MASSACHUSETTS -The 1Pt
U.S. Circuit Court of Appeals ruled
that truth is not a defense in some
private-figure libel cases and refused
to dismiss the libel suit brought by a
former Staples employee.
Alan S. Noonan is suing the
company claiming an e-mail company
executives sent to 1,500 employees
stating that he had been fired for
violating the company's travel
and expenses policy was sent with
malicious intent despite being true.
Although the federal court was
interpreting state
law, not federal LIBEL
law, the decision LIBEL
counters years
of precedent holding the truth is an
absolute defense to libel.
In its decision, the court relied on
a Massachusetts statute from 1902
that allows for a true statement to be
considered libelous if published with
"actual malice."
The court held that the "actual
malice" in the Massachusetts statute
meant "ill will," and was not the same
as the "actual malice" standard, of
publishing with reckless disregard
for the truth, established by the U.S.
Supreme Court for public figures in
New York Times v. Sullivan.
Source: The Reporters Committee
for Freedom of the Press and First
Amendment Center


THE
BRECHNER
REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Adrianna C. Rodriguez, Editor
Alana Kolifrath, Production Coordinator
Alison Parker, Production Assistant
The BrechnerReport is published 12 times a
year under the auspices of the University of Florida
Foundation The Brechner Report is ajoint effort
of The Brechner Center for Freedom of Information,
the University of Florida College of Journalism and
Communications, the Florida Press Association,
the Florida Association of Broadcasters, the Florida
Society of Newspaper Editors and the Joseph L
Brechner Endowment


ACCESS RECORDS


New charges for
HERNANDO COUNTY The county
commission adopted the "Duplication of
Documents Fees Policy," which charges a
fee for public records requests that require
creating special reports or requests that are
voluminous.
Commissioner Jim Adkins was the lone
opponent of the new policy. He asked the
commission to reconsider the policy at
a subsequent meeting with little success
and said he had received between 50 to 75
e-mails from residents opposing the new


public records
charges.
"It takes transparency out of
government," he said, according to The
Tampa Tribune.
Commission Chairman David Russell,
who supports the new policy, said that as
long as citizens' requests are reasonable
and easily obtained, the commission "will
bend over backward to make sure they get
the information requested," according to
The Tampa Tribune.
Source: The Tampa Tribune


Identities of blog viewers sought
VIRGINIA The publisher of the Expression, according to The Reporter '
community news blog is fighting a Committeefor Freedom ofPress.
subpoena for the identities of all who Garrett is seeking "any and all
viewed and posted on his blog posting documents and information relating to
about a local defamation suit. persons posting comments on the article,"
Waldo Jaquith, who PR TV A CY according to the Citizen Media
publishes cvillenews. L VA Y Law Project. Jaquith's posting
com in Charlottesville, discussed the lawsuit and was
Va., was subpoenaed by Thomas Garrett, critical of Garrett.
who is suing The Hook for defamation, In a motion to quash the subpoena
after the newspaper wrote a series Jaquith's counsel is arguing the
covering criminal proceedings against information is protected by reporter's
him. Jaquith has obtained pro bono privilege.
assistance from Public Citizen, the ACLU Source: Citizen Media Law Project and
of Virginia and the Thomas Jefferson The Reporters Committee for Freedom of
Center for the Protection of Free the Press

Judge tosses out Sunshine suit
PENSACOLA- Ajudge ruled the public but did not have an official
that the Community Maritime Park period for public comment.
Associates did not violate the Sunshine In the decision, Circuit Judge
Law by not designating time for public Frank Bell wrote that the Sunshine
comment during A C C E SS Law guaranteed meetings of
meetings. A C E SS governmental bodies to be open,
The lawsuit alleged but did not guarantee the public a
that the CMPA, which M EETINGS right to speak at those meetings,
oversees a proposed $40 according to the Pensacola
million downtown park, violated the law News-Journal.
at about 30 meetings that were open to Source: Pensacola News- Journal

Obama hosts online town hall
WASHINGTON Keeping his president answered questions picked
campaign promise of opening up the from the more than 104,000 sent over the
White House, Internet and from the nearly 100
President Barack N E W I audience members who were invited
Obama hosted anIN^ to attend the meeting.
online town hall TECHNOLOGY Most of the questions focused
meeting from the around the president's budget
White House's East Room. proposal, housing bailout plan and
For more than an hour at the "Open economic stimulus package.
for Questions" town hall meeting, the Source: The Washington Post


The Brechner Report U June 2009




THE
BRECHNER
REPORT
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesville, FL 32611
June 2009


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Florida's "no approach zc
In reaction to a shooting by police in Ft. Myers,
Fla., the American Civil Liberties Union of Florida,
working with members of the local community, drafted
a petition to amend the city's charter to create a citizens
oversight board for the police department.
The Citizens for Police Accountability, Citizens
for a Better Fort Myers Government, and the Florida
NAACP Youth Council all circulated a petition to
place the oversight board on the ballot. To be placed
on a ballot, petitions must be submitted "signed by
10 percent of the registered electors as of the last
preceding municipal general election."
The circulators took their petitions to churches, community
The centers, and door-to-door
B k Pin an effort to collect the
B aC k Page required signatures, but these
By Paul McAdoo efforts were not sufficient to
gather the full number. They
also attempted, unsuccessfully, to circulate the petition at the
January 2008 Presidential Preference Primary.
However, Florida law, Section 102.031(4), forbids
circulation of petitions within 100 feet of a polling place. This
"No Approach Zone" insulates voters from interaction with
petition circulators.
The plaintiffs sued the Secretary of State of Florida, Kurt
Browning, and the local supervisor of elections, Sharon
Harrington, challenging Section 102.031(4) on the grounds
that it was an unconstitutional infringement of their First
Amendment rights of speech and association. However, the
plaintiffs only sought the right to circulate their petition after
the voters had cast their ballot.
On Aug. 21, District Judge John E. Steele heard arguments
of counsel on a motion for preliminary injunction.
The key case relied upon by both parties was a 1993 U.S.
Supreme Court plurality opinion assessing Tennessee's 100-foot
restriction on polling place activity, Burson v. Freeman. In that
case, a politician sought to solicit votes at Tennessee polling
places. The Supreme Court, in a divided opinion, upheld the
Tennessee statute as constitutional on its face. The plurality
held that some restricted zone around the polling place was


)ne" unconstitutional
necessary to prevent voter fraud and intimidation.
The plurality limited the application of the modified
burden by explaining that the more lenient standard
"applies only when the First Amendment right
threatens to interfere with the act of voting itself."
In the Ft. Myers case, the plaintiffs argued that the
modified burden did not apply because their activity
would not interfere with the act of voting itself
because it occurred only after the voter exited the
cAdoo polls. In this sense, plaintiffs explained, their activity
was constitutionally indistinguishable from that of
media exit-pollers who are permitted under the statute to be
within the 100-foot zone. Attorneys for the Secretary of State
argued that Burson grants states a great deal of flexibility and
choice in regulating the area outside of polling places.
On Aug. 22, Judge Steele granted the plaintiffs' motion for
preliminary injunction on the grounds that the statute, as-
applied to post-vote circulation, infringed the plaintiffs' First
Amendment rights because the State had not been able to show
that it was either necessary or narrowly tailored to achieve the
State's interests under either a traditional analysis or the Burson
modified standard.
As a result of Judge Steele's ruling, the plaintiffs were able
to circulate their petition at the Aug. 26 primary election in Ft.
Myers. The plaintiffs have now submitted their petitions to
the Supervisor of Elections for verification. Both Defendants
appealed Judge Steele's order to the 11th Circuit. Oral argument
took place on March 11.
Should the 11lt Circuit uphold Judge Steele's ruling, it
would help future petition circulators gain access to the high
concentration of registered voters at polling places and early
voting sites in Florida. This would be a significant victory for
petition circulators, whether they are grass roots movements
or more well-funded groups. It would increase the voice of
the citizens of Florida on everything from amendments to the
Florida Constitution to local issues.

Paul McAdoo is an associate at Thomas, LoCicero & Bralow
PL, the law firm which represents the ACLU and the NAACP in
this case.




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