Volume 29, Number 11 i 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
Board members cleared of meetings violation
The complaints asserted that the board
members were present at po-
E SS litical and community forums
that were sponsored by private
However, the inquiry found
that neither board member discussed
school board business while in attendance
at the forums.
11th Circuit won't reconsider
decision in shield law action
BIRMINGHAM, Ala. A three- bel claim, where he alleges that Yeager
judge panel denied a request by Time, defamed him in an article about Price's
Inc., to reconsider its earlier ruling drunken behavior at a Pensacola strip
that Sports Illustrated reporter Don club.
Yeager would not be pro- Price claims the article's
tected from revealing his SH I TL D statements that he had a
sources under an Alabama L D sexual relationship with the
shield law. LAW S strippers is untrue, and his
The court's earlier ruling lawsuit seeks to reveal the
held that Yeager could rely on the name of Sports Illustrated's source.
First Amendment to refuse to disclose Gary Huckaby, an attorney for
the name of a source until all other Sports Illustrated's parent company
means were exhausted. Time, Inc., has not said whether the
The suit stems from former Ala- magazine will appeal to the U.S. Su-
bama football coach Mike Price's li- preme Court.
High Court takes speech, religion
WASHINGTON Chief Justice John the U.S. Court of Appeals for the 3rd
Roberts will hear arguments in several Circuit.
First Amendment cases that appear on the There, the court ruled that a law
U.S. Supreme Court's docket this fall. requiring colleges and university receiv-
Slated to come before the ing federal funds to offer
nine justices include cases (CO U TT SC military recruiters equal
involving compelled speech, UJ i access to their campuses
government-funded speech was unconstitutional. Doing
and the Religious Freedom Reformation so would require the schools to subsidize
Act. and send a message promoting discrimi-
The First Amendment case likely to nation, the court said.
draw the most attention this fall is Rums- Another case on this term's docket
feld v. FAIR, which comes on appeal from addresses the free-speech rights of
PALATKA Two Putnam County
School Board members have
been cleared of violating the A (
state's Open Meetings Law. -
The school board's at- MEE
torney investigated members
Tom Townsend and Lisa Parsons after
questions arose about their attendance at a
meeting to discuss a school official.
The Sunshine Law does not prohibit
two or more members of the same board
from attending another meeting so long as
they do not discuss board business.
Attorney Jim Padgett did suggest in
a memorandum to the school board that
members analyze attendance at such
meetings to determine whether it might be
OCOEE The State Attorney's Office
has charged an Ocoee city commissioner
with violating the Public Records Law.
Commissioner Danny Howell faces
one second-degree misdemeanor count
and one noncriminal infraction count for
discussing potential city business privately
with another commissioner.
The charges stem from a 2004 phone
call to fellow Commissioner Rusty John-
son, where the two allegedly discussed a
proposed real estate transaction that was
likely to come before the commission.
If convicted, Howell could face 60
days injail and a $500 fine for the misde-
Johnson was not charged.
cases for docket
government employees. It stems from
the punishment of a prosecuting attorney
who revealed a flaw in the case to the
The 9th Circuit analogized the attor-
ney's conduct to that of a whistleblower,
whose speech would be protected by the
At press time, the Supreme Court had
not decided whether it would grant cer-
tiorari in Hosty v. Carter, a 7th Circuit
ruling that deals with the press freedoms
of college students.
FREEDOM OF INFORMATION
Terrorist attacks, hurricanes slow FOIA response
WASHINGTON -The federal gov-
ernment is taking longer to respond to
Freedom of Information Act requests,
according to a recent study by the Society
for Environmental Journalists.
The report, based on interviews with
55 environmental reporters, concludes that
the September 11th terrorist attacks, along
with more recent events such as Hur-
ricane Katrina, have caused government
compliance with the federal freedom of
information law to plummet.
For example, reporter Mark Scheifs-
tein waited more than a week for the En-
vironmental Protection Agency to even
acknowledge the request that he filed on
behalf of The Times-Picayune.
Schleifstein, who is the newspaper's
top hurricane reporter, requested informa-
tion about any chemical spills, accidents
or fires reported to the EPA in the wake of
Among the worst FOIA offenders are the
Labor and Defense departments, the Food
and Drug Administration and the Mine
Safety and Health Administration, accord-
ing to the report.
Court declines to
hear media cases
WASHINGTON --The U.S. Supreme
Court denied certiorari in numerous media
cases this term.
Among the most notable was its decision
not to hear a case involving a large libel ver-
dict against the Boston Globe based on its
refusal to reveal a confidential source. After
the paper refused to name its informant, a
judge granted a default judgment against the
newspaper, which was upheld by the Mas-
sachusetts Supreme Court.
The other cases that the justices turned
down include a copyright infringement case
involving Smithsonian Institution Press and
a libel suit against CBS Television for one
of its late-night talk shows.
To be heard by the Supreme Court, four
justices must vote to grant certiorari. The
justices, as usual, did not give any reasons
for their decision not to take the cases.
A denial of certiorari allows the lower
court decision to stand.
Inquiry turns up no evidence
of Open Meetings infraction
CRYSTAL RIVER A local school ness be conducted in public when the board
board has been cleared of violating the president sent e-mails to board members.
state's Sunshine Law. However, the inquiry found there was no
The State Attorney's Office investi- evidence to indicate that a violation of the
gated the Academy of Envi- law had occurred.
ronmental Sciences' school A C C E SS Assistant State Attorney
board after a complaint was Mark Simpson reviewed
filed against several mem- MEETINGS several e-mails that discussed
bers. the departure of the school's
The complaint, which was filed by director, but he found that the contents of
former Academy Director Lisa Merritt, the e-mails "do not on their face establish a
asserted that the school board violated clear violation of the Sunshine Law by any
the law's requirement that public busi- board member."
2 The Brechner Report U November 2005
Graphic photos remain sealed
in sex case involving teacher
TAMPA Hillsborough Circuit for both the defense and the state to
Judge Wayne S. Timmerman ruled have a fair trial."
that the public will not be allowed to Only a few parties knew the pho-
view graphic photographs of former tos existed before Lafave's attorney,
middle school teacher Debra Lafave. John Fitzgibbons, filed a motion with
Lafave has been accused of having the court to have them sealed.
a sexual relationship with a 14-year- Shortly after the motion was filed,
old student. two area television sta-
Attorneys for both the A C C E SS tions requested to view
prosecution and defense the photographs, which
appeared before Tim- COURTS were taken after the
merman for argument on Temple Terrace police ob-
the issue of whether to release the tained a search warrant for Lafave's
Hillsborough Assistant State At- Fitzgibbons contends that police
torney Mike Sinacore told the judge officers overstepped their bounds,
that the police officers followed the and said he was pleased with the
law while taking pictures of Lafave's judge's decision
genitals as a part of their investiga- "Obviously these photos were a
tion. tremendous invasion of privacy on
Releasing the photographs, he said, Debbie, and we are just glad that the
"would make it much more difficult order was entered," he said.
Copies of case opinions, Florida
Attorney General opinions, or
legislation 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 COURTS CONTINUED
Bill would allow cameras in U.S. Supreme Court
WASHINGTON Supreme Court
TV could become a reality if Congress
passes a bill introduced by Sen. Arlen
Specter (R-Pa.), who is the chairman of
the Senate Judiciary Committee.
Specter introduced the legislation
in the Senate shortly after Judge John
Roberts announced that he was unsure
whether cameras should be allowed in
the nation's highest court.
"Because the Supreme Court of the
United States holds power to decide
cutting-edge questions on public policy,
thereby effectively becoming a virtual
'super legislature,' the public has a right
to know what the Supreme Court is do-
ing," Specter said on the Senate floor.
"And that right would be substantially
enhanced by televising the oral argu-
ments of the Court so that the public can
see and hear the issues presented to the
The legislation would allow cameras
in the courtroom unless a majority of the
court believed the presence of cameras
would violate due process.
The idea of televising Supreme Court
arguments has not been well-received
by all members of the bench. In 1996,
Justice David Souter said, "I can tell you
the day you see a camera come into our
courtroom, it's going to roll over my dead
Five other members of the Judiciary
Committee have also signed on as co-
SHIELD LAWS CONTINUED
WASHINGTON The U.S. District
Court allowed the publisher of an energy
newsletter to rely on the reporter's privi-
lege to fight a subpoena.
But, that privilege was overcome by
the Commodity Futures Trading Com-
mission's need to investigate an energy
marketing company who the commission
believes was attempting to affect natural
gas prices by reporting false data to the
The ruling noted that a decision to
allow a federal agency to overcome the
reporter's privilege must strike a balance
between the test used in criminal cases
and the one applied in civil cases.
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
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Christina Locke, 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 Soci-
ety of Newspaper Editors and the Joseph L Brechner
Miller leaves jail, appears before
grand jury to offer testimony
WASHINGTON New York Times
reporter Judith Miller was released from
federal jail after 85 days when she agreed
to testify before a grand jury investigat-
ing the leak of undercover CIA operative
Valerie Plame's identity.
Miller testified only after she and her
attorneys had secured a voluntary and
personal waiver from her source.
"My attorneys have also reached
agreement with the Office of Special
Counsel regarding the nature and scope
of my testimony, which satisfies my
obligation as a reporter to keep faith with
my sources," she said.
Miller remained in the Alexandria
Detention Center until she was sure that I.
Lewis "Scooter" Libby's decision to allow
her to testify was of his own volition and
had not been coerced.
Miller did not publish any articles on
the subject, but she did testify about con-
versations she had with Libby, who is Vice
President Dick Cheney's chief of staff.
Legislation aimed at establishing a fed-
eral shield law is before Congress.
JACKSONVILLE Five members of
the Jacksonville City Council met in vio-
lation of the state's Open Meetings Law,
according to a lawsuit filed by resident
The lawsuit claims that Suzanne Jen-
kins, Lake Ray, Pat Lockett-Felder, Reg-
gie Fullwod and Mia Jones met May 25
at an Arlington restaurant to discuss the
restaurant's petition for a zoning exemp-
tion that would allow it to serve alcohol
until 2 a.m.
Smitha is a dentist and works across
the street from Arielle's Fine Dining, the
restaurant where the lawsuit claims the
council members toured and dined.
Ray has said in an interview that the
gathering was an inspection trip, even
though a meeting notice posted at city hall
said the visit was for "discussion," accord-
ing to The Florida Times-Union.
After the members toured the facility,
Ray said they talked about their families
and running for the state Legislature.
Law requires that all meetings held to dis-
cuss topics likely to be voted upon be open
to the public, properly noticed and have
Jacksonville Deputy General Counsel
Tracey Arpen said that the city doesn't
believe a violation occurred.
The Brechner Report U November 2005 3
ACCESS MEETINGS CONTINUED
Resident sues city officials for
gathering at local dining spot
"War on Terror" ignites battle for access to court files
In a recent decision in a case brought by The Tampa
Tribune and The New York Times, a federal appeals court in
Richmond, Va., held the government's interest in shielding
details of an investigation into Muslim charities warranted
a judge's blanket decision to seal search warrant affidavits
that are presumptively public record. -
Concluding that the affidavits themselves demonstrated
the need for secrecy, the court affirmed the judge's deci-
sion even though she did not articulate any reasoning until
well after she had agreed with the government's request for (li, .
The law of access to court records is built on a series of pre-
sumptions and burdens of proof -- legal hurdles that judges require
litigants to clear when seeking to close records to the public. Under
The the First Amendment, courts are
Sk P supposed to ensure that closure
B acK JP a e only happens in a narrowly tailored
By Charles D. Tobin fashion, after judges demand rigor-
ous proof of need and articulate
clear and specific reasons for their rulings.
Court rulings touching on the "War on Terror," however such
as the recent decision in Media General Operations and New York
Times Co. v. Honorable Theresa Buchanan, decided on Aug. 1 by
the U.S. Court of Appeals for the 4th Circuit -have tested the limits
of openness. In many of these cases, the courts have allowed closure
where precedent suggests that, in other circumstances, they probably
would have permitted at least limited access.
The case arose out of a March 2002 raid on a group of suburban
Washington, D.C., Islamic think tanks, businesses and homes. In
full view of the press, which had been tipped off about the raids, fed-
eral agents carted off dozens of boxes of records. No charges have
ever been brought against any of the people involved.
Under federal law, once a search occurs, all documents associated
with it are presumptively public record, open to public inspection
at the clerk's office. Just before this raid, however, Alexandria, Va.,
federal magistrate judge Theresa Buchanan agreed to seal the gov-
ernment affidavits based on the U.S. Attorney's motion that simply
said public access "might jeopardize ongoing investigations."
The Tribune and the Times, after the clerk's office would not let
them see any part of the court file, filed a motion asking the mag-
istrate to open the records. At a hearing two months after the raid,
while she agreed that portions of the file had been improperly with-
held, the magistrate continued the seal on the affidavits,
saying that it was "clear and apparent from the affidavits
that any disclosure of the information there would ham-
per an investigation."
Citing well-established precedent in which courts
require parties seeking closure to clearly prove an im-
minent threat, and judges to articulate specific findings
of need and tailor as narrow a closure as necessary,
the newspapers appealed to the 4th Circuit. Neither
). Tobin the government's request nor the judge's after-the-fact
pronouncement cleared the requisite First Amendment
hurdles for closure, the newspapers argued.
But the appeals court reviewed the affidavits and in an 18-page
decision agreed with the magistrate. The appeals court acknowl-
edged that "the press and public enjoy a qualified common law
right of access" to search warrant documents filed with the clerk.
The court held, however, that the magistrate need not have pre-
sented a full discussion of her reasons for sealing the document,
and, instead, was entitled to rely on the government's articulated
need and her own review of the affidavits.
"Where, as here, the government's explanations and the judicial
officer's reasons for sealing are patently apparent upon consid-
eration of the documents at issue and when the record provides
sufficient justification for appellate review, there is no separate re-
quirement that a district court or magistrate judge prepare separate,
The decision -- and a separate part of the ruling that leaves
undisturbed the Alexandria courthouse's practice of keeping the
search-warrant docket book underneath the counter, and noting
sealed warrant papers with cryptic designations only reflects
that as with other civil liberties, courts are increasingly reluctant
to challenge law enforcement decision-making that touches on the
"War on Terror."
Interestingly, the 4th Circuit's decision does not mention that
in October 2003, the magistrate decided to make most portions of
the affidavits public, again deferring to the U.S. Attorney's Office,
which told her that complete secrecy no longer was warranted.
( I,.,, I, D. Tobin is with the National Media Practice Team ofHol-
land & Knight LLP and works in the firm s Washington, D.C. office. Along
with Gregg D. Thomas and Rachel E. Fugate of the firm s Tampa office,
he represented The Tampa Tribune and The New York Times in this case.