The Brechner Report
Volume 20, Number 2
February 1996

A monthly report by: 

• R. Michael Hoefges, J.D., Editor
• Kelly Barber, Production Coordinator
• Anna C. Alonso, Production Assistant
• Sandra F. Chance, J.D., Asst. Director
• Bill F. Chamberlin, Ph.D., Director

Table of Contents

ACCESS MEETINGS
Appeals court upholds Sunshine fine against city
Grand jury report critical of board
County releases meeting records
County attorney says closed meetings OK

ACCESS RECORDS
House panel kills open records bill
Attorney peer reviews will not be released to public
Chamber claims its records not public

ADVERTISING
Court strikes CPA advertising statute

COURTS
Judge refuses gag order request in murder prosecution
Judge rejects request to seal court records

FIRST AMENDMENT
Student suspended for Confederate logos

LIBEL
Judge dismisses group libel case

NEWS NOTES
Media Law Conference coming up in March

PRIVACY
Enquirer privacy suit may proceed

THE BACK PAGE
Victim confidentiality laws mean well but are misguided

Appeals court upholds Sunshine fine against city

DAYTONA BEACH -- The Fifth District Court of Appeal recently held that Dunnellon Mayor Larry Winkler violated the Sunshine Law by not naming two attorneys who attended a private city council meeting. As a result, the city must pay nearly $17,000 in attorney fees.

The private meeting was convened to discuss settlement of a federal Equal Employment Opportunity Commission complaint filed by Dunnellon police Sgt. Luis Aran against the city for harassment.

The Sunshine Law permits city officials to meet privately with attorneys to discuss settlement of a pending legal action against the city, but requires that each person who attends the session be identified to the public by name.

After the secret meeting, Aran filed a state Sunshine Law action against the city for not naming the two attorneys who attended the secret meeting. The trial judge agreed with Aran and ruled against the city, ordering the city to pay Aran's attorney fees incurred in the action.

The appellate court agreed with the trial court. The statute requiring Dunellon to have named the attorney is "neither onerous nor difficult to satisfy," the appellate court wrote. (11/25/95-12/7/95)

Grand jury report critical of board

ST. AUGUSTINE -- A recent grand jury report states that the evidence presented to it "strongly suggests" that members of the St. Augustine/St. Johns County Airport Authority Board conducted public business in private. However, the grand jury did not recommend charging any of the members with a violation of the Sunshine Law.

In 1993, the airport authority's board voted against building a general aviation terminal. The day after the vote, the board voted again and reversed its position.

According to the grand jury report, a former authority member may have facilitated private communications between some board members in the interim between the two votes, which the former authority board member denied.

Also in its report, the grand jury recommended that the state attorney's office monitor the airport authority for Sunshine Law violations and, further, that authority board members receive continuing Sunshine Law training upon assuming office. (10/6/95-12/9/95)

County releases meeting records

BRADENTON -- By unanimous vote, the Manatee County Commission released the transcripts of six secret meetings held in 1994 and 1995 regarding the burning of an experimental Venezuelan fuel, Orimulsion, at a Florida Power and Light plant located in Manatee County.

The action followed a request by attorneys representing the Sarasota Herald-Tribune for a criminal investigation into closed meetings. The Florida Sunshine Law requires that a county commission conduct business in public, but permits limited secret meetings to discuss pending litigation in which the county is a party.

Chief Assistant State Attorney Henry Lee declined to pursue a criminal investigation, stating that an upcoming state hearing on the use of Orimulsion constituted pending litigation. Lee also stated that he could not prove a knowing violation of the Sunshine Law since the commission closed the Orimulsion meetings on the advice of the county commission's legal counsel.

The voluntarily-released transcripts revealed that the commissioners approved a set of environmental safeguards to be implemented by consent by FPL if the state ultimately approved the use of Orimulsion at the Manatee plant. (The Brechner Report, Jan. 1996)(12/6/95).

County attorney says closed meetings OK

PORT CHARLOTTE -- The Charlotte County attorney's office said that a non-profit economic development agency may meet privately to conduct business without violating the Sunshine Law. The agency received county funding in 1995.

The Economic Development Council asked John Hackworth of the Charlotte Sun Herald to leave a budget meeting, adjourning the meeting when Hackworth refused to leave. The Sun Herald next asked the EDC for its position on whether the EDC is a public agency. The EDC then requested a legal opinion from the county.

In 1995, the EDC received a $125,000 grant from the Board of County Commissioners to promote economic development in Charlotte County. The county also paid the EDC $30,000 in 1995 for an economic development study. (12/10/95-12/14/95)

House panel kills open records bill

TALLAHASSEE -- A House subcommittee unanimously rejected legislation that would have permitted the public to find out about pending complaints against licensed professionals, such as a physicians, architects, contractors and cosmetologists, before there has been an official finding of probable cause.

Under current Florida law, complaints are sealed until 10 days after probable cause has been determined by a regulatory agency, a process that can take a year or more. If there is not a probable cause finding on the complaint, the existence and nature of the complaint is sealed.

The House Professional Regulation subcommittee voted 12-0 against the proposed legislation, even though the bill had been drafted its own staff.

The subcommittee's staff drafted the legislation after concluding that sequestering complaints against state regulated professionals until a probable cause finding fails to provide the public with sufficient and timely information about state-regulated professionals in Florida. (12/8/95-12/9/95)

Attorney peer reviews will not be released to public

NEW YORK -- The body that oversees Florida's licensed attorneys voted to keep confidential the names of attorneys who offer comments and testimony about other attorneys during certification peer review procedures.

Florida lawyers may apply for certification as specialists in specific fields of law, such as civil and criminal trial. As part of the certification process, peer reviews of certification applicants are obtained.

Former provisions did not permit consideration of a negative peer evaluation unless the evaluating attorney providing the information was named on the record.

Under new rules passed by the Board of Governors of The Florida Bar, the identities of attorneys providing peer reviews will be kept secret. The procedures provide for an independent review by the Bar of negative comments that are challenged by the applicant.

One board member objected to the new rules, questioning the fairness of not permitting applicants to know who made negative comments about them. (1/1/96)

Chamber claims its records not public

KEY WEST -- The Florida Public Records Law does not require the Greater Key West Chamber of Commerce to release financial records, including its budget, according to an opinion written by the chamber's attorney.

The opinion was prompted by requests made by Key West city commissioners and the editor of a local newspaper for chamber financial records. Some commissioners had questioned the chamber's $10 per month lease agreement with the city for office space. (11/26/95)

Court strikes CPA advertising statute

MIAMI -- A U.S. District judge ruled unconstitutional a Florida statute prohibiting firms that are not certified public accounting firms from advertising that they employ certified public accountants. The statute violates free speech rights of other types of firms that want to advertise that they employ CPAs, the judge held.

The ruling came in a lawsuit filed in Oct. 1994 on behalf of American Express Tax and Business Services, which employs CPAs and provides business planning services, but is not a CPA firm. (12/15/95)

Judge refuses gag order request in murder prosecution

BRADENTON -- Twelfth Judicial Circuit Court Judge Robert Boylston refused to gag attorneys, witnesses or law enforcement officials from providing information concerning a first degree murder case to the news media.

Heather Ciambrone, 27, is charged in the death of her 7-year-old adopted son. Her attorney, a public defender, asked for the gag order to protect Ciambrone's right to a fair and impartial trial.

Judge Boylston ruled that Ciambrone's fair trial rights could be protected by less restrictive means than a gag order, such as by questioning potential jurors about exposure to news media coverage of the highly publicized case.

Ciambrone's attorney also asked the judge to block HRS officials from releasing to the public an investigative summary of its investigation into the death. The judge refused the request, finding that most of the facts contained in the report had already been released to the public.

The Sarasota Herald Tribune and The Bradenton Herald opposed Ciambrone's gag requests. (11/28/95)

Judge rejects request to seal court records

FORT MYERS -- A circuit court judge recently refused to temporarily prohibit public access to court records in two civil land fraud actions against Fort Myers attorney Morton Goldberg.

In a hearing on the matter, Goldberg's attorney argued that documents in the cases should be kept from the public until after attorneys could review them. Tenth Judicial Circuit Court Judge William Norris Jr., specially assigned to the Twentieth Circuit for the case, disagreed, ruling that Goldberg had not established sufficient grounds to prohibit public access to the records even temporarily.

Judge Norris also ruled that Goldberg did not have to answer deposition questions in the civil cases until after his criminal sentencing on mail fraud charges connected with two land purchases and a money laundering charge. Goldberg reached a plea agreement with prosecutors on the criminal charges and was scheduled to be sentenced in February. (11/29/95)

Student suspended for Confederate logos

DELTONA -- Administrators suspended a student for nine days after he wore Confederate logos to school. School officials feared the rebel symbols would be offensive to other students.

Pine Ridge High School student Wayne Denno had been warned not to have a Confederate flag in school. He and other students then wore Confederate symbols on shirts and hats. An assistant principal ordered the students to take off the hats and reverse the shirts. Although they complied, Denno objected and was suspended. (12/15/95-1/4/96)

Judge dismisses group libel case

ORLANDO -- Ninth Judicial Circuit Court Judge George Sprinkel dismissed a group libel suit against three Orlando television stations because the group allegedly defamed was too large in number.

In the suit, 637 Central Florida net fishermen claimed that they were defamed by a political advertisement opposing commercial net fishing. The ad was broadcast by WFTV-Channel 9, WESH-Channel 2 and WCPX-Channel 6.

The fishermen claimed that the political advertisements falsely depicted commercial net fishing practices. None of fishermen were identified individually, though.

Under Florida law, when a group is defamed, an individual member of the group may maintain a defamation action only if the group is small, usually 25 or less in number, and the identity of the individual can be inferred from the defamatory material.

Judge Sprinkel agreed with the television stations that the group of more than 600 fishermen was "too large and diffuse" for any one of them individually to have been defamed by the ad. (Brechner Report, Nov. 1995) (Decisions on File, Adams v. WFTV, No. CI 95-5258 (Dec. 14, 1995)).

Media Law Conference coming up in March

Cable News Network commentators Greta C. Van Susteren and Roger Cossack, who gained national fame during the O. J. Simpson trial, are among the scheduled speakers at the 22nd Annual Media Law Conference set for March 2 in Orlando.

The main conference session will feature a panel discussion of televised trials, including the Simpson case. Workshop topics will include juror access, on-line publisher liability, the Internet and access to records and meetings.

The conference, sponsored in part by The Florida Bar and the Brechner Center for Freedom of Information, will feature a walk-in legal clinic for participants to ask a panel of media law experts questions about libel, access to records and meetings and other related issues.

Registrations for the conference must be postmarked no later than February 14. Registration information may be obtained by calling Toyca Williams at The Florida Bar at (904) 561-5766.

Enquirer privacy suit may proceed

WASHINGTON -- The U.S. Supreme Court let stand the decision of a California appellate court allowing an invasion-of-privacy lawsuit to proceed against The National Enquirer.

In 1992, the Florida-based tabloid newspaper reported that actor Eddie Murphy fathered an illegitimate son with Tamara Hood and was supporting them financially. Hood sued the tabloid in California for invasion of privacy.

Under California privacy law, the Enquirer may be liable for publication of private and offensive facts about an individual if the facts are determined not to have been newsworthy when published.

The state trial judge threw out the lawsuit, ruling that the Enquirer had a First Amendment right to publish factual information. A California appellate court reversed the trial judge, ruling that a jury should determine whether the story was "newsworthy."

The California Supreme Court would not hear the case, which lead to the tabloid's appeal to the U.S. Supreme Court. (12/5/95)

Victim confidentiality laws mean well but are misguided

by R. Michael Hoefges

This article is based in part on a paper presented by the author in Washington, D.C. at the 1995 Annual Convention of the Association for Education in Journalism and Mass Communication.

The U.S. Supreme Court has recognized the special role of a free press as a check on the operations of the government and a conduit of information to the public. This role is especially significant when it comes to the criminal justice system and the Court has acknowledged the keen public interest in vigorous press coverage of how the system deals with crimes. Newly effective statutes in Florida seeking to cloak the identities of alleged sexual assault victims do little to promote vigorous press coverage of the criminal justice system in this state.

In 1995, the Florida legislature passed the Crime Victim Protection Act, which gave birth to a trio of new statutes that limit press coverage of alleged sexual assaults.

One new section makes it a crime for public employees to release information that identifies an alleged sexual assault victim to anyone outside the official investigation. Another new section provides contempt sanctions under many circumstances for those who publish or broadcast the identity of an alleged sex crime victim unless the victim has filed a written consent with the court permitting publication or broadcast of his or her identity. Yet another new section provides a civil cause of action for alleged sex crime victims who are identified to the public prior to open court proceedings and who can demonstrate that the identification was "intentional and was done with reckless disregard for the highly offensive nature of the publication."

In passing these provisions, the legislature relied upon what it called "empirical data" that indicated that 66% of sexual assault victims would be more likely to report an incident with laws in place that would ban or restrict access to, and publication of, their identities. The legislature recognized that "fear of public identification and invasion of privacy are fundamental concerns for victims of sexual crimes." What the legislature did not address is whether the fear of identification by the media is reasonable.

Other empirical data, not cited by the legislature, indicate that sexual assault victims have little chance of being identified by the media and that fears of identification may be somewhat unfounded in most cases. A recent nationwide survey of larger U.S. newspapers indicated that close to 99% of them will not print the names of rape victims even though the overwhelming majority of states do not have statutory prohibitions against it. An earlier study yielded similar results, and both indicated that editors are sensitive to the privacy concerns of all crime victims.

In enacting the Crime Victim Protection Act, the Florida legislature did not cite objective evidence of ongoing systemic abuse of the editorial process when it comes to news accounts of sex crimes. The fact that these statutes are now on the books implies to the public that they are in fact necessary to prevent most sex crime victims from being identified in the media. This may be a faulty assumption based on a few isolated instances such as the highly publicized William Kennedy Smith rape case. Ironically, in that case, the criminal action filed against a Florida newspaper for identifying the alleged victim remained in litigation over two years after Smith was acquitted of the charges.

Certainly, the privacy interests of the victims of all crimes, including those that involve sexual assaults, merit substantial consideration in the editorial process. The purpose here is not to advocate the publication of all truthful information about every crime. However, legislative parenting over how the editorial process deals with information about the criminal justice system feeds the public perception that the editorial process has failed on a systemic level, a perception that may not be justified.

R. Michael Hoefges is a doctoral student in media law at the University of Florida College of Journalism and Communications and the editor of The Brechner Report. He spent eight years in private law practice in Jacksonville.

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