The Brechner Report
Volume 20, Number 8
August 1996

A monthly report of mass media law in Florida

• R. Michael Hoefges, J.D., Editor
• Eric Fritz, Production Coordinator
• Bobbie Stewart, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Sports authority members violated meetings law
Foundation must open meetings

ACCESS RECORDS
Disney security files ruled private
DCA upholds fees judgment against board
AG says complainants names private
Paper awarded fees in public records suit

COURTS
Judge restricts media coverage

OBSCENITY
Court upholds obscenity convictions against comic book author

ADVERTISING
Judge says car dealer may not use ad slogan

CIRCULATION
Papers agree to newsrack changes to settle lawsuit

FIRST AMENDMENT
DCA rules that nude sunbathing not protected speech

REPORTER'S PRIVILEGE
Judge allows subpoena for reporter
TV station ordered to surrender tape
Prosecution allowed to subpoena reporter

THE BACK PAGE
Media serve public's right to know in Adam Walsh case

Disney security files ruled private

ORLANDO - Judge Belvin Perry, 9th Judicial Circuit, held that the Public Records Law does not apply to the private security police force that patrols Walt Disney World.

The judge stated that the Public Records Law does not apply to private companies that employ their own security forces.

The ruling came in a public records action filed by Robert and Kathlyn Spikema, who are seeking Disney security documents concerning the death of their 18-year-old son, Robb.

The Spikemas also filed a wrongful death action against Disney and claim that Robb was killed in an accident after Disney security officers tried to stop the pickup truck in which he was a passenger.

The Spikemas argued unsuccessfully in the public records case that the Disney force should be treated like a public law enforcement agency.

Disney's 24,000-acre resort in Central Florida is governed by the Reedy Creek Improvement District, an independent district created by the state legislature in 1967. Disney officers perform police duties that include making traffic stops, conducting searches and obtaining evidence. (3/21/96-6/27/96)

DCA upholds fees judgment against board

WEST PALM BEACH - The 4th District Court of Appeal upheld a judgment against the Palm Beach County School Board awarding attorneys' fees and court costs incurred by The Palm Beach Post and the Ft. Lauderdale Sun-Sentinel in a public records lawsuit.

The papers sued the school board in 1994 to obtain a survey conducted by Profile Marketing Research. The company polled parents for their opinions on reducing school crowding with schedule changes. (Brechner Report, January 1995)

The trial judge, Judge Moses Baker of the 15th Judicial Circuit, ruled earlier that the school board violated the Public Records Law by refusing to release the survey.

Baker awarded $30,163 in attorneys' fees and court costs to the newspapers. (Brechner Report, May 1995) Baker also ordered the research company to pay the newspapers an additional $345. (6/6/96)

AG says complainants' names private

TALLAHASSEE - In a recent opinion, Attorney General Bob Butterworth stated that the Ethics Commission of the Town of Longboat Key is subject to the confidentiality provisions of the Florida Whistle-blower's Act.

The Whistle-blower's Act contains a Public Records Law exemption making confidential the identity of an individual who reports a legal or ethical violation by a public official or employee.

According to the opinion, confidentiality is intended to prevent retaliatory action against individuals making complaints against public agencies.

A Longboat Key ordinance makes complaints to the Ethics Commission public and requires complainants to sign a confidentiality waiver.

"The Ethics Commission for the Town of Longboat Key may not require a complainant to sign a waiver of confidentiality before accepting a whistle-blower's complaint for processing," Butterworth stated in the opinion. (Decisions on File, Fla. Atty. Gen. Op. 96-40 (June 5, 1996))

Paper awarded fees in public records suit

FORT MYERS - Judge R. Wallace Pack of the 20th Judicial Circuit awarded the Fort Myers News-Press $2,054 for attorney's fees and court costs incurred by the newspaper in a successful lawsuit to gain access to a law enforcement tape.

The ruling came in a lawsuit filed by the News-Press against state attorney Joseph P. D'Alessandro after D'Alessandro's office refused to turn over a prosecution surveillance audiotape of a Fort Myers city council member.

In a prior ruling, the judge ordered D'Alessandro's office to provide access to those portions of the tape that already had been released to the council member's attorney. (Brechner Report, June 1996)

The council member was accused of soliciting undue compensation. (Decisions on File, News-Press Publishing Co. v. D'Alessandro, Case No. 96-2743-CA-RWP (June 19, 1996))

Judge restricts media coverage

FORT LAUDERDALE - Judge Arthur Birken of the 17th Judicial Circuit granted a motion to restrict coverage of the custody proceedings involving a girl whose mother is charged with aggravated child abuse.

In his order, the judge limited reporting of personal information about the adult relatives who have offered to take care of the child, Jennifer Bush, 9.

State officials allege that Jennifer's mother, Kathy Bush, suffers from Munchausen syndrome by proxy, an unusual psychological condition in which a parent purposely makes a child ill to gain attention. Officials are seeking to remove custody from Bush.

The Miami Herald, the Ft. Lauderdale Sun-Sentinel and WPLG-TV opposed the motion.

In a previous ruling, Birken refused to close all proceedings to the media. (Brechner Report, July 1996) (6/5/96)

Court upholds obscenity convictions against comic book author

CLEARWATER - Judge Douglas Baird of the 6th Judicial Circuit upheld two obscenity convictions against cartoonist Michael Diana, whose homemade comic books depict rape, murder, drug use, mutilation, child abuse and Satanism.

Diana was arrested after an undercover Pinellas County sheriff's deputy bought one of Diana's Boiled Angel comic books by mail. (Brechner Report, May 1993)

In 1994, a county court jury found two of Diana's comic books obscene and convicted him of publishing and advertising obscenity. (Brechner Report, May 1994)

After his conviction, County Court Judge Walter Fullerton sentenced Diana to three years of probation with eight hours of community service each week during the probation.

Diana also was fined $3,000 and ordered to have no contact with minors, complete a journalism ethics course and submit to a psychological evaluation and continued drug testing.

On appeal, Baird threw out the drug testing requirement, finding no evidence that drug use was a factor in the case. Baird also threw out the advertising conviction since Diana had not yet drawn the books at the time he solicited potential buyers for them.

According to a report in the St. Petersburg Times, the comic book industry has spent $56,000 on Diana's defense so far. (6/1/96-6/4/96)

Sports authority members violated meetings law

TAMPA - Special prosecutor Jerry Hill concluded that three members of the Tampa Sports Authority violated Florida's Open Meetings Law by attending a closed meeting of business leaders convened to discuss a new stadium for the Tampa Bay Buccaneers.

Hill wrote in a letter to Gov. Lawton Chiles that he did not recommend prosecuting the authority members, however, because they stayed in the meeting based on "very bad advice" from authority attorney Donald Gifford.

Hill concluded that the authority members, Hillsborough County Commission Chairman Jim Norman, Tampa City Council member Ronnie Mason and developer Mandell "Hinks" Shimberg, asked Gifford "about their responsibilities under the Sunshine Law" and stayed in the meeting after Gifford authorized them to do so.

Gifford said he concluded that the meeting was being conducted in the sunshine because, for one reason, several Tampa Tribune employees were there.

The Tribune reported that publisher Jack Butcher and three Tribune opinion writers were at the meeting. The meeting was closed to the public and other media representatives. (Brechner Report, May 1996) (5/29/96-5/30/96)

Foundation must open meetings

TALLAHASSEE - In a recent opinion, Attorney General Bob Butterworth stated that the Astronauts Memorial Foundation, a non-profit corporation set up to construct an astronauts memorial at the Kennedy Space Center, is required to comply with Florida's Open Meetings Law.

As grounds for the opinion, Butterworth stated that the foundation is charged with creating an educational foundation subject to the approval of the Florida Department of Education.

Also, Butterworth stated, the foundation receives substantial state funding from the proceeds of the sale of Challenger license plates to state motorists. (Decisions on File, Fla. Atty. Gen. Op. 96-43 (June 6, 1996))

Judge says car dealer may not use ad slogan

SANFORD - Judge Wallace Hall of the 18th Judicial Circuit granted a temporary injunction prohibiting a car dealership, Bennett Automotive of Orlando, from using an advertising slogan used by a competitor, Bob Dance Dodge of Longwood.

Bob Dance filed a trademark infringement lawsuit against William Bennett after Bennett started using a slogan that Dance claims he already was using.

In the suit, Dance claims that he has used the disputed slogan, "where everybody rides," in television and newspaper advertising in Central Florida since 1974.

Dance also asked the judge to prohibit Bennett from featuring a dog in advertisements for Bennett Automotive, but Hall declined.

Dance claims that he has used his Lhasa apso, Buster, in his ads since 1986. Bennett uses his yellow Labrador, Turbo, in his ads. (4/26/96-5/16/96)

Papers agree to newsrack changes to settle lawsuit

CORAL GABLES - The Exito newspaper has agreed to use beige newsracks with lettering no larger than 2.5 inches high to settle a court case challenging city newsrack regulations.

In 1991, Exito, a Spanish language newspaper, refused to change its distinctive purple newsracks to conform with city regulations requiring beige and brown newsracks with letters no higher than 1.75 inches high.

The paper's publisher, Gold Coast Publications, then sued the city and claimed that the regulations violated the paper's First Amendment rights.

In 1994, the 11th Circuit of the U.S. Court of Appeals ruled that the regulations were constitutional. (Brechner Report, February 1995) Last year, the U.S. Supreme Court refused to review the decision. (Brechner Report, November 1995) (5/30/96)

DCA rules that nude sunbathing not protected speech

WEST PALM BEACH - The 4th District Court of Appeal reversed a Palm Beach County court ruling that Florida's breach of the peace statute violates the First Amendment of the U.S. Constitution.

As a result, the district court ruled that a woman arrested under the statute for nude sunbathing could not sue state officials for malicious prosecution and violation of her civil rights.

The statute makes it a second degree misdemeanor to "commit such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency," among other things.

T. A. Wyner was arrested after she disrobed on a state park beach and covered the front of her body with a copy of the Bill of Rights. She had notified state officials before the event and brought the press and several supporters with her to the beach.

The district court relied on decisions of the Florida Supreme Court and a federal court of appeal holding that the act of nude sunbathing could be punished under the Florida statute without violating the First Amendment. (Decisions on File, DeWald, et. al. v. Wyner, 21 Fla. L. W. D1169 (May 15, 1996))

Judge allows subpoena for reporter

FORT MYERS - Judge William J. Nelson, 20th Judicial Circuit, ruled that a reporter may be subpoenaed by the state to testify about his interview with criminal defendant charged with vehicular homicide.

After the accident in question, the Fort Myers News-Press published an article by Bob Norman that included statements made by Adam F. Searles, the defendant in the criminal proceedings.

Searles is reported to have consumed alcohol prior to the accident.

In his order, Nelson concluded that the information sought from Norman is relevant to the criminal charges, that there is no alternative source of the information, and that the state has a compelling need for the information to prosecute the case. (Decisions on File, Florida v. Searles, Case No. 94-1980-CF-WJN (June 5, 1996))

TV station ordered to surrender tape

TAVARES - Judge Don F. Briggs of the 5th Judicial Circuit ordered WESH-TV Channel 2 to turn over the unedited tape of an interview with a member of the jury that convicted 15-year-old Keith Johnson of premeditated murder.

In the interview aired after the trial, juror Dawn McGlon told WESH reporter Kathy Marsh that a police videotape of Johnson's confession had convinced her of his guilt and that she had been surprised that Johnson did not take the stand.

The judge relied on a 1991 Florida Supreme Court ruling that a television journalist did not have a qualified privilege to refuse to produce non-televised portions of a videotaped interview with a criminal defendant in police custody. (5/22/96)

Prosecution allowed to subpoena reporter

SHALIMAR - Judge G. Robert Barron of the 1st Judicial Circuit refused to quash a subpoena requiring a Ft. Walton Beach newspaper reporter to testify for the prosecution at a murder trial.

Northwest Florida Daily News reporter Mike Fuhrman interviewed a suspect accused of killing a retired state attorney's office investigator. The prosecution then subpoenaed Fuhrman to testify about the interview and the newspaper moved to quash the subpoena.

The newspaper did not plan to appeal the trial judge's ruling. (6/8/96)

Media serve public's right to know in Adam Walsh case

By Earl Mauker

In the Adam Walsh case, it took a suit by the Sun-Sentinel and three other newspapers to wrest records of the 15-year-old investigation from the Hollywood Police Department.

Displeased with that outcome, George J. Terwilliger III, attorney for John and Reve Walsh, complained that "the media forced the issue," and said: "What you saw in court ... was a contest between justice for a 6-year-old boy who was brutally murdered and the insatiable appetite for the media for these files. Justice lost."

Wrong, Mr. Terwilliger. Justice won.

You see, the philosophy goes back about 200 years, when it was decided the United States would be self-governed. By the people, for the people ... Independent. A sovereign people. Not a sovereign government.

This means the taxpayers who pay for services such as law enforcement, courts, schools and city government have a responsibility to watch over those who provide the services, and a right to know what they are up to. In the case of elected officials, or those who seek office, the media provide information that will allow the public to make informed choices.

In Florida, the expectation that the public's business will be done in public is confirmed by an open records law.

Yet the Hollywood Police Department steadfastly refused to comply with the law's provisions when newspapers requested files from the Walsh investigation. So last year, the Sun-Sentinel, the Palm Beach Post, the Mobile (Ala.) Press Register and the Miami Herald asked the court to make those files public. At that time, Judge Leroy Moe of the 17th Judicial Circuit told the police they could keep the files confidential for a bit longer, but cautioned that there was a limit to just how long. (Brechner Report, December 1995)

The judge ruled earlier this year, it's time. (Brechner Report, April 1996) Only one week before the judge's ruling, the Broward State Attorney's Office had joined the fray by saying it never had an opportunity to examine the files.

Hello? Where had the State Attorney's Office been for the past 15 years? Judge Moe didn't buy it, and rightly so.

The papers involved in the lawsuit did not want to impair any investigation. But tens of thousands of dollars have been spent investigating the grisly murder of Adam Walsh. Rumors and innuendo have trickled out over the years; bits and pieces of the investigation have been leaked.

By all indications, the investigation was going nowhere. Why? The public has a right to know.

Fifteen years ago, John Walsh came to the newspapers seeking publicity about his missing son. He knew then that public scrutiny might help. One thing for sure is that it's hardly likely to do any harm now to a 15-year-old investigation.

It is not a question of the media's claiming privileges that go beyond the rights of the public, but rather of the media's playing their role in the public's right to be informed.

Florida's public records law says any citizen may request access to governmental proceedings at both the state and local levels. It further states that the information must be made public unless specifically exempted. Such exemptions might include negotiations for the sale or purchase of property by a public board, for example, discussions between public boards and its attorney--or active police investigations.

Judge Moe referred in his decision to the legal protections that guarantee that public access, and he rightly ordered the release of the investigative files. If the media doesn't fight these battles, who will? And who will let the public know?

Earl Maucker is Vice President and Editor of the Sun-Sentinel in Fort Lauderdale.

Return to the Online Issue Index

Return to the Brechner Center Homepage