The Brechner Report
Volume 22, Number 2
February 1998

A monthly report

• Michele D. Bush, Editor
• Jackie Thomas, Production Coordinator
• Sarah Rabin, Production Assistant
• Stacey Silver, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Judge rules hospital plan exemption unconstitutional
Prediction in college's pre-election press release a fluke
City cancels ads over paper's lawsuit

FIRST AMENDMENT
Miami Mayor threatens to yank ads
Parents, clergy file suit to block classes
Jury awards for rights violation
Judge allows state to seize profits from Rolling work

COPYRIGHT
Disney refuses to allow character folk art display at eatery

ACCESS RECORDS
Sheriff's drug investigation files not exempt after conviction
Murder trial transcripts posted on Web
Judge cites privacy for denying records

NEWS & NOTES
Media law conference to meet in Miami
New Editor takes over Brechner Report

THE BACK PAGE
Technology can remove barriers to free information

ACCESS MEETINGS

Judge rules hospital plan exemption unconstitutional

DAYTONA BEACH – The Fifth District Court of Appeal has ruled unconstitutional an exemption to the Open Meetings Law that allows public hospitals’ governing boards to meet in closed sessions to discuss strategic plans.

Judge Charles M. Harris affirmed the 7th circuit court’s decision that the exemption is too broad and violates Florida’s Constitution. Judge Harris said that because the exemption did not define "strategic plan," the term could be construed to permit limitless discussion in the closed sessions.

Because the issue is of statewide concern, Judge Harris certified the case to the Florida Supreme Court. He withheld acting on his order pending the Florida Supreme Court’s review of the case.

Prediction in college's pre-election press release a fluke

DAYTONA BEACH – Two officials at Daytona Beach Community College said a news release that accurately predicted the outcome of a board vote was based on an assumption, not an illegal poll of board members.

The college’s vice president of planning, Kay Quarles, and the new marketing and public relations director, Dolores Sistrunk, said they discussed the board’s upcoming agenda as Sistrunk was deciding what items to write news releases about. Quarles said she told Sistrunk that she "assumed" the board’s chairman and vice chairwoman would be re-elected.

Sistrunk then prepared, and Quarles approved, a news release, complete with a made-up quote for college President Phil Day, reporting that the two board leaders had been re-elected. The release was distributed 10 minutes before the meeting began.

The chairman and vice chairwoman were re-elected unanimously. Both said they did not discuss the vote before the meeting, which would have been a violation of the Open Meetings Law. (8/16/97)

City cancels ads over paper's lawsuit

PUNTA GORDA – The City Council asked its staff to stop publishing legal notices in the local newspaper because the paper is suing a city agency over an alleged Open Meetings Law violation.

The Sun Herald suit claims that the city’s Community Redevelopment Agency violated the Open Meetings Law by negotiating privately with a developer for Laishley Park, a waterfront park. The developer, David Waltemath of New Orleans, plans to construct a complex of condominiums, offices and retail shops on the site.

The city planned to switch its ads to the Sarasota Herald-Tribune. The Sun Herald said it would continue to run the legal notices for no cost as a public service if the city pulled its advertising from the Sun Herald. A city report said Punta Gorda spent $8,058 on legal advertising in the paper in 1996-97. (9/18/97)

FIRST AMENDMENT

Miami Mayor threatens to yank ads

MIAMI – Miami Mayor Xavier Suarez threatened to pull all city advertising contracts from the Miami Herald unless the newspaper became "a lot nicer to me, my people, my citizens and my city," according to a report in that newspaper and audio recordings of the mayor’s threat.

The mayor left the threat on a telephone answering machine at the Miami Herald’s advertising department in the wake of news stories about the mayor’s campaign supporters alleging voter fraud. Suarez said in the message that he would find any other possible means of avoiding advertising with the newspaper if he does not receive better treatment.

The city’s advertising decisions are the responsibility of the city commission and the city manager. The city spends about $200, 000 annually on Miami Herald advertising that includes legal notices. (1/7/98)

Parents, clergy file suit to block classes

FORT MYERS – Parents, clergy and other community members filed a federal suit to block Bible study curricula in area public schools.

The Lee County School Board adopted curricula that focus on the Old and New Testaments as historical documents. (Brechner Report, December 1997). The classes started in January at Lee County high schools.

The suit alleges that the course curricula are not objective teachings of the Bible, but instead foster a pro-Christian belief system. Therefore, the plaintiffs are maintaining that the curricula are unconstitutional, and they are asking for the classes to be canceled. (12/10/97)

Jury awards for rights violation

FORT MYERS – A federal jury decided that a state attorney owes a former prosecutor $200,000 for violating her First Amendment rights.

The U.S. Middle District jury ruled that State Attorney Joseph D’Alessandro, 20th Judicial Circuit, violated Melissa Skeen’s constitutional rights by firing her for testifying against his wishes in a child abuse case.

Skeen, who prosecuted child abuse cases for five years, was subpoenaed to testify in the child abuse case for which she claimed she was fired. D’Alessandro testified that he fired Skeen not for testifying, but because she went out of her way to participate in the case, even after he asked her not to.

The monetary award compensates Skeen for financial losses and embarrassment. D’Alessandro said he plans to fight the $200,000 figure. (12/12/97).

Judge allows state to seize profits from Rolling work

GAINESVILLE – A circuit judge ruled that profits from the sales of books and stories about convicted serial killer Danny Rolling will go to the state, rather than to Rolling’s ex-fiancé, Sondra London.

London asserted that she is a journalist chronicling the mental insights of Rolling, who murdered five University of Florida college students in 1990. She said Rolling has received no compensation from the stories, art and autographs London sells.

In her ruling, Judge Martha Ann Lott, Eighth Circuit held that because London shares a unique and special relationship with Rolling, she is subject to a Florida law that bars convicted felons from profiting from their stories artwork and autographs. Lott cited contracts between London and Rolling, love letters and a marriage they conducted on the Internet.

According to the ruling, the state may seize more than $20,000 London received for a series of tabloid articles and a book, "The Making of a Serial Killer," that she co-wrote with Rolling. (1/1/98-1/3/98)

COPYRIGHT

Disney refuses to allow character folk art display at eatery

ORLANDO – Walt Disney World told the owner of a House of Blues restaurant opening on Disney property that he could not display 60 pieces of folk art he commissioned for the restaurant because they featured folk renderings of copyrighted Disney characters.

Isaac Tigrett, owner of the House of Blues chain of restaurants and entertainment halls, said he was disappointed but respected the company’s decision. He said he was unsure what he would do with the 60 pieces of art.

The House of Blues was scheduled to open at West Side Disney, a waterfront entertainment and retail complex, on Sept. 15.

A Disney spokeswoman said the company is "very careful" about the use of its characters and trademarks. An agreement between Disney and its tenants bars the use of Disney character representations by third parties without the company’s permission. (8/29/97)

ACCESS RECORDS

Sheriff's drug investigation files not exempt after conviction

PALM BEACH - The Palm Beach County Sheriff’s Office must disclose closed criminal investigation files concerning a felon’s drug arrest and conviction, the Fourth District Court of Appeal has ruled.

Convicted felon Carl R. Christy filed suit against the sheriff’s office seeking access to the investigation records of his case. The sheriff’s office refused Christy’s request, arguing that the files contained information from an active criminal investigation and included the identities of confidential informants and undercover personnel, which is exempt from public disclosure, according to Florida’s Public Records Law.

The Fourth District Court of Appeal held that the sheriff’s office did not meet its burden in establishing that the investigation records were exempt. The court reasoned that the definition of active includes the requirement that the information will lead to the "detection of ongoing or reasonably anticipated criminal activities." The court noted the files being sought were generated during a criminal investigation thirteen years ago. Christy was convicted and has already served his sentence for the offense.

The court also rejected arguments from the sheriff’s office that the records should not be disclosed to protect the identities of undercover personnel. That information could be redacted, the court said, and the rest of the record released. (9/17/97)

Murder trial transcripts posted on Web

SARASOTA – A circuit judge teamed up with a newspaper to provide daily transcripts from a murder trial on the newspaper’s Website as an experiment in access to court records.

The Sarasota Herald-Tribune newspaper posted the court reporter’s computerized notes, from which official court transcripts are later made, from the Joseph Ciambrone murder trial. Ciambrone was charged with the 1995 death of his adopted son.

Judge Gilbert Smith, 12th circuit, said court reporters’ notes are not public records freely available to anyone, but because there was heightened public interest in the case, it was beneficial to make accurate information available as quickly as possible. Gilbert also released the notes as a way to test the Internet as a way in increase accessibility to court documents.

The transcripts are available at the newspaper’s Website, Newscoast, at: www.newscoast.com. (12/6/97-12/7/97)

Judge cites privacy for denying records

MIAMI – A federal district court judge refused to order the U.S. Customs Service to give an attorney the names and addresses of people charged with violating the law in customs forfeiture cases, citing privacy exemptions to the Freedom of Information Act.

Judge Federico Moreno, U.S. District Court for the Southern District of Florida, ruled that the privacy interests of the people charged outweighed the public’s interest in disclosure.

In his ruling, Moreno rejected the argument that U.S. House and Senate reports accompanying the Electronic Freedom of Information Improvements Act reflected a Congressional intent to provide government documents, "for any public or private purpose." Judge Moreno said Congress did not mean to reject a 1989 Supreme Court decision that held that Congress intended the FOI Act only as a means to "know what the government was up to." (12/15/97)

NEWS & NOTES

Media law conference to meet in Miami

The future of media law will be the topic of discussion among journalists and attorneys at The Florida Bar’s 24^th Annual Media-Law Conference, which is scheduled for March 21 in Miami. Speakers at the conference will include Tom Brokaw, anchor with NBC News; Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press; and David Lawrence, publisher and chairman of the Miami Herald.

Three general sessions will focus on the effects of tabloid reporting on the media, Florida journalists’ privilege and the impact of the Internet on the media. Some of the individual workshops will be center on defamation, copyright, crisis coverage and access to public records.

Registrations for the conference must be postmarked no later than Feb. 20. To obtain registration materials or more information about the conference, "Media Law Approaches the Millennium," people interested should contact Toyca Williams at (850) 561-5766.

New Editor takes over Brechner Report

GAINESVILLE – Michele D. Bush, a graduate student in media law at the University of Florida’s College of Journalism and Communications, will begin serving as editor of the The Brechner Report, beginning with this issue.

Bush received her bachelor’s degree in journalism from the University of Florida.

Before entering the graduate program at UF, Bush was a government reporter at the Sun Herald in Charlotte County, Florida, and reporter for Florida Living magazine in Gainesville.

She plans to focus her graduate research on state laws controlling access to information.

Bush succeeds Anthony L. Fargo.

THE BACK PAGE

Technology can remove barriers to free information

By Robert Craig Waters

Using cutting edge technology, the Supreme Court of Florida in partnership with Florida State University began broadcasting its oral arguments live in late 1997 by satellite and over the Internet. The experience epitomized the way technology can dramatically flatten barriers to freedom of information. And a controversy that erupted from it also showed how this "new openness" still can be thwarted by those who control a particular kind of technology. 

Using a $300,000 legislative grant, FSU's School of Communications installed new equipment making the new broadcasts possible. After an initial test run on FSU's television cable outlet, the Court's arguments were first broadcast live on the Internet using RealPlayer technology in October 1997 (http://wfsu.org/gavel2gavel/). This literally made Court arguments available live via an Internet connection anywhere on earth.  Satellite broadcasts followed in November, available for downlink in all of North America. 

Yet the Chief Justice's request for free time on a satellite bought by the state for educational purposes led to an unexpected roadblock.  Largely through the reports of Peter Wallsten of the St. Petersburg Times, we learned that the state's educational satellite was chiefly used by private companies that leased the time at $800 an hour.  Although these profits were put into an educational account, very little of the actual satellite time was being used for educational purposes, partly because state agencies were charged a "reduced" rate of $300 an hour. In the meantime, most of the available time on the satellite was going unused. 

Had editorial boards around Florida not supported the Court, it also would have been forced to pay the $300-an-hour fee. Although the state granted free time on a temporary basis, no final decision has been rendered on the Chief Justice's request at this writing, though state officials have showed significant support. 

These kinds of controversies undoubtedly will appear with increasing frequency. The reason is simple. Information technology increasingly determines how "free" information really is. Those who control the technology also control the information. And the problem is only magnified when the technology is actually owned by someone.  The Court's venture into Internet broadcasting demonstrates the potential that exists for a true flattening of barriers impeding freedom of information. Florida's Supreme Court has foreshadowed the day when television programming is broadcast free to a world-wide audience via "Netcasting." In a short time Netcasting could entirely eliminate the need for satellite-based transmissions like those the Court now uses.   And in a few years, the costs of Web-based television will be low enough that similar channels could be offered by huge numbers of persons and organizations. These would only supplement the enormous Web-based libraries already going on line world-wide, offering information for free that once cost dearly. 

Yet, this is a future that still can be thwarted. The "open standards" model of the Internet--based on technology no one owns--is a sore thorn in the side of powerful interests. The constant turn over of Web-based technology opens more and more avenues these interests can exploit. Many companies and more than a few nations are making a bid to control whatever technology eventually dominates the distribution of information.

The outcome will affect both the press and our society at large far into the next century. Its importance can be demonstrated by looking at another time in history when a new technology revolutionized the distribution of information. When the printing press was invented, nations quickly divided themselves into those where the press was free and those where it was not. Only from the former did the Western democracies emerge.

 Robert Craig Waters is Executive Assistant to Chief Justice Gerald Kogan and created the Florida Supreme Court Home Pages on the Internet. He also serves as the Court's public information officer, and from 1979 to 1983 was an award-winning journalist with the Gannett Newspapers in Florida.

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