The Brechner Report
Volume 23, Number 12
December 1998

A monthly report:

ACCESS MEETINGS
Hernando County commissioners did not violate law
Hospital meetings should be accessible

BACKPAGE
Supreme Court rulings align Florida with federal law

BROOKSVILLE – State Attorney Brad King said two Hernando county commissioners and an assistant county attorney did not violate the Sunshine law when discussing a new ordinance during a recess in a public meeting. Allegations of a Sunshine Law violation arose after a Hernando Today reporter overheard county commissioners discussing a proposed solicitation ordinance during a workshop recess immediately preceding the board’s vote on the ordinance. According to Hernando Today, Sullivan overheard conversation between commissioners in which one described her amendment to the ordinance restricting roadside solicitation. Florida’s Open Meetings Law prohibits commissioners to engage in private discussion of any issue that may come for a vote before a board, whether they talk directly to each other or through a conduit.  However, King said that because the commissioners did not stand face-to-face during the communication and did not use an assistant county attorney as a conduit, there was no violation of the law. (10/02/98)

Suit challenges records exemption

TAMPA – The Miami Herald and St. Petersburg Times together with the First Amendment Foundation filed a lawsuit in a federal district court challenging a state law that blocks public access to voter registration records while allowing access to government agencies and politicians. Under Florida’s Public Records Law, individual citizens and media can "examine" voter records but can not "make copies or extracts" from them. However, municipalities, government agencies, candidates, incumbent officeholders, and political parties with action committees are exempt from this limitation. According to the complaint, the state law violates the First Amendment by creating the "preferred groups" of citizens without showing any substantial government interest for doing so. (10/03/98)

Juvenile's felony arrest records sealed

GADSDEN COUNTY -- A circuit court judge sealed a record of felony charges in a murder case to protect a juvenile's right to privacy. Octavius Gilliam, 16, is charged with a first-degree murder and armed robbery for the shooting death of Peggy Long Cook during the robbery of the Pat Thomas Allstate Insurance Agency in Havana in August 1996.   Originally, Gilliam was charged as an adult and his felony records were open to the public. However, Circuit Judge William Gary has sealed the records after Gilliam's confessions were ruled inadmissible and prosecutors transferred the case into juvenile court.  The Tallahassee Democrat plans to appeal the ruling and to ask that the record of Gilliam's felony charges remain public. (10/03/98)

Hospital meetings should be accessible

VERO BEACH – A circuit court judge determined that Indian River Memorial Hospital’s meetings should have been open to the public. The determination was part of a larger ruling from Judge Ben Bryan, 19th Judicial Circuit, regarding the validity of the hospital’s lease.  The hospital had denied access to all previous meetings, claiming that Florida’s Open Meetings Law was only applicable to actions relating to hospital management and activities within the physical confines of the hospital. Judge Bryan said that definition was too narrow. According to the open meetings law and the hospital’s contract, meetings should have been open the public, Judge Bryan said. (10/16/98)

Police department, Church of Scientology settle lawsuit

CLEARWATER – The Clearwater Police Department settled a lawsuit with the Church of Scientology over 40 boxes of police intelligence files about the church. The church sued the police department in 1994 to block public access to the records. In accordance with the settlement, the church will drop the suit if the police department makes a "good faith review" of the intelligence files and destroy any files the department deems unnecessary. The city had previously rejected the settlement because it required the police department to notify the church’s attorneys immediately by phone of fax when anyone requested access to the records. The church removed the requirement and the city agreed to the settlement. (10/31/98)

Newspapers say news rack ordinance unconstitutional

MADEIRA BEACH -- The St.Petersburg Times and Tampa Tribune sued Madeira Beach, claiming that the city’s new ordinance regulating news racks violates their constitutional right to free speech. The suit, which was filed in federal court for the middle district of Florida, said that the ordinance violates free speech rights because it regulates the type and positioning of news racks within the city. It limits a number of news racks from any one vendor and the distance between groups of news racks. News racks are also prohibited within certain distances of intersections.  Madeira Beach City Attorney Andy Salzman is negotiating with the newspapers to resolve their objections to the news racks ordinance. (10/06/98)

Names of those charged with solicitation may be printed

FORT PIERCE – The Fort Pierce City Commission voted to publish in newspaper advertisements the names of alleged "johns" who solicit prostitutes. The information in the ads will come directly from law enforcement incident reports after arrests are made but before convictions. The council hopes the policy will embarrass "johns," leading to a decrease in solicitation.  The council has not yet determined what the plan will cost, or whether newspapers in the area will be willing to print the ads. (10/20/98)

FCC fines radio station for two indecent broadcasts

CLEARWATER – The Federal Communications Commission fined WXTB radio $23,000 for airing indecent material. The FCC levied the fines after Todd "Bubba the Love Sponge" Clem aired a song that was a parody of the Clinton/Lewinsky scandal, and a dialogue about a radio station staff member receiving an enema. Conservative activist David Caton complained to the FCC, saying the broadcasts were indecent because they contained language that described sexual and excretory activities in patently offensive terms, and that the broadcasts aired during times when there was a reasonable risk that children were in the audience. (10/23/98)

Family blames Tampa station for prisoner's murder

TAMPA – The family of a convicted murderer sued a radio station, alleging the station offered a $1,000 award for his death.  The family of Donald Glenn McDougall filed suit against WTKS-FM . McDougall was serving a 34-year sentence for the beating and starvation killing of a 5-year-old girl in 1982.  The radio station allegedly encouraged inmates to prevent McDougall’s possible early release during the week of the broadcast. McDougall’s family said the radio station offered the reward as an incentive. The prison placed McDougall into protective custody following the broadcast. Within hours of McDougall’s release into the general prison population, inmates beat him to death.  After McDougall’s death, the inmate convicted of McDougall’s murder said he was outraged by the facts in McDougall’s case, which he had heard on the broadcast. (10/2/98)

Gag order issued in tobacco trial

MIAMI – A circuit court judge issued a gag order during the trial in one of the nation’s first class-action lawsuits by smokers against the tobacco industry. Judge Robert Kaye, 11th Judicial Circuit, said none of the participants could speak with the media because it might affect witnesses’ testimony. During pretrial proceedings, attorneys routinely spoke with the media or held press briefings in a courtroom reserved for the media. The lawsuit seeks $200 billion in damages from the tobacco industry on behalf of approximately 500,000 sick Florida smokers. (10/17/98)

Schools limit access to library books

FLORIDA -- Two Florida school districts have made plans to limit access to two library books after complaints from parents. West Hernando Middle School, in Brooksville, will not allow direct access to the library’s copy of the Stephen King book, Cujo. Instead, students will have to get parents’ written consent before being allowed to borrow the book. The parent of a student complained to the school’s principal about the book because it contained descriptions of sex and profanity. The Highlands County School Board voted to limit access to Roald Dahl’s The Witches in all libraries in its school district. The book is a fictional story about how witches live. Parents of students in the district complained that the book may frighten children or give them violent ideas. The board said the book could only be checked out to students in the fifth grade or higher, or to students who can have the book read aloud to them by an adult who would explain certain passages that might be considered in bad taste by the community. (10/9/98 – 10/26/98)

Eye clinic sues nonprofit agency for libel

TAMPA -- A Largo eye clinic has filed a libel suit against a small non-profit foundation that questioned the validity and effectiveness of the clinic's age-related blindness treatment in e-mail messages to potential patients. According to RheoTherapy Centers of Tampa Bay, a volunteer for the Macular Degeneration Foundation exposed the clinic to "hatred, contempt and ridicule" through unfair characterization of its practices in e-mail replies to public's inquiries about the clinic.  According to news reports, the volunteer said in the e-mail communications that RheoTherapy's treatment is experimental in nature and has not undergone the amount of scientific study usually sought by physicians before marketing a new therapy to patients. In January 1998, state regulators closed RheoTherapy for 11 days, charging its experimental procedure could be dangerous to elderly patients. (10/6/98)

Oklahoma candidate sues Tampa station

TAMPA – A former Oklahoma judicial candidate sued a Tampa radio station for invasion of privacy, alleging the station broadcast private messages from her answering machine. Paula Sage said in her complaint that WFLZ-FM broke the security code on her answering machine and accessed, then broadcast the messages. Sage failed in her attempt to capture a district level judicial seat in Shawnee, Okla. (11/1/98)

Florida Supreme Court grants reporters' privileges

TALLAHASSEE – The Florida Supreme Court decided three reporter’s privilege cases in which it said that three reporters who interviewed participants in court cases did not have to testify about those interviews. Two of the cases involved interviews with defendants in criminal cases, one involved an interview with a defendant in a civil case.  In Florida v. Davis, the court determined that there is a qualified common law reporter’s privilege against the disclosure of nonconfidential information relevant to a criminal proceeding. In its reasoning, the court said that it used a three-pronged balancing test to determine whether the government established that: (1) the reporter possesses relevant information; (2) the same information is not available from alternative sources; and (3) the government has a compelling need for information the reporter may have.  In Davis, a defendant in an aggravated assault case was attempting to get a St. Petersburg Times reporter to testify about an interview with the assault victim ( Brechner Report, June 1997). The court determined that because the reporter was not a witness to the assault, she did not have to testify. The court used the Davis balancing test in both Kidwell v. State and Morris Communications Corp. v. Frangie. In Kidwell v. State, a reporter interviewed a defendant charged with first-degree murder (Brechner Report, August 1997). The defendant had also confessed to the police. The court held that Kidwell was not required to testify about his knowledge of the case because the defendant had given similar information to the police. In Morris Communications Corp. v. Frangie, a reporter interviewed a defendant in a civil case. The court held that because the sole difference from Davis and Kidwell was that the reporter interviewed a defendant in a civil case, the reporter also had a qualified privilege.  After all of these cases were argued before the court, the Florida Legislature enacted a qualified reporter’s privilege. (10/22/98)

Supreme Court rulings align Florida with federal law
By David Bralow

    After more than three years of uncertainty for reporters, a contempt conviction, and numerous incidents of intrusion into the newsgathering process, the Florida Supreme Court has unequivocally ruled in three separate cases that there is a qualified common-law privilege that protects journalists' non-confidential information.
    Journalists and media attorneys celebrate the reversal of a judicial trend that saw courts giving little recognition to the privilege in non-confidential settings. However, these Supreme Court opinions also demonstrate the Court’s antipathy for reporters’ interviewing trial participants, including victims and defendants. Furthermore, the Court left in tact prior Florida Supreme Court rulings that the common-law privilege does not apply when a reporter witnesses or photographs a crime or an arrest or has physical evidence of a crime.
    In the three opinions handed down in October, Florida's highest court reversed opinions in the First, Second and Fourth District Courts of Appeal that severely limited the reporter’s privilege to only confidential information.
    In the first case, Kidwell v. State, a state trial court sentenced Miami Herald reporter David Kidwell to 70 days in jail for contempt after refusing to testify about his jail-house interview with the murder defendant John Zile. The Fourth District Court of Appeal upheld the trial court. Kidwell was subsequently released from jail by a federal court in a habeas corpus proceeding.
    The second case, State v. Davis, involved a reporter for the St. Petersburg Times reporter who interviewed a crime victim. The trial court refused to permit the deposition of the reporter. The appellate court reversed holding that there is no privilege for non-confidential information.
    The third case, Morris Communications Corp. v. Frangie, involved a reporter for the Florida Times-Union. The trial court held that there was no qualified privilege for non-confidential information in civil as well as criminal cases.
    The Supreme Court's decisions come just five months after the Florida Legislature gave journalists similar statutory protection. Like the new statute, the Supreme Court's ruling shields most newsgathering information unless a judge finds a compelling need exists for information that is relevant to a pending case and that the journalist alone possesses. This test applies whether or not a confidential source is involved.
    Because the privilege is qualified, there still will be some cases when reporters are forced to testify. For example, in Davis, the Court suggested that the privilege claim by a St. Petersburg Times reporter should have yielded to the criminal defendant's interest in obtaining the reporter's testimony. A criminal defendant's constitutional rights to compulsory and due process, the court explained in Davis, are factors trial courts must consider in applying the qualified privilege. The Court also indicated that preventing the deposition might also infringe the defendant’s right to confront witnesses under the Sixth Amendment.
    Previously, most analysts maintained that the compelling interest prong of three-part balancing test that historically accompanied the assertion of reporters’ common-law privileges included due process considerations. Clearly, there is a compelling interest in ensuring defendants that they receive all process that is due. Previous courts in Florida and in other jurisdictions have had no trouble accommodating traditional due process concerns when applying the three-part test.
    After the Davis case, however, it is unclear whether the Court intended to strip out the due process consideration out of the compelling interest test and create a fourth and separate due process prong. Another interpretation is that the Court announced a warning that it remains uncomfortable when reporters interview criminal defendants and witnesses because such interviews are outside the criminal process. By referencing the right to confront witnesses and the due process clause, the Court implies that those interviews are part of the judicial process.
    Regardless of the appropriate interpretation, Davis and the Kidwell represent a great victory for the media and make clear that reporters’ non-confidential information is subject to significant and extensive protections. By citing the recently passed legislation, the Court reaffirmed the position of the media that the common-law and the shield law were similar and that the Legislature did not provide journalists any special rights or privileges.
    Equally important, this opinion places Florida back in the mainstream of states that recognize these privileges and makes the state law consistent with the federal law. Thus justice will not be different in Florida depending on whether the reporter is subpoenaed in a federal or state proceeding.

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