The Brechner Report
Volume 23, Number 7
July 1999

A monthly report:

Irina Dmitrieva, Editor
Jackie Thomas, Production Coordinator
Allyson Beutke, Production Assistant
Jennifer Page, Production Assistant
Bill F. Chamberlin, Ph.D., Eminent Scholar

Sandra F. Chance, J.D., Director

Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611

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Table of Contents

Hospital foundation exempt from law
School board member suspended for law violations

County may release employee’s records
County Commission withdraws request for investigation
City pays Zorc $575,000 to settle multiple lawsuits

Reporter will not serve more jail time for refusal to testify

Airport lifts four-day ban on magazine
Court to decide if graduation messages violate First Amendment

Legislators pass new exemptions to state access laws

Court reinstates defamation suit

Legislature passes nine new exemptions to access laws

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Airport lifts four-day ban on magazine

MIAMI -- The Miami-Dade County officials lifted a four-day ban on sales of a June issue of Cigar Aficionado magazine at Miami International Airport after the county's Mayor Alex Penelas said it was a censorship of free expression. 

The assistant director of Miami-Dade's Aviation Department, Mayra Bustamante, ordered the of ban the magazine at 18 airport's newsstands after deciding that the issue was in "bad taste." The issue featured a Cuba travel guide and urged the United States to lift economic embargo against the communist-led island. Bustamante said the magazine distorted the Cuban life and was flattering to the Cuban government. The ACLU protested the airport's ban and threatened to sue the county. Penelas lifted the ban, saying the ban went "against some of the very principles which make this nation the free society it is." (5/3/99)

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Hospital foundation exempt from law

TARPON SPRINGS -- A circuit judge ruled that a governing foundation of Helen Ellis Memorial Hospital is exempt from the Public Records Law, and denied the St. Petersburg Times' request to view the foundation's minutes. 

The Tarpon Springs Hospital Foundation that runs Helen Ellis Memorial Hospital filed a suit against the St. Petersburg Times in 1997 to prevent the Times and other publications from looking at its records. 

In 1998, the Florida Legislature enacted an exemption to the state access laws for non-profit foundations that manage public hospitals. Judge L. Ralph Smith Jr., 2nd Judicial Circuit, held that this exemption applies to Helen Ellis Memorial Hospital. He also ruled that the foundation may properly deny the public records requests, such as that of the Times. 

The Times said it would fight any attempt by the hospital to recover court costs in connection with the suit. 

In January, the Florida Supreme Court held that private corporations running public hospitals in Volusia County are subject to the state access laws. The Court did not rule on the constitutionality of the 1998 exemption. (Brechner Report, March 1999) (5/6/99)

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Reporter will not serve more jail time for refusal to testify

WEST PALM BEACH -- A circuit judge ruled that Miami Herald reporter, David Kidwell, who refused to testify in the 1996 murder trial of John Zile, will not serve more jail time for contempt of court, but has to pay $111 in court costs.

 Judge Roger Colton, 15th Judicial Circuit, reduced Kidwell's original 70-days sentence to the 15 days the reporter already served in the Palm Beach County Jail. The judge also waived the $500 fine imposed on Kidwell. 

Kidwell refused to testify about his jailhouse interview with Zile, found guilty of murdering his stepdaughter. A federal judge released Kidwell from jail, saying Florida law on the matter was vague. 

On appeal, the state Supreme Court remanded the case to the lower court saying that, to force a reporter's testimony, the state must show that the sought information is relevant, is unobtainable from other sources, and there is a compelling need for it. (Brechner Report, May 1999) 

Kidwell's attorney argued that the reporter's testimony is no longer needed since Zile has already been convicted. (5/6/99)

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County may release employee’s records

TALLAHASSEE -- Florida Attorney General Robert Butterworth ruled that a clerk of court may release the social security numbers of county employees to comply with an audit request by the county workers' compensation carrier.

The Public Records Law provides that the social security numbers of all current and former agency employees contained in agency employment records are exempt from public disclosure. However, the opinion states, an insurance carrier does not act as a member of the public when requesting the social security numbers to complete the audit.

Butterworth wrote that counties must provide all information requested by an insurance carrier to secure the workers' compensation coverage. (4/28/99)

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Court reinstates defamation suit

WEST PALM BEACH -- A state appeals court reinstated a defamation suit against Paxson Communications Corp. and two radio hosts accused of describing a person as a drug-using homosexual during a radio show.

Morgan Linden Anson sued the company, which owns WFTL- AM radio station, and two radio hosts, Steven Kane and Nick Lawrence, for making allegedly false statements about him during a June, 1997, broadcast.

Judge Leonard Stafford, 17th Judicial Circuit, threw out the suit, saying Anson was not sufficiently identified on the show, and any comments were just opinions. The appeals court disagreed, saying that labeling statements as opinion does not shield the radio hosts from claims of defamation. (5/6/99)

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County Commission withdraws request for investigation

NEW PORT RICHEY -- The County Commission voted to withdraw its request for the Florida Attorney General's opinion on whether the county attorney, Karla Owens, violated the Open Meetings Law by privately polling commissioners.

The controversy arose after Owens told Commissioner Steve Simon that the County Commission would not support his proposal to ban short-term house rentals. According to the St. Petersburg Times, Owens privately polled commissioners and communicated her findings to Simon prior to the discussion of the issue at a public meeting.

Owens, who recently resigned from the position she held for 13 years, contended that she knew about commissioners' views because the issue has been controversial for several years and commissioners have previously voted on it.

The Attorney General's Office asked the County Commission to withdraw its request for investigation because of many factual discrepancies in the accounts given by Simon and Owens. (5/6/99)

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Court to decide if graduation messages violate First Amendment

DUVAL COUNTY -- A federal appeals court ruled that the Duval County's school board policy allowing student-initiated graduation messages, which could include prayer, violates the First Amendment's establishment clause.

In 1993, the county's school board adopted the policy that the graduating class could elect to have two minutes of uncensored speech to open or close their graduation ceremony. A student volunteer would deliver the message, be it secular or religious, without a prior review by the school.

Several students and two parents, Stella Finck and Roberta Nord, sued the school board claiming the policy violated the federally-mandated separation of state and church. A federal district judge denied the group's request to prohibit the policy.

Judges from the 11th Circuit Court of Appeals overruled the district court's decision, saying that the policy conveys governmental endorsement of religion and coerces unwilling students to participate in religious exercise. (5/11/99)

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School board member suspended for law violations

PENSACOLA – Gov. Jeb Bush suspended indefinitely Escambia County School Board member, Vanette Webb, after she spent seven days in jail for violating the Public Records Law. If Webb does not resign, she could face a trial before the state Senate.

In May, Judge Pat Kinsey, First Judicial Circuit, sentenced Webb to 11 months and 15 days in jail and ordered her to pay a $1,000 fine for knowingly withholding public records from a parent who has been critical of Webb. However, the judge suspended all but 30 days of the sentence. (Brechner Report, June 1999)

Judge William White, who took over the case, released Webb on a $2,000 bond pending her appeal, after she spent seven days in the Escambia County Jail.

Judge Kinsey disqualified herself from the case saying Webb testified untruthfully under oath. Kinsey said that when a judge concludes that a party has lied on the stand, "that judge may be disqualified from hearing subsequent actions involving the untruthful party."

According to the Brechner Center’s prosecution database, Webb may be the first state public official who served a jail time for violating the Public Records Law. Webb also may be the second school board member suspended for violating the state access laws. In 1992, then-Governor Lawton Chiles suspended a Hernando County School Board member, Diane Rowden, for Open Meetings Law violations. (5/25/99)

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City pays Zorc $575,000 to settle multiple lawsuits

VERO BEACH -- The city of Vero Beach signed a $575,000 settlement agreement with Frank Zorc to end all legal disputes between the parties going back "to the beginning of the world."

Zorc sued Vero Beach City Council, claiming the council violated the state access laws. In December, an appellate court agreed with Zorc and ruled that the city officials violated the Open Meetings Law during a series of closed-door meetings in 1995. (Brechner Report, March 1999)

Zorc also sued the city claiming it violated his civil rights in retaliation for his suits. The city, in turn, sued Zorc, trying to evict him after he refused to pay rent and taxes on property he leases at the Vero Beach Municipal Airport.

The settlement ends all legal battles between the city and Zorc, including the appeal pending in the Open Meetings lawsuit.

Zorc's attorney will receive nearly $290,000 from the settlement. The city will withhold another $36,722 until Zorc pays his real estate taxes. (5/4/99)

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Legislators pass new exemptions to state access laws

The following list is a compilation of bills from the Florida Legislature’s 1999 session. More information about the session cab be accessed at <http://> , which is the Florida Legislature’s Online Sunshine site. The recent status of Gov. Jeb Bush’s action on the bills can be found at <"" , which is Governor’s Office web site.

Bills that passed:

HB 11 (Trovillion, R- Winter Park): Makes it a first-degree misdemeanor to falsely identify oneself when arrested or lawfully detained by a law enforcement officer. The offense is published as a third degree felony if a false name given to law enforcement is a real name of another person. Provides that a person, whose name or other identification was illegally used, may obtain court orders to correct any public record because it contains false identification information.

HB 49 (Trovillion, R - Winter Park): Makes it a third degree felony to fraudulently use or possess with intent to use any personal identification information without consent. Makes it a first-degree misdemeanor to use or attempt to use personal identification information to harass, or inflict substantial emotional distress on, an individual. Defines personal identification information broadly to include name, address, social security number and other identification numbers, fingerprints, voice print and unique electronic identifying codes.

HB 219 (Crow, R - Dunedin): Provides that any confidential information received by the Statewide Public Guardianship Office must remain confidential. Also creates an exemption from the Public Records Law for all records held by the agency which relate to "the medical, financial, or mental health of vulnerable citizens," such as elderly persons, disabled adults, persons with developmental disabilities or with mental illness.

HB 223 (Constantine, R - Altamonte Springs): Provides that a governmental entity intending to file a suit against another governmental entity has a duty to negotiate prior to litigation. Also provides that a defending governmental entity is not required to hold a noticed public meeting to discuss the proposed litigation, if three-fourths of its governing body find that an immediate danger to the health, safety, or welfare of the public requires immediate action. After the initiation of the conflict resolution, government entities must give a public notice of a conflict assessment meeting. If, during this meeting, the dispute is not resolved, a joint public meeting must take place.

HB 357 (Fasano, R - New Port Richey): Makes confidential the strategic plans of any hospital subject to the Public Records Law, if competitors are likely "to frustrate, circumvent, or exploit" the purpose of the plans before their implementation. Creates an Open Meetings Law exemption for the hospital governing board when discussing an exempt strategic plan, requiring that the closed meeting be recorded by a certified court reporter. Transcripts of the closed meeting become public record three years after the date of the meeting, or after strategic plan is disclosed or implemented, whichever is earlier. Provides that if a governing board closes a meeting before implementation of the plan, the board must hold a public meeting to inform the public, in general terms, of the business activity to be implemented.

HB 391 (Futch, R - Indialantic): Allows the Florida Department of Law Enforcement to provide nonexempt criminal history records to qualified entities for the purpose of conducting background checks on employees and volunteers. Provides that a subject to the check has the right to obtain a copy of a screening report and to challenge its accuracy and completeness. Also allows the department to develop a criminal justice information network, a data-sharing network for the state criminal justice agencies. Provides that each office of the public defender shall have online access to the state criminal records nonexempt from the Public Records Law.

HB 1015 (Feeney, R - Oviedo): Requires the State Technology Council to create a Task Force on Privacy and Technology. By February 1, 2000, the task force will make recommendations to the Legislature and the Governor regarding: privacy and the use of advanced technology; technology fraud including credit card and identity theft; and the sale of public records to private entities. The task force will also study how to balance the traditional openness of public records in the state with the need to protect the privacy and identity of individuals. Also repeals the statutory provision allowing the Department of Highway Safety to sell photographs and other driver’s license and state identification card information on file.

HB 1081 (Goodletter, R - Naples): Exempts from the Public Records Law home addresses, telephone numbers, social security numbers, and photographs of employees of any licensed health care facility providing direct patient care or security services. Also makes confidential the same information regarding employees’ spouse or child, including their places of employment and locations of schools and day care centers. Also creates a similar exemption for any employee of a licensed health care facility who has a "reasonable belief that release of the information may be used to threaten, intimidate, harass, inflict violence upon, or defraud" him or her, and the employee submits a written request for confidentiality.

HB 1927 (Eggelletion, D – Lauderdale Lakes): Provides that area agencies on aging under Department of Elderly Affairs are subject to the Public Records Law and also subject to the Public Meetings Law, when considering any contracts requiring the expenditure of funds. Requires the Agency for Health Administration to publish and make publicly available health maintenance organization report cards.

HB 2121 (Argenziano, R – Crystal River): Exempts from the Public Records Law the records of quality-of-care monitoring visits to nursing homes conducted by the Agency for Health Care Administration. However, public would still have access to the reports of conditions, which threaten the health or safety of a nursing home resident.

SB 80 (Grant, R - Tampa): Provides that companies helping businesses and governmental agencies solve the Year 2000 computer date problem must keep confidential any scientific, technical, or commercial information they acquire in the process of work. Prohibits, and imposes sanctions on, the release of such information without the express written permission from the business or governmental agency.

SB 180 (Comprehensive Planning, Local and Military Affairs Committee): Exempts from the Public Records Law all proprietary business information, including names, billing addresses and trade secrets of wireless service providers, submitted by a wireless communications service provider to the Florida Wireless 911 advisory board or Department of Management Services.

SB 674 (Brown-Waite, R- Brooksville): Exempts from the Public Records Law medical and other personal information about patients of a licensed home medical equipment provider, which is received by the Agency for Health Care Administration through reports or inspection.

SB 928 (Cowin, R - Leesburg): Exempts from the Public Records Law any information identifying a deceased child’s surviving siblings, family members or others living in the home of the deceased, in records and reports created by the State Child Abuse Death Review Committee. Exempts from the Open Meetings Law the portions of the Committee’s meetings which relate solely to child fatalities and discuss specific persons and events. Provides that confidential information obtained by the Committee retains its confidential status. Also provides that all information and records acquired by the state and local committees are confidential and not subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceedings.

SB 1596 (Bronson, R - Indian Harbour Beach): Exempts from the Public Records Law court documents identifying a pregnant minor who seeks to terminate her pregnancy and petitions for a waiver of the parental notification requirements.

SB 2350 (Carlton, R- Osprey): Makes confidential business records provided by a business owner to a governmental condemning authority as part of an offer of business damages pursuant to an eminent domain proceeding. A business owner, who requests confidentiality of such records, must demonstrate that their disclosure would likely cause substantial harm to his or her competitive position.

Bills that did not pass:

HB 43 (Harrington, R- Punta Gorda): Would have exempted from the Public Records Law all personal identifying information in state motor vehicle records.

HB 51 (Heyman, D- North Miami Beach): Would have required a person wishing to inspect or copy a public record to supply his or her name and address, date of birth, and proof of identity.

HB 159 (Bitner, R- Port Charlotte): Would have allowed ex parte communications between legislators and Public Service Commission members.

HB 193 (Lawson, D- Tallahassee): Would have allowed disclosure of an address, phone number, or social security number of a public employee to the employee’s certified bargaining agent upon written request.

HB 205 (Murman, R- Tampa): Would have required the clerk of the court to merge a person’s juvenile and adult criminal history records if the person commits a felony before age 24. Would have provided that juvenile records showing offenses and their dispositions are public record.

HB 517 (Sember, R- Vero Beach): Would have repealed a Public Records Law exemption for records of private companies that lease public hospitals or other public health facilities. Would have also repealed the Open Meetings Law exemption for meetings of the corporations’ governing board.

HB 685 (Henriquez, D- Tampa): Would have exempted from state access laws records and meetings of a domestic violence fatality prevention task force.

HB 839 (House Tourism Committee): Would have made confidential information held by the Office of Film Commissioner regarding the identity, trade secrets, and plans of entertainment companies seeking to locate or expand any of their business activities in the state, or applying for a sales and use tax exemption, when such confidentiality is requested.

HB 879 (Boyd, D- Monticello): Would have required insurance carriers to limit disclosure of health information if an individual stated in writing that disclosure of such information could jeopardize his or her safety.

HB 1433 (Casey, R- Gainesville): Would have made confidential records held by the Department of Health or emergency medical services (EMS) licensees regarding allegations of impairment by emergency medical technicians or paramedics; identifying information about students in emergency medical technician or paramedic programs; EMS licensees against which complaints have been filed; and patients transported or treated by EMS licensees.

HB 1575 (Murman, R- Tampa): Would have exempted from the Open Meetings Law those meetings held by state Departments of Children and Family Services, Labor and Employment Security, Health, Revenue, and the WAGES program, which regard information identifying individuals who applied for or are receiving temporary assistance. Would have also created a Public Records Law exemption for such information.

HB 1843 (House Committee on Health Care Licensing and Regulation): Would have created a Public Records Law exemption for adverse incident reports filed with the Department of Health by a medical or osteopathic physician. Adverse incidents include incidents resulting in death, brain or spinal damage, surgery on a wrong patient, and performance of an unnecessary surgery.

HB 2049 (Bush, D- Miami): Would have created a Public Records Law exemption for information revealing the identities of complainants and alleged violators of fair housing practices contained in records held by the Commission on Human Rights.

HB 2153 (Barreiro, R- Miami): Would have provided that contracts for the purchase and sale of real property for educational purposes by school boards must be considered and approved in a public meeting. Would have allowed the board, the superintendent, and appropriate staff to meet, under certain conditions, in closed-door sessions to discuss pending negotiations concerning the acquisition of real property. The records of such executive sessions would have been confidential.

SB 2 (Senate Judiciary Committee): Would have made confidential all papers and records pertaining to a petition to terminate parental rights pending adoption.

SB 166 (Brown-Waite, R- Brooksville):Would have made it a crime for any person to initiate, or attempt to initiate, contact with a person directly involved in the tactical operations of a law enforcement agency, including kidnapping and taking of hostages. Would have also prohibited live audio and video broadcasting of tactical operations in progress.

SB 846 (McKay, R- Brandenton):Would have provided that all communications in a court-ordered mediation proceeding, other than an executed settlement agreement, are exempt from the Public Records Law.

SB 922 (Kirkpatrick, R- Gainesville):Would have created exemption from the Public Records Law for donors to direct-support organizations for Florida Affordable College Trust.

SB 1172 (Rossin, D- West Palm Beach):Would have exempted from the Public Records Law information provided to state attorneys and sheriffs by persons who take minor children fleeing from domestic violence.

SB 1198 (Mitchell, D- Jasper):Would have required lobbyists who request a state legislator to sponsor or oppose a bill to disclose to the Office of Legislative Services whether the bill would directly benefit a registered lobbyist or political committee that has contributed more than $100 to the legislator’s campaign. This information would have been public record.

SB 1302 (Geller, D- Hallandale):Would have made confidential documents provided voluntarily by an insurer to the Department of Insurance or the Department of Legal Affairs, if such documents were prepared by the insurer at the request of counsel as part of the insurer’s program to enhance compliance with the Florida Statutes’ provisions.

SB 1342 (Mitchell, D- Jasper):Would have made confidential all records and evidence of domestic violence experienced by an employee who has applied for unemployment compensation, except when the employee believes that the disclosure is necessary to protect his or her safety.

SB 1718 (Silver, D- North Miami):Would have exempted from the Public Records Law home addresses and telephone numbers of municipal employees who are human resources practitioners making decisions that affect employment actions.

SB 1764 (Kirkpatrick, R- Gainesville):Expressed legislative intent to establish Public Records Law exemption for certain international trade and economic development data that are "in the nature of trade secrets."

SB 1838 (Childers, R- Pensacola):Would have allowed any pubic official, employee, or agent of a governmental entity to participate in a closed-door meeting between that entity and its attorney to discuss pending "or imminent" litigation, to which the entity is "or may be" a party.

SB 1980 (Dyer, D- Orlando):Would have exempted from the Public Records Law information that identifies a benefactor, a designated beneficiary, or any details about their individual accounts in the Florida College Savings Program.

SB 2178 (Silver, D- North Miami):Would have made confidential certain information obtained by the Department of the Lottery in connection with the establishment and operation of video lottery games. Also would have exempted from the Public Records Law the street address and the phone number of a winner of a video lottery game.

SB 2194 (Thomas, D- Tallahassee):Would have created a Public Records Law exemption for documents submitted by insurers, health maintenance organizations and others in response to a competitive procurement by the State Group Insurance Division for employee-benefit-related plans. Also would have exempted from the Open Meetings Law portions of meetings at which responses to the competitive procurement process were discussed.

SB 2544 (Bronson, R- Indian Harbour Beach):Would have exempted from the Public Records Law the personal financial records, trade secrets, or proprietary information of an applicant for financial assistance from Florida Commercial Space Financing Corp.

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Legislature passes nine new exemptions to access laws
by Barbara Petersen

During the 1999 legislative session, the First Amendment Foundation tracked approximately 70 open government bills legislation that would make some change to either the Public Records Law or the Sunshine Law, usually in the form of a new exemption. Midway through session, things were looking pretty bleak. A few "bad" bills had passed the House, and others were moving through various Senate committees at an alarming rate. However, the vast majority of bills being tracked died at some point during the legislative process, and only nine new exemptions (compared to 16 last year) were passed. Most of the bills that did pass were amended to address constitutional issues raised by the Foundation, and nearly all were sufficiently narrowed. As of this writing (early June), only three of the bills have become law, including one, SB 2350, we had asked Governor Bush to veto based on constitutional issues raised by the breadth of the exemption.

Senate Bill 2350 creates a public records exemption for all business records provided by the owner of a business to a governmental condemning authority as part of an offer of business damages pursuant to an eminent domain proceeding. The stated purpose of the exemption is to protect sensitive business records, but the bill exempts both sensitive and non-sensitive business records and thus, we believe, violates the narrowness standard for exemptions found in Article I, section 24, of the Florida Constitution. The Governor approved the legislation on May 26 (Ch. No. 99-224), and it takes effect on July 1, 1999.

The other two exemptions approved by the Governor to date are SB 180, creating an exemption for all proprietary business information, including the name and billing addresses of service subscribers submitted by a wireless communications service provider to the Department of Management Services, and SB 928, exempting certain identifying information in records or reports created by the State Child Abuse Death Review Committee which relate solely to child fatalities. Both of these bills become effective on July 1, 1999.

Other new exemptions created during the 1999 Legislative Session include: certain, specified records held by the Statewide Guardianship Office (CS/HB 219); records and meetings of public hospital boards relating to written strategic plans (HB 357); medical records of patients of a home medical equipment provider obtained by the Agency for Health Care Administration (SB 674); home addresses and telephone numbers of public health care facilities providing direct patient care or security services (HB 1081); identifying information of minors seeking a waiver of the notice requirements under the Parental Notice of Abortion Act (SB 1596); and records of quality-of-care monitoring visits to nursing homes conducted by the Agency for Health Care Administration (HB 2121). This bill suffers from the same constitutional problems as does SB 2350, and we have asked the Governor for a veto.

One other bill that passed, HB 1015, could have a significant impact on next year's session. Under the legislation, the State Technology Council, part of the Department of Management Services, is required to create the Task Force on Privacy and Technology for the purpose of studying and making recommendations to the Legislature and Governor regarding privacy, public records, and the use of advanced technologies; technology fraud, including the illegal use of a citizen's identity and credit; balancing the openness of public records with the need to protect privacy and the identity of individuals; and the sale of public records to private individuals and companies. We anticipate a fair number of proposed exemptions to be filed as a result of this study.

Barbara A. Petersen is the executive director of the First Amendment Foundation in Tallahassee.

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