The Brechner Report
Volume 22, Number 4
April 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
State attorney will file no charges for "town business" lunches
City of Boca Raton settles with paper out of court
City interviews twice to avoid violation
AGO determines advisory boards should be open to public

FIRST AMENDMENT
Nine students jailed, not charged, under state hate crimes law

REPORTER'S PRIVILEGE
Appeals court: Subpoena stands, reporter required to testify
Judge quashes reporter’s subpoena and cautions excessive use

COURTS
Jurors’ identities shielded to protect from harassment
Judge rules TV station must release tourists’ video
Executed search warrants can be exempt from disclosure
Lawsuit against school district administrators dismissed

ACCESS RECORDS
Judge orders child abuse records released

OBSCENITY
Library board votes to limit Internet access
Jury rules man’s T-shirt not illegally obscene

THE BACK PAGE
"Chicken soup" laws undermine the public trust

ACCESS MEETINGS

State attorney will file no charges for "town business" lunches

PALM BEACH – The Palm Beach County State Attorney’s Office dropped charges against Highland Beach Mayor Arlin G. Voress, who was accused of violating Florida’s Open Meetings Law by meeting with county commissioners for lunch to discuss "town business."

Voress, who charged the meals to the town credit card and wrote on the receipts that the discussion focused on town business, said he was discussing the aspects of a proposed water contract.

The state Open Meetings Law allows exemptions for "fact-finding" meetings. Prosecutors dropped the charges against Voress because they could not prove he was doing anything more than fact finding. (2/10/98)

City of Boca Raton settles with paper out of court

BOCA RATON – The city of Boca Raton agreed to pay The Palm Beach Post $27, 836.45 to settle an open meetings lawsuit out of court.

The Post sued the city in July 1997, contending that the city’s policy of settling claims between $10,000 and $50,000 is illegal. The city changed its policy in January 1998. It now requires that all settlements of $5,000 or more go to a public hearing and require a vote.

The settlement the city agreed to pay the Post is for half of the paper’s legal fees. The city used in-house attorneys, and therefore it did not incur additional legal fees. (2/11/98)

City interviews twice to avoid violation

DANIA – City Commissioners reinterviewed candidates for the city attorney position because of possible violations to Florida’s Open Meetings Law.

Candidates for the position complained to the vice mayor that they were required to leave the room for each attorney’s interview, but Interim City Attorney Tim Ryan was allowed to stay. Ryan was also interviewing for the position.

After discussing the issue with independent counsel, the city commissioners decided that each of the seven attorneys vying for the position be given the chance to interview again – with each attorney allowed to stay in the room for the other presentations. (2/1/98)

AGO determines advisory boards should be open to public

TITUSVILLE – Community advisory committees established to encourage citizen involvement are subject to state Open Records and Public Meetings laws, according to a recent opinion from Florida’s Attorney General Bob Butterworth.

The city of Titusville considered establishing a community advisory committee made up of residents appointed by city council. The committee would make recommendations for city improvements to the council based on input from other city residents.

Butterworth determined that such a committee would be subject to the requirements of the Open Records and Public Meetings laws because Florida courts have held that advisory boards that make recommendations to a public agency and possess no authority to bind the agency should make their meetings accessible to the public. The entire decision-making process must be available for public access, Butterworth wrote in AGO 98-13.

However, citizen groups that meet to discuss common concerns and develop issues to be presented to another committee for consideration are not open to the public because they are not governmental boards or commissions as defined by law, Butterworth wrote. (2/16/98)

FIRST AMENDMENT

Nine students jailed, not charged, under state hate crimes law

MIAMI – Nine high school students were arrested and jailed under Florida’s hate crime law, but they were never charged. The state attorney in Miami decided not to charge the students because she said the statute was probably unconstitutional and unenforceable.

The students, five girls and four boys aged 16 to 18, were arrested for publishing a 20-page booklet depicting rape and assault on people of color. They spent a night in the Miami-Dade county jail, and all nine were suspended from school for 10 days.

State Attorney Katherine Fernandez Rundle released a statement supporting the arrests, but explaining that she dropped the charges against the students because recent Supreme Court decisions interpret similar statutes to violate rights guaranteed by the First Amendment.

Florida’s hate crime law is a misdemeanor that forbids the anonymous publication of material containing evidence of prejudice based on race, color, ancestry, ethnicity, religion, sexual orientation or national origin. (2/28/98)

REPORTER'S PRIVILEGE

Appeals court: Subpoena stands, reporter required to testify

TALLAHASSEE – The First District Court of Appeal denied a motion to quash a subpoena requiring a reporter to testify about information from a nonconfidential source.

The appellate court affirmed a lower court ruling, which held that Mike Bianchi, a reporter for the Florida Times-Union, must testify because Florida law does not recognize a privilege for a reporter’s nonconfidential sources. The information sought from Bianchi came from a nonconfidential source, for which no qualified privilege exists.

Attorneys for Bianchi argued that their client should not have to testify because under the First Amendment, Bianchi was entitled to a qualified privilege. (1/30/98)

Judge quashes reporter’s subpoena and cautions excessive use

FORT LAUDERDALE –Judge John Miller, 17th Judicial Circuit, quashed a reporter’s subpoena because, he said, reporters need some degree of protection from the "annoyance and harassment" of subpoenas from parties in civil suits.

Judge Miller’s order quashed a subpoena from Coastline Business Corporation to Sun-Sentinel sports reporter Jason Cole. The judge said he did not order Cole to testify because his testimony would have been irrelevant to the suit.

Judge Miller cautioned that excessive subpoenas could harm the process of newsgathering, which is essential to the dissemination of public information. Using excessive subpoenas in private litigation can have a chilling effect on the press, Miller wrote.

The Florida Supreme Court is considering a case that would limit the reporter’s privilege to situations involving confidential sources. (1/12/98)

COURTS

Jurors’ identities shielded to protect from harassment

MIAMI – Judge Marc Schumacher, 11th Judicial Circuit, ordered the identities of potential jurors in a high-profile murder case to be kept private to protect them from possible community pressure, reprisals or harassment.

Defense attorneys requested the move in the wake of intense publicity about Juan Carlos Chavez, 30, a farm worker accused of kidnapping, raping and murdering a nine-year-old boy in September 1995. Schumaker agreed with the defense attorneys’ request to keep private jurors’ identifying information, which includes names, addresses, phone numbers and names of spouses. He also prohibited television cameras and still photographers from showing potential jurors’ faces. (1/16/98)

Judge rules TV station must release tourists’ video

FORT LAUDERDALE – An appeals judge upheld a lower court’s ruling that a Miami television station must release to authorities unbroadcast footage the station obtained from confidential sources.

WPLG-TV received the tape from two tourists from Poland. The vacation tape showed an altercation between two Fort Lauderdale police officers and a man that they were arresting. The tourists gave the tape to the television station on the condition that they remained unidentified.

The television station resisted a subpoena for the tape, arguing that the footage would be used to identify the sources. Judge Mark Polen, 4th District Court of Appeal, agreed with the lower court’s determination that the state proved the footage was relevant and crucial to its investigation into the altercation, and that it had exhausted all alternative sources for the information. (1/14/98)

Executed search warrants can be exempt from disclosure

JACKSONVILLE – Executed search warrants can be exempt from public disclosure, according to an appeals court ruling.

The First District Court of Appeal upheld a lower court ruling that determined that executed search warrants can be exempt from public disclosure because they can constitute active criminal investigative material as defined by Florida’s Public Records Law.

In Florida Publishing Company v. State of Florida, the Florida Times-Union appealed the lower courts’ decision, arguing that rule 2.051 of the Florida Rules of Judicial Administration could make the search warrants open to public inspection. The rule states that unexecuted search warrants are confidential, and that all other matters relating to search warrants are only confidential if there is an applicable statutory exemption. The court held that Florida’s exemption for active criminal investigation information would make the executed search warrants exempt from disclosure. (1/27/98)

Lawsuit against school district administrators dismissed

WEST PALM BEACH – A federal judge dismissed a lawsuit brought against a school district’s superintendent and district attorney by an ex-administrator alleging violations of Florida’s Open Meetings Law.

Art Johnson, former principal of Boca Raton’s Spanish River High School, contended that the school district’s attorney Glen Torcivia and Superintendent Joan Kowal polled Palm Beach County School Board members to find out how they would vote about Johnson’s termination.

U.S. District Judge Kenneth L. Ryskamp of the Southern District of Florida dismissed Johnson’s case, ruling that the superintendent, district attorney and board members did not conspire against him.

Just days before Judge Ryskamp’s verdict, the Palm Beach State Attorney’s Office refused to file charges against Kowal and Torcivia. (Brechner Report, March 1998). (2/7/98)

ACCESS RECORDS

Judge orders child abuse records released

NEW PORT RICHEY – A circuit judge ordered the state Department of Children and Families to release child abuse investigative records to the St. Petersburg Times. The records are part of the investigation into the death of 20-month-old Travis Crouch, who died Jan. 17 of severe head injuries.

Judge William Webb, 13th Judicial Circuit, will protect the ongoing investigation into the child’s death by reviewing the records first to decide if anything should remain sealed. Records that will not hamper the investigation if released will be forwarded to the St. Petersburg Times.

Florida’s Public Records Law allows the release of otherwise confidential Department of Children and Families records if the court finds there is a legitimate public interest in disclosure. (2/11/98)

OBSCENITY

Library board votes to limit Internet access

JACKSONVILLE – The Jacksonville Public Library board voted to limit access to the Internet on the library computer to protect patrons from what the library deems offensive materials.

The board divided the materials into three categories of offensiveness: illegal, pornographic and lifestyle. The illegal category includes sites that pertain to illegal activity such as drug dealing, prostitution or murder. The pornographic category includes sites that pertain to heterosexual activity with one or two people and hard-core adult humor and literature. The lifestyle category includes those sites that pertain to homosexual acts, bisexual acts, orgies, swinging, sadomasochism or bestiality.

The board decided to extend the policy to all libraries in its system. The libraries will use an Internet filter system to prohibit access. (12/16/98)

Jury rules man’s T-shirt not illegally obscene

OCALA – A jury determined a 22-year-old man did not violate Florida’s obscenity law by wearing a T-shirt bearing the image of a topless nun masturbating.

Andrew Love was arrested in the parking lot of the Paddock Mall and charged with violating the obscenity law. The T-shirt promoted an English band called Cradle of Filth.

Love’s defense team argued that the shirt was protected speech because it was a political comment on religion. Assistant State Attorney Steve Rogers, who prosecuted the case, said the shirt was purely salacious, and therefore illegal.

According to Florida law, obscenity is defined as what the average person would find to appeal to a morbid, prurient or shameful interest. To be illegal, it must depict sexual material in a patently offensive way, and when taken as a whole, be devoid of any serious literary, artistic, political or scientific value. (2/19/98).

THE BACK PAGE

"Chicken soup" laws undermine the public trust

By Sandra F. Chance

Laws that make people, particularly legislators and special interest groups, feel better but accomplish very little are "chicken soup" laws. All too often these laws are unconstitutional.

Florida has more than its share of "chicken soup" laws. When our legislators pass these laws, they undermine our confidence in the legislative and democratic process.

Legislators are considering a number of "chicken soup" laws, including adding another exemption to Florida’s Public Records Law. The proposed law exempts the name, address and telephone number of animal owners contained in rabies vaccination certificates from the public. The bill would make it nearly impossible for people to tell if they’ve been bitten by a rabid dog.

The rabies certificates are on file with the county animal control departments and are covered by the Florida Public Records Law. The legislation is being pushed by the state’s Veterinary Association to protect client lists from direct marketers who sell pet care product cheaper than the local vets.

Supporters of the bill concede the exemption is motivated by economic interests. They also insist it’s necessary, in part, to protect "doctor-patient" confidentiality similar to that enjoyed by people and protect pet privacy.

Unfortunately, I’m not kidding. This is a perfect example of a "chicken soup" law. It makes a few people feel better yet undermines the openness of government and our faith in the legislative process.

Florida’s "veggie libel" law is another example. A similar law comforted the Texas cattlemen who sued Oprah Winfrey.

They must have been feeling pretty good until 12 jurors in Amarillo restored common sense to the process. The jurors recognized the First Amendment is alive and well and protects someone’s right to express an opinion and question the safety of agricultural products.

While these laws make farmers feel better, "veggie libel" laws are unconstitutional and threaten free speech. Thirteen other states protect this important special interest group with similar laws. Unfortunately, those state legislators forgot about the First Amendment somewhere along the way, too.

Florida’s "Son of Sam" bill is yet another example. "Son of Sam" laws prevent criminals from profiting from their crimes. New York passed the first one in 1977 to prevent David Berkowitz, known as the Son of Sam killer, from selling his story to the tabloids.

Florida, like 33 other states, followed suit. These laws make us feel better. They prevent heinous criminals, like Gainesville student murderer Danny Harold Rolling, from making money off his victims.

In 1991, however, the U.S. Supreme Court ruled that states may not prevent criminals and their publishers from profiting from books and movies about the criminal’s activities. Laws which discriminate based on the content of the speech are unconstitutional, according to the Court. Our legislators would be well-advised to remember that the First Amendment applies even to criminals and their publishers and redraft this law to prohibit all money making activities.

The "chicken soup" phenomenon is prevalent in Washington, D.C., too. Congress continues to pass unconstitutional laws that make people feel better.

For example, in response to the senseless murder of actress Rebecca Schaeffer, Congress passed the Drivers Privacy Protection Act in 1994. The actress was gunned down by a crazed fan. The fan hired a private investigator to find her home address from the public records.

The new federal law requires states to shroud driver’s license information in secrecy or face huge federal penalties. Ironically, private investigators retain the ability to get these records. The federal statute has recently been declared unconstitutional in several states.

More recently, Sens. Diane Feinstein and Orrin Hatch introduced the Personal Privacy Protection Act. The proposed law was a response to Princess Diana’s death. It would certainly make many celebrities feel better.

The bill makes it a federal crime to use zoom lenses, even if the photographer remains on public grounds. Trespassing, assault and stalking are against state laws. Do we need another "chicken soup" law?

Legislators must act in the public’s best interest. They must stand up to pressure from special interest groups requesting "chicken soup" laws that restrict free speech, freedom of the press or access to governmental information. The First Amendment and our state constitution demand it and so it should be.

Sandra F. Chance is the assistant director of the Brechner Center for Freedom of Information and an assistant professor of journalism at the University of Florida

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