The Brechner Report
Volume 22, Number 8
August 1998

A monthly report:
    Michele D. Bush, Editor
    Jackie Thomas, Production Coordinator
    Allyson Beutke, Production Assistant
    Jennifer Page, Production Assistant
    Bill F. Chamberlin, Ph.D., Director
    Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Athletic association subject to Open Meetings Law

LIBEL
Jury awards $250,000 in damages in student's lawsuit
Attorney sues paper's columnist

DEFAMATION
Judge: Plastic surgeon is a public figure

REPORTER'S PRIVILEGE
New shield law used: Journalists will not testify
Reporter not required to name her source

COURTS
Mayor acquitted of battery charge
Company asks for trial to be closed

ADVERTISING
Council limits new store's advertising

BROADCASTING
Radio group disregards FCC's warning

ACCESS RECORDS
Initial complains open to public
Paper sues for documents used in city official's firing

NEWS & NOTES
Brechner Center director receives award
Kogan recognized for court website

THE BACK PAGE
Student learns difficult First Amendment lesson

ACCESS MEETINGS

Athletic association subject to Open Meetings Law

TALLAHASSEE – The Florida High School Activities Association, Inc., is subject to Florida’s Public Meetings Law, according to Attorney General Bob Butterworth.

The association is a not-for-profit corporation legislatively designated to oversee athletics in public schools. Florida’s Public Meetings Law applies to all meetings of state agencies, unless specifically exempted, during which official action is taken. Therefore the association is required to open its meetings to the public, according to Butterworth in Attorney General Opinion 98-42. (7/14/98)

LIBEL

Jury awards $250,000 in damages in student's lawsuit

GAINESVILLE – An Alachua County jury ruled that a University of Florida student was libeled during a student government campaign.

Charles Grapski, a doctoral candidate, sued Florida Blue Key and two of its members over fliers posted during the 1995 campaign that falsely accused Grapski of child molestation.

The jury awarded Grapski $250,000 in damages. However, Judge John Booth, 8th Judicial Circuit, said he will not make his final ruling on the jury’s award until September. (4/5/98 - 6/6/98)

Attorney sues paper's columnist

PUNTA GORDA – A former city attorney filed a libel suit against a newspaper columnist, claiming that the columnist published false and defamatory statements about him.

David La Croix filed suit against Tom D’Andrea, a columnist for the Sun Herald. La Croix contends that D’Andrea libeled him by printing that La Croix gave sworn testimony during a deposition in which La Croix was not sworn in, and he contends that D’Andrea misattributed information given during the deposition to him.

In the complaint, La Croix said that he should not be considered a public figure in the case because he resigned from the position of city attorney two days before D’Andrea’s column ran. However, La Croix continued to work for the city while it looked for his replacement. (5/2/98)

DEFAMATION

Judge: Plastic surgeon is a public figure

PALM BEACH COUNTY – A circuit judge determined in a plastic surgeon’s defamation suit that the surgeon can be considered a public figure. Dr. Schuyler C. Metlis filed suit contending he was defamed during a WJNO radio broadcast during which the show host discussed Metlis.

Judge James Carlisle, 15th Judicial Circuit, ruled that Metlis had put himself at the forefront of public debate about his practice and the value of plastic surgery, and therefore he fits the definition of a public figure. Metlis had cooperated with The Palm Beach Post in publishing a package of articles about plastic surgery that included stories about Metlis and his patients. During the radio broadcast in question, the host made some negative statements about Metlis after seeing the articles in the newspaper. (2/24/98)

REPORTER'S PRIVILEGE

New shield law used: Journalists will not testify

TALLAHASSEE – The new Florida shield law was invoked for the first time when a federal judge ruled in June that a St. Petersburg Times reporter does not have to answer questions about an interview for a 1996 story.

U.S. District Judge Maurice Paul, for the Northern District of Florida, held that Lucy Morgan was not required to divulge information about an interview with executives with an insurance company she reported had spied on a government official. According to Morgan’s news story, executives of the Bankers Insurance Co. of St. Petersburg admitted to hiring a private investigator to find any information about a state Department of Insurance official that could cause the state insurance commissioner to fire him.

The reporter’s shield law was enacted during the 1998 legislative session. (Brechner Report, June, 1998). In his opinion, Paul wrote that the federal common law standard and the state’s new shield law would yield the same result because they are practically the same.

Morgan was also involved in one of the first cases in which the Florida Supreme Court recognized a common law reporter’s privilege. In the 1976 case of Morgan v. State, the Court overturned a lower court’s contempt citation against Morgan for refusing to reveal the identity of a confidential source. (7/4/98)

Reporter not required to name her source

MONROE COUNTY – A reporter will not have to disclose the identities of sources from whom she received information about a defendant in a criminal trial in which participants had been under a gag order.

The defendant in the criminal case, Thomas Overton, subpoenaed reporter Marika Lynch of the Miami Herald after the newspaper published Overton’s reactions to crime scene photos.

Judge Mark H. Jones, 16th Judicial Circuit, held that Lynch is not required to name her sources because doing so would constitute an invasion of the newsgathering process and Lynch’s First Amendment rights. Judge Jones also reasoned that Overton failed to show that Lynch’s testimony would have been relevant to the crimes for which he had been charged, that there was no alternative source for the testimony or that there was a compelling need for the information.

This trial took place before the Florida Legislature passed a qualified reporter’s shield law. (3/20/98)

COURTS

Mayor acquitted of battery charge

FORT MYERS – A Lee County jury acquitted Mayor Bruce Grady of hitting a reporter for the Fort Myers News-Press.

Grady admitted to pushing reporter Roger Williams away during a confrontation about a news story, but said he did so because he was provoked by Williams’ questioning. Williams had been asking Grady questions about the effects of a proposed ferry system on the manatee population. (Brechner Report, May 1998)

Grady’s attorney said that physical contact between the two had occurred, but he would not characterize it as hitting. (7/13/98)

Company asks for trial to be closed

PALM BEACH COUNTY – A company that manufactures electronic monitors for people who are on house arrest has requested that portions of a murder trial be closed to the public. The company, BI Inc., said it is trying to keep company secrets away from criminals.

The company’s monitors are at issue in the murder trial of Ralph Jamie Hayes, a 17-year-old who slipped out of his monitor. He is suspected of killing his girlfriend while he was unmonitored.

The monitors are bracelet-like tracking devices that fit around a criminal’s ankle. BI Inc. would like to seal courtroom discussion of how Hayes escaped his monitor so criminals don’t use the information to escape.

Last year, BI Inc. had asked Judge Harold Cohen, 15th Judicial Circuit, to seal the records and close the hearings when discussion turned to Hayes’ escape from the monitor. Cohen denied the request, so BI Inc. has asked a special arbitrator to hear the motion. (7/14/98)

ADVERTISING

Council limits new store's advertising

PALM BEACH – The town of Palm Beach voted to allow a developer to build a Neiman Marcus department store on Worth Avenue, but with a caveat: the store must restrict its advertising.

One of the conditions the Palm Beach Town Council placed on the development of the store is that advertising must be limited to publications that serve only Palm Beach. After the store’s first year of business, the council will reconsider whether to let the store expand its advertising.

The council intended to limit the number of nonresidents shopping at the store. (6/10/98)

BROADCASTING

Radio group disregards FCC's warning

GAINESVILLE – An underground radio station plans to continue to broadcast despite warnings of sanctions from the Federal Communications Commission.

The Free Radio Collective runs a 40-watt station that broadcasts locally produced music, news and political programming three nights a week.

The FCC ordered the collective to stop broadcasting or face possible seizure of their equipment, a $11,000 fine and imprisonment. The members of the collective said they will exercise their First Amendment rights and continue to broadcast. (6/23/98)

ACCESS RECORDS

Initial complains open to public

TALLAHASSEE – Initial complaints of wrongdoing from whistleblowers are public records, but the complainant’s identity remains confidential, according to Florida Attorney General Bob Butterworth.

The initial complaint of wrongdoing is open to the public because it takes place before an official investigation is commenced, Butterworth said in AGO 98-37. Butterworth said that information collected during an investigation is not open to the public. The whistleblower’s identity remains confidential while the investigation into the complaint remains active. (7/5/98)

Paper sues for documents used in city official's firing

ST PETERSBURG – The St. Petersburg Times filed suit against the city of Pinellas Park because it wants access to documents relating to the firing of the assistant city manager.

The newspaper is seeking access to a document an employee created at home that the city manager later used as evidence when he disciplined the assistant city manager. The Times is also trying to get access to a memo the city manager put in the assistant city manager’s personnel file. (6/24/98)

NEWS & NOTES

Brechner Center director receives award

MINNEAPOLIS, MN – Bill Chamberlin, director of the Brechner Center for Freedom of Information, was awarded a 1998 Achievement Award from the National Coalition for Freedom of Information. The award, given for Chamberlin’s role in the development of a 50-state access website, was presented at the organization’s annual meeting in Minneapolis in June.

The website can be accessed at http://www.reporters.net/nfoic/, the National Freedom of Information Coalition’s website. (6/22/98)

Kogan recognized for court website

DAYTONA BEACH – Chief Justice Gerald Kogan, of the Florida Supreme Court, received the 1988 Pete Weitzel / Friend of the First Amendment Award, which is sponsored by the First Amendment Foundation.

Kogan received the award for his program that made court information available on the Internet. He received the award during the annual June convention of the Florida Press Association and Florida Society of Newspaper Editors. (6/12/98)

THE BACK PAGE

Student learns difficult First Amendment lesson
By Lonnie Groot

If First Amendment freedoms are to continue to be honored by our children, it is incumbent upon adults to instill the values inherent in free speech at every opportunity. Unfortunately, some recent events in my county indicate that some adults in authority are not inclined to encourage our young people to value the right to express oneself.

The Orlando Sentinel reported that teachers told a sixth-grade girl, C.C. Engilis, the recently elected student body president at Deltona Middle School, to write a retraction to a letter she wrote to the Volusia County School Board. Engilis, 11, had written a letter to the school board favoring a return to interschool athletic competition at the middle school level. By writing the letter, C.C. was keeping her campaign promise to try to get intramural sports at her school.

After she sent the letter to the school board members, C.C. said, her teachers told her to write another letter to them explaining that she didn’t have the principal’s permission to write the first letter. They also asked her to explain to the board members that she was expressing her personal opinion, not the opinion of the entire school.

C.C.’s mother pointed out what seems all too obvious – that C.C.’s teachers should have encouraged her instead of scolding her. Worse yet, when C.C. later attempted to discuss the issue with other members of the Student Government Association, her teachers told her not to broach the subject. C.C.’s father was livid and said, "If the letter was the wrong way to go, then she should have been able to discuss the issue at the meeting."

At least one school board member had something positive to say about the matter. "I really don’t think we do a good enough job in public education of encouraging kids to express themselves," Chairwoman Judy Conte said. Ms. Conte’s recognition is a tremendous understatement, particularly in view of the other actions of school officials in her county. For example, school principals are allowed to ban hair ornaments because they may be used to convey a message relating to gang identity. Principals are allowed to screen the messages and publications of school clubs and they are allowed to ban the wearing a graduation chords signifying membership in clubs or other honors.

If we are to pass on our time-honored value of free speech and free expression, we must ensure that the school officials in charge of teaching our young citizens show a full and complete respect for those rights – even when bureaucratic lines are breached or a little bit of control over campus is loosened. In any event, it must seem peculiar to a young person that under the protection of our Constitution, they can obtain virtually any type of message over the Internet, but they can’t write to their school officials, wear a hair ornament or post a bulletin without obtaining clearance from school officials.

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