The Brechner Report
Volume  23, Number 10
    October 1999

A monthly report:

Irina Dmitrieva, Editor
Jackie Thomas, Production Coordinator
Allyson Beutke, Production Assistant
Bill F. Chamberlin, Ph.D., Founding Director
Sandra F. Chance, J.D., Director

Table of Contents

ACCESS - MEETINGS

Tampa Palms board cleared of violations

Ethics Commission will not investigate claims of violations

Suit claims sheriff’s department violates law

County postpones meeting after warning

Judge dismisses Open Meetings suit

ACCESS - RECORDS

Man jailed for stalking his neighbor  

Butterworth: school public records may not be free

Resident sues state over pay phone line

ACCESS - MEETINGS AND RECORDS

Court dismisses a complaint against school board district   

COURTS

Court upholds partial closure of courtroom in a sexual abuse trial

FIRST AMENDMENT

Nude beachgoers denied free speech rights

Man files complaint over limited public input

LIBEL

UF society settles suit, does not admit fault

REPORTER'S PRIVILEGE

Court orders newspaper to produce records in a libel trial

THE BACK PAGE

A First Amendment survey brings bad news for press

Court orders newspaper to produce records in a libel trial

VOLUSIA COUNTY – The 5th Circuit Court of Appeal ordered the Daytona Beach  News-Journal to produce documents in a libel trial, despite the newspaper’s attempt to invoke the qualified reporter’s privilege not to disclose its sources.

The News-Journal interviewed Kevin “Kit” Carson when he was running for county judge. Upon publication of the story, Carson sued the News-Journal for libel and sought to compel production of the documents he allegedly gave reporters during the interview. The documents include an unemployment compensation form and a job evaluation form.

The News-Journal asserted a statutory privilege not to disclose the information obtained while actively gathering news.

The court ruled the News-Journal waived its privilege by filing a copy of Carson’s unemployment compensation form in public court files. The court concluded that the second document was protected and “within the statutory privilege.” However, the court ruled, the privilege did not apply in this case because the document could become important evidence in the libel proceedings.

According to the court, the document could “show that the News-Journal knew ‘true facts’ when it printed the allegedly libelous news story, or had a reasonable basis not to print the story without further inquiry.” (Decision on File, News-Journal v. Carson, Case No. 99-1459, August 20, 1999)

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Man jailed for stalking his neighbor   

STUART – A circuit court in Martin County sentenced a man to three years in prison for using public records to harass his former neighbor.

In June, a jury convicted Paul Curry of stalking Jacqueline DiCarlo by performing multiple public document searches and filing complaints on her with various state agencies. (Brechner Report, August 1999)

Curry accused DiCarlo of parking violations, falsifying information on her driver’s license, having dirt on her sidewalk and doing business as a psychic without an occupational license. Curry based his complaints in part on information he gathered from public records, ranging from DiCarlo’s employment records to her water bill.

Judge Larry Schack, 19th Judicial Circuit, said the Public Records Law was not intended for a person “to place another individual’s life under a microscope.” Curry has appealed the decision. (7/30/99)

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Tampa Palms board cleared of violations

TAMPA PALMS – The Hillsborough County State Attorney’s office will not file criminal charges against the Tampa Palms Community Development District for violating the Open Meetings Law. The state attorney’s office reached this decision after finding that the board closed several meetings without criminal intent.

In March, local resident Bob Doran claimed that the development district board violated the law at its January and February meetings. Doran alleged that board members met privately to discuss two threatened suits by the Tampa Palms Owners’ Association and two residents.

The board avoided litigation in both cases by agreeing to fix the maintenance problems each group complained about. Doran claimed that the board members did not give notice of the closed sessions and discussed things other than pending suits. (8/28/99)

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UF society settles suit, does not admit fault

GAINESVILLE – Florida Blue Key agreed to pay an undisclosed settlement to a former University of Florida student who sued the UF honorary society for damaging her reputation in its 1998 Gator Growl program.

Jen Cardon filed a suit last fall in the Alachua County circuit court after reading the phrase, “I’ve never had sex with Jen Cardon,” on a page of jokes in the printed program for the football pep rally. (Brechner Report, February 1999) The suit claimed the joke implied that Cardon was a “sexually promiscuous woman.”

The society’s current president, Ashley Moody, said Blue Key settled the suit so members could start the new school year with a clean slate, not because the organization was at fault. (9/1/99)

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Butterworth: school public records may not be free

TALLAHASSEE – School districts are under no statutory obligation to provide copies of public records free of charge to members of a school advisory council, according to Attorney General Robert Butterworth. However, in his recent advisory legal opinion, he stressed that a school district may formulate a policy for the distribution of public records.

Florida Department of Education sought Butterworth’s opinion after a member of a school advisory council in Miami-Dade County objected when the school district charged for copying and redacting the requested public records.

Butterworth stated the only statutorily required function performed by advisory councils is to assist the school boards in the preparation and evaluation of the school improvement plan. Therefore, if an advisory council needs certain school records in order to carry out this function, such records should be provided to the council in the same manner that records related to agenda items are provided to school board members. In Miami-Dade County, it is the school district’s policy that such records are provided at no cost.

Butterworth also stressed that nothing in the school code authorizes the release of student personal information requested by individual members of the school advisory council. (8/5/99)

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Resident sues state over pay phone line

TALLAHASSEE – A Florida resident filed a suit in a Tallahassee circuit court claiming that the state violates the Public Records Law by using a pay phone line for lottery players who call to find out if they’ve hit the jackpot. Ralph DeLuise of Clearwater wants to abolish the pay line and set up fund to reimburse millions of callers.

The state used to provide free lottery results through a toll-free number. Four years ago a new law set up a 900 line, which raised an estimated $10 million by charging callers 77 cents per minute. Forty percent goes to a fund that operates the line, the rest to a state education fund.

Under state law, public agencies may charge only the actual cost of duplication for production of public records. (7/28/99)

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Ethics Commission will not investigate claims of violations

SANFORD – The state Ethics Commission decided that it does not have jurisdiction to investigate complaints accusing Seminole County commissioners of breaking the Open Meetings Law.  The commission stated that prosecution of intentional violations of the state law lies with the state attorney’s office.

The complaint, filed by six local residents, stems from comments made by Commissioners Daryl McLain, Dick Van Der Weide and commission Chairman Carlton Henley before a Jan. 27 County Commission meeting. The comments were caught on videotape before the meeting began.

Residents say the comments suggest that commissioners discussed how they planned to vote on an important development issue involving Wekiva River prior to the public meeting. In addition, they claim that McLain used an obscenity in referring to people at the meeting.

The residents are members of a landowners group that objected to new developments in the Wekiva River Protection Zone. (8/12 - 17/99)

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Suit claims sheriff’s department violates law

LEE COUNTY – Six current and former Lee County sheriff deputies filed a class action suit in a circuit court claiming that the sheriff’s department violates the Open Meetings Law.

The suit alleges that the department’s Civil Service Board and a committee of officers who vote on disciplinary recommendations violated the state law by failing to open their meetings to the public. The suit asks the court to order the two boards to open their meetings to the public and reinstate all the deputies who have been fired since 1995. (8/7/99)

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County postpones meeting after warning

NAPLES – Collier County commissioners postponed an emergency meeting after a state attorney’s office advised them that it would violate the Open Meetings Law by failing to provide a 24-hour advance public notice.

The meeting was called to make appointments to an environmental advisory council.

According to the Attorney General’s office, special emergency meetings should be announced at least 24 hours in advance in order to comply with the law’s reasonable notice requirement. (8/7/99)

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Court dismisses a complaint against school board district   

INDIAN RIVER COUNTY – A circuit court dismissed a Vero Beach resident’s allegations that the Indian River County School Board District violated the Open Meetings and Public Records laws. Judge Charles Smith, 19th Judicial Circuit, said Brian Heady, a frequent critic of the board, did not adequately state the judicial remedy he was seeking.

In July, Heady filed a civil complaint against the board, saying the school district denied his request for a copy of a five-year educational plant survey. He also claimed that the board violated the Open Meetings Law last November when it signed an addendum extending the superintendent’s contract behind closed doors. (Brechner Report, September 1999)

The board asked a state mediator to decide whether it violated the law by signing the addendum.

However, Pat Gleason, general counsel in the office of the Attorney General, denied the request saying the mediation program is designed for on-going issues, not for past actions. (8/28/99)

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Judge dismisses Open Meetings suit

ORMOND BEACH – Judge Robert Rouse, 7th Judicial Circuit, signed an order dismissing an Open Meetings lawsuit against three city commissioners.

A year and a half ago, residents Jack Hunter and Melvin Stone sued three city commissioners after they voted to give municipal firefighters a hefty raise that averaged 18.9 percent per employee. The suit claimed that commissioners violated the state law by discussing the firefighters’ raises in secret.

No trial was held during a 19-month-old suit and no depositions were taken. All parties to the suit agreed not to pursue further litigation. (8/18/99)

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Court upholds partial closure of courtroom in a sexual abuse trial

BREVARD COUNTY – The 5th Circuit Court of Appeal upheld the trial court’ s partial closure of the courtroom during the testimony of a 14-year-old witness in a sexual abuse trial.

The jury found Floyd Clements guilty of sexual battery and lewd acts on a child under 12. Clements appealed the judgment on procedural grounds, saying the trial court erred by ordering closure of the courtroom during the child victim’s testimony without a prior hearing. Clements’ counsel asked the court to hold a hearing to determine the necessity of exclusion and consider alternative methods so as to preserve Clements' right to a public trial.

The court upheld the trial court’s decision to clear the courtroom of the “idly curious” during the child’s testimony. The court cited the state statute, which requires a partial closure of a courtroom during a limited time when a child under 16 testifies about a sex offense. The court ruled that Clements’ constitutional right to a public trial was preserved, because the press, “as the eyes and ears of the public,” was allowed to remain during the testimony. (Decision on File, Clements v. State, Case No. 98-963, July 30, 1999)

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Nude beachgoers denied free speech rights

CLEARWATER – Judge Patrick Caddell, 6th Judicial Circuit, ruled that two nude beachgoers couldn’t escape charges of disorderly conduct by claiming their free speech rights. 

John Palm and Todd Dominik were among 15 members of Tampa Area Naturists who gathered on Fort DeSoto beach last July for what they said was a protest against the lack of nude beaches in Pinellas County. The protesters put up signs "Florida Needs Nude Beaches" and hired a tow plane to fly with a banner with the same message. (7/31/99)

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Man files complaint over limited public input

TAMPA – Former East County Water Control District Supervisor Frank Lohlein filed a complaint with the state attorney’s office claiming a violation of his First Amendment rights, reported the Lehigh Acres’ News Star.

Lohlein claims the district’s policy to limit public comments to two minutes violates his constitutional right to free speech. He wrote that the policy to control the public input should be “brought to court to settle the question of what constitutes a dictatorship.” (8/10/99)

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THE BACK PAGE:

A First Amendment survey brings bad news for press

By Paul McMasters

Most Americans celebrate the freedoms guaranteed by the First Amendment. Yet they are not entirely comfortable with those freedoms. That clear sense of unease permeates the second State of the First Amendment survey, sponsored by the First Amendment Center at Vanderbilt University.

Indeed, some of the findings in this survey arrive as a jolt to the constitutional conscience: More than half of the respondents believe the press has too much freedom. Half believe the Constitution should be amended to override the First Amendment's protection of flag burning as political protest. Nearly one-third believes the First Amendment goes too far in the rights it guarantees.

Further, when responses in this survey are compared to the first State of the First Amendment survey -- conducted in 1997 -- a series of negative shifts in attitudes toward First Amendment freedoms becomes apparent.

The news in this survey was especially bad for the press. When respondents were asked whether they think the press has too much freedom, 53% of them said yes. That represents an increase of 15 percentage points from the 38% who said yes to the same question in 1997.

In disturbing numbers, Americans said newspapers should not be allowed to publish freely without government approval, that they should not be allowed to endorse or criticize political candidates, that journalists should not be able to use hidden cameras for newsgathering and that the news media should not be able to publish government secrets.

Generally, survey respondents were more supportive of freedom of speech -- at least in principle -- than of press freedom. For instance, the percentage of those who believe we have too little freedom of speech went from 18% in the 1997 survey to 26% in 1999. Interestingly, those who agree that Internet speech should enjoy the same protection as printed speech went up from 56% to 64%.

Despite their high regard for the idea of free speech, many Americans have serious concerns about certain kinds of speech. For example, 57% said the public display of art that some might find offensive should not be allowed. An even larger majority, 78%, would not allow the public use of words that racial groups might find offensive.

Not surprisingly, this survey confirms the 1997 findings that large numbers of Americans support restrictions on speech about sex. An interesting finding is that Americans feel the more accessible the medium is, the less permissible sexually explicit content should be. For example, when asked whether different media should be allowed to convey sexually explicit material, survey respondents were much more willing to allow sexually explicit material on rental videotapes than on the Internet.

The results of questions about the press and privacy are intriguing. Sixty percent of those polled said journalists should not be allowed to investigate the private lives of public figures. But when asked whether the press should be allowed to publish factual information about a public official's private life that may be embarrassing or sensitive, 48% said it should. However, the public is more protective of private citizens. Only 37% agreed that the press should be allowed to publish embarrassing or sensitive information about them.

This apparent willingness by some Americans to consider restrictions on speech offers a glimpse of the American psyche's majoritarian/authoritarian streak, i.e. the tendency of some to believe that speech not approved of by the majority does not qualify for full First Amendment protection.

Surveys such as this one are primarily valuable as reminders of the First Amendment's importance as a check on our natural impulse to censor and silence. Were offensive speech and controversial press practices not protected, we might have a society that is calmer, safer, even more civil. But without the First Amendment, our society-and our lives-would be considerably less free.

Paul McMasters is the First Amendment Ombudsman with the Freedom Forum foundation. His complete analysis of the survey is available at http://www.freedomforum.org.

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