|The Brechner Report
Volume 23, Number 12
A monthly report:
Irina Dmitrieva, Editor
Brechner Center for Freedom of Information
Jackie Thomas, Production Coordinator
Allyson Beutke, Production Assistant
Bill F. Chamberlin, Ph.D., Founding Director
Sandra F. Chance, J.D., Director
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
Table of Contents
clears school board member of violation
TGH is subject to access laws
affirms award in records suit
denies public access to records of private attorneys
orders release of child's records
Society is subject to access laws
attorney's office claims commissioners violated law
member sues development district
sues county commission over review sessions
order upheld in trial of three teenagers
of student paper sues district
passes controversial ordinance
overrules $10 million libel award
Paper can access student's records
asserts exclusive rights in King's famous speech
Access Records: Judge
clears school board member of violation
PENSACOLA – Gov. Jeb Bush reinstated Escambia School
Board member Vanette Webb to her position on the board after a new judge
reversed her conviction for violating the state Public Records Law.
Webb was suspended May 21 after Judge Pat Kinsey, 1st
Judicial Circuit, sentenced her to 30 days in jail and ordered her to pay
a $1,000 fine for knowingly withholding public records from parent Susan
Watson. (The Brechner Report, July 1999)
However, Judge William White, who took over the case,
released Webb pending appeal after she spent seven days in jail. White was
assigned to the case after Kinsey disqualified herself, saying she
concluded that Webb lied under oath.
On appeal, the court reversed Webb’s conviction saying
prosecutors failed to admit into evidence any public record she allegedly
withheld from Watson, who has been critical of Webb.
The school district was ordered to pay Webb’s legal
fees estimated at $30,000, reported the Tallahassee Democrat.(10/26/99)
Access Records: Judge:
TGH is subject to access laws
TAMPA – Judge Edward Ward, 13th Judicial Circuit,
ruled that Tampa General Hospital (TGH) is subject to the state access
laws and ordered the hospital to disclose within 30 days financial records
requested by two newspapers. He also called unconstitutional a 1998 law
that would have exempted from state access laws all records and meetings
of a governing board of a private corporation that leases a public
The Tampa Tribune and the St. Petersburg Times
sued TGH after the hospital repeatedly denied public records requests made
by the two papers. (The Brechner Report, March 1999) TGH officials
argued that in order to compete against private for-profit hospitals, TGH
had to keep its records confidential. TGH was Hillsborough County’s
public hospital until 1997, when the county officials leased it to a
private company, Florida Health Sciences Center, to improve the hospital’s
Ward ruled that Florida Health Sciences Center assumed
public duties when it leased TGH. By assuming these duties, the company
also assumed an obligation to comply with the state access laws, Ward
Ward also ruled that TGH must pay the newspapers’
legal fees. (10/23/99)
Records: Court affirms award in records suit
TALLAHASSEE – An appellate court has affirmed the
initial award of $8,030, plus interest and appellate attorney’s fees, to
a private citizen in her public records suit against Leon County.
In June, Judge Terry Lewis, 2nd Judicial Circuit, ruled
that, given the nature and volume of the materials requested by Barbara
Herskovitz, the county’s delay in producing them was reasonable. (The
Brechner Report, May 1999)
However, he ruled that Herskovitz was entitled to
recover her attorney’s fees and court costs from the county. (10/25/99)
Records: Court denies public access to records of private attorneys
TAMPA – A circuit court judge ruled that private
attorneys who represented two Hillsborough County commissioners can keep
their records private despite the fact that taxpayers paid their legal
The St. Petersburg Times asked the court to open
the records of private criminal defense attorneys hired by commissioners
Thomas Scott and Jim Norman to represent them in a federal grand jury
investigation that ended last year without charges. The federal probe
focused on whether commissioners pressured Tampa General Hospital into
awarding a medical equipment contract.
The County Commission paid $34,575 in attorneys’ fees
after voting that doing so serves a public purpose.
The Times argued that, since the public paid
their legal bills, private attorneys were performing a public service when
they represented the commissioners.
Judge Dick Greco Jr., 13th Judicial Circuit, held that
private attorneys were not acting on behalf of a government agency. He
wrote, "Although all public expenditures must be for a public
purpose, the mere payment of legal fees does not render the supporting
records subject" to the Public Records Law. (11/7/99)
Records: Court orders release of child's records
PINELLAS COUNTY – A circuit court ordered the
Department of Children and Families to release its records relating to a
deceased child to a Tampa station, WFLA-TV.
The petition to release the records was filed pursuant
to the state law which requires the Department to disclose its
confidential records pertaining to the investigation of the alleged abuse,
neglect or abandonment of a child.
However, the child’s mother objected to the request,
claiming she and her family would be emotionally harmed by the public
scrutiny that would result from the release of the records to a news
The court held that the public’s interest in
evaluating the actions of the Department and the court system outweighs
the family’s interest in privacy. (Decision on File, In re L.I.,
No. 1524276, Feb.5, 1999)
Records: Humane Society is subject to access laws
PUTNAM COUNTY – A court of appeals ruled that the
Putnam County Humane Society is subject to the Public Records Law because
it performs a governmental function of investigating acts of animal abuse
and seizing the animals, pursuant to the state statute.
The court ordered the society to make public records
that were created and maintained in connection with the exercise of its
The court did not award attorneys’ fees in the case,
stressing that the society acted on a good faith belief that it was not
subject to the state access laws. (Decision on File, Putnam County
Humane Society v. Woodward, No. 99-97, August 1999)
Meetings: State attorney's office claims commissioners violated law
BISCAYNE PARK – The Miami-Dade state attorney’s
office filed a civil complaint against the Village of Biscayne Park for
alleged Open Meetings Law violations. The commission denies the
Joe Centorino, chief of the public corruption unit,
filed a complaint against the village after the state attorney’s office
investigated the closed-door session that commissioners held on Feb. 13.
At the session, the commission discussed possible negotiations with the
Episcopal Church of the Resurrection to buy the church-owned land for a
new municipal police building. (9/21 - 10/14/99)
Meetings: Ex-board member sues development district
TAMPA – A former Tampa Palms Community Development
District’s member, Bob Doran, filed a civil complaint in a circuit court
claiming that the development district violated the state Open Meetings
Law at four meetings.
Doran claims the illegal meetings took place in 1996,
1997 and early this year. He says the board members met privately to
discuss two threatened suits by the Tampa Palms Owners’ Association.
Doran asked the court to void the decisions reached at the meetings.
This summer, the Hillsborough County State Attorney’s
Office investigated the district’s alleged violations but did not issue
any criminal charges for the lack of criminal intent on part of the board
members. (The Brechner Report, October 1999) Board members claim
the closed meetings were held to discuss potential litigation with their
Meetings: Lawyer sues county commission over review sessions
BARTOW – A Lakeland lawyer has sued the Polk County
Commission claiming the commission violates the Open Meetings Law by
failing to provide adequate notice of its weekly agenda review sessions.
The complaint filed by Phillip Kuhn on behalf of a local
advocacy group, the Citizens for Truth in County Government, alleges that
the notice of weekly review sessions is "inadequate to appraise the
individual citizen" of the subjects discussed at the meetings. Kuhn
asks the court to halt the review sessions, at which commissioners usually
discuss the agenda for the upcoming meetings. (10/27/99)
Gag order upheld in trial of three teenagers
BARTOW – Circuit Judge Robert Young, 10th Judicial
Circuit, refused to lift a gag order he entered in a trial of three Haines
City teenagers charged in a shooting spree. The charges in the case
involve a two-day shooting spree in northeast Polk in April 1998 that
resulted in two deaths and left seven people wounded.
Young ordered defense lawyers and prosecutors in the
case not to make "substantial comments" to the news media. He
said the teenagers’ rights to a fair trial are paramount to the free
The attorney representing The Tampa Tribune and The
Ledger argued that the gag order impaired the media’s ability to
gather news. (10/8/99)
Amendment: Ex-adviser of student paper sues district
BOCA RATON – A former faculty adviser of the Boca
Raton high school’s newspaper filed a lawsuit in a circuit court against
the Palm Beach County School District, claiming the district did not renew
his teaching contract because of the paper’s content.
Toby Eichas says the trouble began last year when the
school’s paper, The Predator, published a couple of controversial
columns which contained certain stereotypes and sexual overtones. After
the school’s principal asked to review each paper’s edition before
publication, Eichas resigned from his advisory position.
Eichas, who seeks reinstatement as a teacher, says he
was defending the students’ free speech rights. The principal maintains
that the faculty adviser should teach students to write according to the
community’s moral standards. (10/15/99)
Amendment: County passes controversial ordinance
DADE CITY – The Pasco County commissioners passed an
ordinance that requires adult entertainment establishments to locate only
in industrial parks. Existing businesses have 18 months to move.
Under the new ordinance, books and video stores are
considered adult businesses if adult material comprises more than 10
percent of their stock.
During the public hearing, the county attorney cautioned
commissioners that the new ordinance may implicate the First Amendment
rights of businesses to engage in sexual expression.
Under the old ordinance, adult businesses could locate
in regular commercial districts as long as they were not near schools or
Court overrules $10 million libel award
ELEVENTH CIRCUIT – A three-judge panel of the U.S.
Court of Appeals for the 11th Circuit overruled a Florida district court’s
$10 million judgment in a defamation suit brought by a financial
corporation against ABC.
In 1992, BankAtlantic Financial Corporation (BFC) and
its president, Alan Levan, sued ABC over a number of allegedly false
statements in its "20/20" broadcast. BFC
claimed that ABC had manipulated interviews and other footage to create a
false impression that Levan had deliberately set out to defraud his
investors in a real estate scheme. The jury found for the plaintiffs and
awarded $10 million in damages to BFC and Levan.
On appeal, the appellate court dismissed the defamation
suit, because the plaintiffs failed to establish by clear and convincing
evidence that ABC broadcasted its material with actual malice - knowledge
of falsity or reckless disregard for the truth. The court stressed that
ABC used a "vast number of objective sources" including
testimonies at congressional hearings, expert opinions, and the terms of
the transaction itself. (Decision on File, Levan v. Capital Cities,
Inc./ABC, No. 97-5380, Sept. 29, 1999)
Libel/Court: Paper can access student's records
SEMINOLE COUNTY – A circuit court denied a student’s
request to prevent the Seminole Herald from obtaining his student
Ken Meadows, Jr., sued the Republic Newspapers, the
publisher of the Seminole Herald, for libel, claiming that the
paper injured his reputation in the community by associating his picture
with a story about a school student who confessed to murder.
The paper requested Meadow’s student records from the
Seminole County School Board, seeking the documents relating, but not
limited, to his disciplinary activity.
The court allowed the paper to proceed with its request,
but ordered it not to publicly disclose the obtained documents and to
notify Meadows if it intends to include these documents in the court file.
(Decision on File, Meadows v. Republic Newspapers Inc., No.
99-02-CA-16-B, April 8, 1999)
Back Page: Estate asserts exclusive rights in King's famous speech
By Irina Dmitrieva
When I was studying at the Moscow State University in
Russia, we listened to Martin Luther King’s famous speech, "I Have
a Dream," to learn English. I still remember going to the lab after
classes, checking out the tape with his speech and memorizing it to recite
in class. Were I to recite it in a broader audience, however, I could be
violating copyright rights of King’s heirs.
Early November, the U.S. Court of Appeals for the 11th
Circuit ruled in Estate of Martin Luther King v. CBS, that King’s
heirs have exclusive rights to his speeches.
The controversy began in 1994, when CBS produced an
historical documentary series, "The 20th Century with Mike
Wallace." One episode was devoted to Martin Luther King and the civil
rights march in Washington on August 28, 1963. In the episode, King’s
speech was heard while video footage showed instances of discrimination
leading to the civil rights movement.
In 1998, King’s widow Coretta Scott King and their
four children sued CBS for copyright infringement.
King applied for statutory copyright in his speech one
month after the march, and his family renewed the copyright in 1991.
King’s estate has been vigilantly guarding against the
unauthorized use of King’s speeches. In 1993, the estate sued USA
Today for reprinting "I Have a Dream" to mark the 30th
anniversary of the march in Washington, D.C. The paper settled out of
court for the $1,700 license fee and legal costs. A year earlier, Harry
Hampton, producer of the acclaimed television documentary "Eyes on
the Prize" reportedly paid the estate "less than $100,000"
to settle another suit.
The Intellectual Property Management, Inc., representing
King’s estate, says licensing fees for the use of the famous speech
start at $2,000. However the estate permits free use to nonprofit,
charitable organizations and schools.
CBS argued in court that the licensing scheme is
invalid, because from its inception, King’s speech was placed in the
public domain. CBS stressed that King delivered his speech in front of
200,000 people in Washington, D.C. The organizers of the march sought
broad media coverage. Many newspapers reprinted the speech, and the
Southern Christian Leadership Conference made it available to its members
in the group’s newsletter.
However, the court of appeals concluded that, despite
its initial wide dissemination, the speech did not pass into the public
domain. The court ruled that King’s performance constituted only
"limited publication" of the speech because it was distributed
mainly to the media, and not to the general public at large.
Under common law of copyright, a limited publication
does not divest an author of his exclusive rights in the work. However,
this argument seems flawed. Didn’t the news media ultimately distribute
the speech to the general public?
CBS also argued that King’s speech was an integral
part of the historic event. It would be unthinkable to tell the story of
the march without the speech.
CBS claimed that even if the speech is copyrighted, the
First Amendment and a fair use exception in copyright law entitled the
network to use it without estate’s permission. The appellate court did
not address these claims, remanding the case to the lower court.
However, the appellate court’s decision that King’s
speech is an exclusive property of his heirs unduly shifts the balance of
copyright law. The public interest in free access to the hallmark of the
civil rights movement seems to outweigh the proprietary interests of King’s
estate. By holding otherwise, the appellate court denied general public
the right to access, read and recite "I Have a Dream" without
prior authorization from King’s estate.
So, maybe I need to warn my friends in Moscow that they
have to get in touch with King’s heirs every time they want to use King’s
famous speech. (Decision on File, Estate of Martin Luther King v. CBS,
No. 98-9079, Nov. 5, 1999)
Irina Dmitrieva is a doctoral student at the
University of Florida and editor of The Brechner Report.
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