The Brechner Report
Volume 23, Number 12
    December 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

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ACCESS - RECORDS

Judge clears school board member of violation

Judge: TGH is subject to access laws

Court affirms award in records suit

Court denies public access to records of private attorneys

Court orders release of child's records

 Humane Society is subject to access laws

ACCESS - MEETINGS

State attorney's office claims commissioners violated law

Ex-board member sues development district

Lawyer sues county commission over review sessions

COURTS

Gag order upheld in trial of three teenagers

FIRST AMENDMENT

Ex-adviser of student paper sues district

County passes controversial ordinance

LIBEL

Court overrules $10 million libel award

Court: Paper can access student's records

THE BACK PAGE

Estate 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)

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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 hospital.

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 financial standing.

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 held.

Ward also ruled that TGH must pay the newspapers’ legal fees. (10/23/99)

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Access 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)

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Access 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 fees.

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)

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Access 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 organization.

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)

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Access 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 investigative functions.

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)

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Access 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 accusations.

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)

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Access 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 attorneys. (10/14/99)

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Access 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)

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Courts: 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 speech interests.

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)

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First 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)

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First 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 churches. (10/21/99)

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Libel: 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)

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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 records.

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)

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The 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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