The Brechner Report
Volume 19, Number 11
November 1995

A monthly report of Florida mass media law published by The Brechner Center for Freedom of Information in College of Journalism and Communications at the University of Florida. It is published 12 times a year under the auspices of the University of Florida Foundation and is a joint effort of The Brechner Center for Freedom of Information, the University of Florida College of Journalism & Communications, the Florida Press Association, the Florida Association of Broadcasters, the Florida Society of Newspaper Editors and the Joseph L. Brechner Endowment. The Brechner Report would like to thank Mary A. Giery Smith for her contributions.

• Susan D. Ross, Editor
• Kelly Barber, Production Coordinator
• Michelle Quillen, Production Asst.
• Sandra F. Chance, J.D., Asst. Director
• Bill F. Chamberlin, Ph.D., Director

Table of Contents

ACCESS MEETINGS
Sunshine violation renders contracts invalid, court says
County moves board out of the sunshine
Sunshine charges still pending against former Mascotte mayor

ACCESS RECORDS
Appeals court overturns opening of grand jury records
Judge opens Haitian immigration records
Brevard County Sheriff legally withheld record
Town need not pay for records violation

ADVERTISING
Fishers sue TV stations over net-ban ads

CENSORSHIP
Destin manager drops gags policy

CIRCULATION
Supreme Court leaves newsracks intact
Newspaper vendors exempt from Jax fees

COURTS
Judge lifts media gag
Judge prohibits reporter testimony
Attorneys, not media, get access to records

THE BACK PAGE
Don't blame the messenger, address the ills it displays

Sunshine violation renders contracts invalid, court says

WEST PALM BEACH -- The 4th District Court of Appeal recently ruled two separate contracts invalid because of Sunshine Law violations by the two agencies involved in drafting the contracts.

The appeals court upheld a lower court ruling that voided a contract awarded by the Port Everglades Authority in Florida and overturned a judgement requiring Broward County to fulfill a land-swap contract between the county and Nathan and Maria Conner.

In the Port Everglades case, the port authority's selection and negotiation committee had asked bidders on a port authority project to leave the meeting room voluntarily while their competitors presented proposals. In overturning the contract, the appeals court rejected the port authority's claim that the "innocent, technical" violation of the Sunshine Law did not prejudice the contract award. The court held that once a violation occurs, "prejudice is presumed." (Sept. 1995)

Similarly, the appeals court ruled in July that a contract drawn up between attorneys for Broward County and the Conners was invalid because it had not been acted upon by an official county body at a public meeting.(7/19/95)

County moves board out of the sunshine

FERNANDINA BEACH -- The Nassau County Commission recently relinquished control of a county economic development committee so the committee could meet outside the Sunshine Law.

By unanimous vote, the commission removed its direction and control of the committee but agreed to continue to provide $50,000 a year for the next two years to the economic development committee. The committee also raises private funds to support its operation.

The county commission move is designed to establish the economic development board as an independent, private business exempt from the Sunshine Law, which requires governmental bodies to conduct business in public.

The commission said the obligation to operate in public hampered business negotiations of the economic development committee.

County Attorney Mike Mullin cited an opinion of the state Attorney General's Office which said that a board could retain county funding and membership of one county commissioner yet be exempt from the Sunshine Law.(9.27/95)

Sunshine charges still pending against former Mascotte mayor

TAVARES -- Former Mascotte Mayor Odis "Josh" Thomas was recently acquitted of charges of bribery, theft and assault, but charges that he violated the Sunshine Law are pending.

5th Judicial Circuit Judge Don F. Briggs earlier agreed to separate the misdemeanor Sunshine Law charges from charges that the 60-year-old former mayor had stolen topsoil, received illegal compensation from an operator at a carnival licensed by the town and had assaulted a local police officer.

Although the jury acquitted Thomas of the bribery, theft and assault charges, a date remains to be set for the separate trial on the Sunshine Law allegations.

Defense attorneys said they would ask the court to dismiss all of the pending Sunshine charges. Defense attorneys argue that the Sunshine allegations stem only from casual encounters between Thomas and city council members. (9/7/95-9/26/95)

Appeals court overturns opening of grand jury records

WEST PALM BEACH-- The 4th District Court of Appeal recently overturned a lower court ruling that would have made public the grand jury transcripts related to a first-degree murder trial.

The appeals court held that the circuit court had mistakenly applied the wrong section of Florida's Public Records Law. 15th Judicial Circuit Judge James Carlisle earlier had ruled that the secrecy of grand jury records violated a state constitutional mandate to disclose public records because lawmakers had failed to explain the need for their secrecy.

The decision involved grand jury testimony in the first-degree murder trial of Ronald Knight. Knight was charged in the May 8 death of Brendan Meehan. The prosecution is seeking the death penalty in the case.

Assistant State Attorney General Anne Carrion appealed the lower court ruling on the grounds that release of grand jury records potentially would expose witnesses to outside influence and hamper operation of the judicial system. (9/1/95)

Judge opens Haitian immigration records

MIAMI -- A federal judge for the Southern District of Florida told the Executive Office for Immigration Review to create a program, if needed, to comply with a request for computerized public records, according to a report in Quill Magazine.

The Justice Department's immigration review office initially denied a request for the release of the records of decisions on Haitian nationals by Immigration Court Judge Philip Montante. The agency said its computer system could not search for decisions by individual judges, and it had no obligation to create a search program.

A U.S. magistrate disagreed and ordered the agency to comply with the request either by conducting a manual search of the records or by creating a new computer search program. The judge said the request did not require the creation of any new records. (Sept. 1995)

Brevard County Sheriff legally withheld record

ALACHUA COUNTY -- Alachua Assistant State Attorney William Cervone determined that Brevard County sheriff's staff legally withheld a document related to an active police investigation but illegally denied the existence of a memo linking a sheriff's deputy and a known prostitute.

State Attorney Norm Wolfinger appointed Cervone to conduct an independent investigation into the actions of sheriff's staff after Florida Today claimed the staff violated the Public Records Law.

Cervone confirmed that Sheriff's Cmdr. Dan Wilmer in May told a Florida Today reporter that a memo related to the sheriff's deputy and the prostitute did not exist. Cervone's investigation also determined that the memo did exist, but the reporter's request for access to the memo occurred while the investigation was pending. The record was, therefore, legally exempt from disclosure, the investigation determined. Cervone said the department should have given a basis for nondisclosure rather than deny the memo's existence. (9/27/95)

Town need not pay fees for records violation

EATONVILLE -- 9th Judicial Circuit Court Judge George Sprinkel recently absolved the town of Eatonville from its obligation to pay $65,000 in lawyer's fees for a public records lawsuit because the town is small and has limited financial resources.

The decision came in response to a request for payment of attorney's fees from West Palm Beach paralegal Michael Barfield. Barfield won a lawsuit filed in July 1994 to obtain Eatonville town records related to a proposal to open a topless club in town. Barfield's attorney says the town has not yet released all the records related to the business proposal. Barfield says he plans to appeal the circuit court ruling.

The Eatonville town attorney had argued that the town was not obligated to pay the fees because it had not intentionally violated the Public Records Law. The town argued that the violation occurred in part because of intentional delays by the town clerk, who subsequently was fired. (9/28/95)

Fishers sue TV stations over net-ban ads

TALLAHASSEE -- At least two of 16 television stations being sued for allegedly running misleading advertisements in support of the state ban on commercial net fishing adopted by voters last year asked that the suit be dismissed.

Channels 2 and 9 of Orlando recently asked 9th Judicial Circuit Judge George A. Sprinkel IV to dismiss the suits on a number of grounds, including their status as pure political speech protected by the First Amendment. The motion to dismiss also argued that the advertisements are opinion and not false or defamatory statements of fact, and they do not libel the fishermen individually or as a class.

The ads ran before election day 1994, when voters overwhelmingly supported a constitutional amendment banning commercial net fishing in most Florida waters.

The Organized Fishermen of Florida filed suit in August against stations in Orlando, Tampa, Jacksonville, Miami and Fort Myers for commercials they claim inaccurately portray a fish and sea turtle being harmed aboard what appears to be a commercial Florida fishing boat. The suit claims the videotapes actually were taken aboard a University of Georgia research vessel. (8/17/95-8/18/95)

Destin manager drops gags policy

DESTIN -- A week after instituting a policy limiting media access to city employees, City Manager Philip Cook repealed the gag.

The policy had prohibited most city employees from talking with reporters and had required them to report any contact with the media to Cook. Heads of three city departments had been permitted to report the content of their meetings to Cook.

Cook implemented the policy Aug. 25 in response to what he called "inflammatory" and "inaccurate" reporting, according to the Northwest Florida Daily News. Cook repealed the policy because he said it inaccurately sent the message that the city was trying to conceal information from the public.(9/1/95-9/6/95)

Supreme Court leaves newsrack rules intact

WASHINGTON -- The Supreme Court recently let stand an appeals court ruling permitting the city of Coral Gables to impose strict regulation on sidewalk newspaper vending machines as a reasonable means to advance the city's aesthetic goals.

The High Court, without comment, rejected a free-speech challenge to the uniformity-of-appearance rules that require newsracks to be brown and tan and contain lettering no larger than 1.75 inches high.

The case originated in 1991, when the free, Spanish-language newspaper Exito! refused to conform to the city's regulations. Exito! publisher, Gold Coast Publications, said the newspaper's distinctive purple racks and lime green, bright orange or hot pink logo assured the newspaper's visibility. The city confiscated several of the racks, and Gold Coast sued in federal court arguing that the rules violated the newspaper's First Amendment rights. (10/17/95)

Newspaper vendors exempt from Jax fees

JACKSONVILLE -- The City Council recently adopted an ordinance that exempts newspaper peddlers from city-mandated fees imposed on sidewalk peddlers and vendors.

The change exempts from the fee all materials protected by the First Amendment, which city councilors say includes newspapers, magazines, periodicals and pamphlets. The city's regulations on vending were changed about a year ago and impose fees on each peddler ranging from $10 per day to $250 for a year-long permit.

The Florida Times-Union drafted and championed adoption of the amendment to exempt publications from the fee on the basis that the fee constituted an illegal prior restraint on the free operation of the press. The city denied that the fee was unconstitutional when imposed on newspapers but removed it in response to pressure from newspaper publishers. (8/25/95)

Judge lifts media gag

STUART -- 19th Judicial Circuit Judge Dwight Geiger recently ruled that he had improperly ordered the press not to publish the names, addresses or photographs of jurors in a first-degree murder trial. The judge issued a new order prohibiting jurors in the courtroom.

Judge Geiger had entered the earlier ruling in the trial of Victor Brancaccio after two jurors expressed concern that they might be threatened if they were identified by the media. The Palm Beach Post, The Stuart News and the Ft. Pierce Tribune challenged the order as unconstitutional on the grounds that the information was readily available to anyone in the courtroom.

Judge Geiger lifted the gag on media and said that "the evidence indicates that there is no serious threat to juror safety at this time."(9/29/95-9/30/95)

Attorneys, not media, get access to records

WEST PALM BEACH -- 15th Judicial Circuit Judge James Carlisle ruled that a defendant's right to confront his accuser outweighed the confidentiality privilege of a juvenile patient and her psychotherapist.

The ruling, in the trial of Dumas Parson for his wife's murder, releases to attorneys, but not the media, the psychotherapy records of a 4-year-old girl who witnessed the July 9, 1994, shooting. (9/1/95)

Judge prohibits reporter testimony

BOCA RATON -- The 4th District Court of Appeal recently refused to reconsider its August ruling that prohibits a former National Examiner reporter from testifying in her lawsuit against the tabloid.

In the suit, reporter Lori Ronan alleges that in 1992 attorneys for the National Examiner announced a company policy requiring reporters to tape two sources for every story, even without source consent. State law prohibits taping without consent. Ronan charges that she was fired when she refused to follow the policy.

Attorneys for Globe Communications, owner of the Examiner, argued that the alleged policy conversations fall under attorney-client privilege and therefore may not be entered into the record of the trial. Judge Richard Wennet of the 15th Judicial Circuit initially granted Ronan's motion that the testimony be allowed.

The 4th DCA overturned that decision, and Wennet interpreted the appeals court decision to prohibit Ronan from testifying about any aspects of the conversations with the attorneys. The 4th DCA recently refused to clarify its earlier ruling in the case. (9/28/95)

Don't blame the messenger, address the ills it displays

by Sandy L. Bohrer

It has become fashionable to blame the press for society's ills. The press is too negative (Certainly you remember the vice president/felon who referred to the "nattering nabobs of negativism!) and too sensationalistic. I keep hearing and reading that the Simpson case crystallized "perceptions" that the press, by televising trials, encourages disrespect for the system and distorts the process as judges, lawyers, witnesses and even jurors play to the camera. Studies show this is simply false.

It is no more true that the camera in the Simpson courtroom was responsible for how the trial was conducted, reported to the public or presented in the media than it is true to say the Simpson trial is the trial of the century. The Simpson case was simply the latest of at least twelve cases called "the trial of the century." Among other notorious trials of the century devoid of live television coverage were the Charles Manson trial, which took nine months in a California courtroom accompanied by sensationalistic reporting; the Scopes "Monkey Trial" case; and the Chicago Seven trial during which the antics of the judge, defendants and their attorneys could not be blamed on television.

Cameras in the courtroom are part of the solution, not the problem. The Simpson trial showed at least one example of what happens when a judge fails to control the courtroom and the lawyers. The camera provided examples of lawyers lacking ethics and manners in the courtroom during the day and criticizing the judge or the other side on CNN during the evening. The camera demonstrated how the process just generally can get out of hand.

To the extent this was, as some say, an aberration, there are still lessons to be learned. To the extent it was, as others say, representative of fundamental problems with our justice system -- or at least the California justice system -- there are other lessons to be learned. If it teaches us we need to do more to protect everyone's rights and police our police, or we need to educate our children about hatred, justice ad fairness before they become police, lawyers, jurors and judges, this, too, is a benefit of seeing the system operate.

I have heard people say the closing arguments at the Simpson trial will be used for years in law schools. Perhaps, but more importantly we can use the Simpson trial experience more generally to educate ourselves about the broader issues it raised, from the legal issues for law students to the cultural and societal issues for all of us.

And that singe camera made it possible. There simply is no way newspaper articles could have conveyed what that one camera did.

The real problem with the Simpson trial was not that camera, providing unedited and uncensored total coverage. The problem was what that camera revealed about America -- the obsession with celebrity, lawyers, sensationalism, blood and gore, and the deep divisions between white and black. The camera simply delivered the message.

It that message shows the government, legislators, judges, lawyers or the judicial system in a bad light, isn't that why we let the sunshine in? The answer to flaws in the system is not to hide the flaws but to reveal and remedy them. The simple empirical truth, proved repeatedly during the Simpson trial and during hundreds of trials telecast by Court TV is: Cameras do not harm the process. Cameras provide significant educational, cultural and political benefits.

With camera coverage, the public is able to judge for itself, by observing the lawyers, the witnesses and the evidence, whether justice is being done. And that's the way it should be.

***Sandy L. Bohrer is a partner in the Miami office of Holland & Knight.

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