The Brechner Report
Volume 21, Number 2
February 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Mary Gallant, Production Coordinator
• Bobbie Stewart, Production Assistant
• Kelly Kroll, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS RECORDS
Court says sealing records doesn't require test
DCA reinstates records suit to settle fee issue

REPORTER'S PRIVILEGE
DCA orders new trial after article used as evidence
Zile conviction doesn't end Kidwell case

LIBEL
Banker wins $10 million judgment in suit against ABC
Federal judge dismisses defamation suit

ETHICS
Panel says lawyer could have taught

FIRST AMENDMENT
Ocoee settles suit over ordinance
Board keeps book in classes, library

NEWS NOTES
Annual media-law conference set
Brechner Center awarded grant
Brechner Report gets new editor

PRIOR RESTRAINT
Judge refuses to stop publication

THE BACK PAGE
Candidates should not be able to hide their pasts

Court says sealing records doesn't require test

TALLAHASSEE - Criminal defendants who were not adjudicated guilty should not have to pass a First Amendment test to get their old court records sealed in all cases, the Florida Supreme Court ruled.

The Supreme Court said that protecting the public's First Amendment interest in open court proceedings was important but should be balanced against other interests, such as the policy of giving people a second chance in cases where a guilty verdict was withheld. The justices added that trial courts should consider any constitutional issues that come up in a particular case.

The court's decision struck down a 2nd District Court of Appeal ruling that required trial courts to apply a three-part test to each request for sealing records. The 1993 DCA ruling in State of Florida v. P.D.A. said that judges needed to determine whether sealing the court records would serve a compelling interest; whether a failure to close the records was likely to harm that interest; and whether closure was the only way to protect the interest adequately.

The Supreme Court also upheld a state law that requires people seeking closure of police and other non-judicial records to file a written request with the Florida Department of Law Enforcement. The FDLE verifies that the person is eligible to have the records sealed. (State of Florida v. D.H.W., Dec. 19, 1996)

DCA orders new trial after article used as evidence

DAYTONA BEACH - The 5th District Court of Appeal ordered a new trial for a man in Brevard County because the trial judge allowed a newspaper article to be introduced as evidence without requiring the reporter to testify.

Terry Dollar was convicted for sexual battery on a child and solicitation to procure a person under age 16 for prostitution. During Dollar's trial, Judge Alan A. Dickey, 18th Judicial Circuit, allowed the prosecution to enter a Florida Today article into evidence despite defense objections. The article about Dollar's arrest included comments attributed to him that the state said constituted admissions of guilt.

The Court of Appeal said Judge Dickey was "misled" by an attorney for Florida Today, who said in a pretrial hearing that the article was admissible and that the state could not call the reporter as a witness. The judge quashed a subpoena for the reporter after the hearing.

The appellate court said no reporter's privilege existed in this situation and that the article by itself constituted hearsay evidence. The article should have been admitted only if the defense had the opportunity to cross-examine the reporter about the story's contents, the court said. (Dollar v. State of Florida, No. 95-2537, Dec. 6, 1996)

Zile conviction doesn't end Kidwell case

MIAMI - A Dade County prosecutor said the state will continue to pursue a contempt case against Miami Herald reporter David Kidwell despite the conviction of the murder defendant Kidwell refused to testify against.

A jury convicted John Zile for the murder of his stepdaughter, Christina Holt. Kidwell had refused to testify about an interview with Zile and was sentenced in October to 70 days in jail. A federal judge released him after 15 days pending an appeal. (Brechner Report, December 1996)

Assistant State Attorney Scott Cupp said the state still had an interest in making sure witnesses testify when called. (11/20/96)

Banker wins $10 million judgement in suit against ABC

MIAMI - A federal court jury awarded a South Florida banker $10 million in libel damages over a 20/20 broadcast on ABC that said he misled investors.

Alan Levan, chief executive officer of BankAtlantic in Fort Lauderdale, sued the network after the 1991 program said he sold investors bonds that ABC characterized as "junk." Two federal regulatory agencies investigated Levan and brought no charges, but a civil court jury said Levan was guilty of securities fraud and awarded $8 million to investors.

However, ABC was not allowed to use evidence about the jury verdict in the libel trial because Levan settled out of court with the investors on the condition that the civil trial verdict be vacated. (Brechner Report, November 1996)

Levan said the main issue in the trial was fairness. For example, his lawyer said an ABC producer met with Levan for five hours and Levan offered to sit for an on-camera interview after canceling an earlier meeting, but ABC said on the air that he "wouldn't talk to us." (11/7/96-12/19/96)

DCA reinstates records suit to settle fee issue

LAKELAND - The 2nd District Court of Appeal ruled that a trial court was hasty when it dismissed a public records suit without determining if the fee assessed for the records search was reasonable.

Christopher Carden had sued the Clewiston police chief, saying the chief failed to comply with a public records request. The trial court in Hendry County denied Carden's petition for a writ of mandamus because the chief had responded to Carden's request.

The Court of Appeal said that while the chief did respond, the trial court also should have explored the issue of whether the police chief's charge of $4,000 to search records not on computer was reasonable. The court noted that Section 119.07(1)(b) of Florida Statutes requires that any special charges for records be "reasonable" and said the chief should be required to explain the cost. The appeal court ordered the 20th Circuit Court to rehear the case. (Carden v. Clewiston Chief of Police, Nov. 20, 1996)

Panel says lawyer could have taught

BOCA RATON - The state Ethics Commission ruled that it would not have been a conflict of interest for Florida Atlantic University to hire Florence Snyder Rivas to teach a media law course, even though her husband was representing the plaintiff in a suit against the school.

FAU decided not to allow Rivas, a South Florida attorney, to teach the course in the Fall 1996 semester. FAU said there would be a conflict because her husband and law partner, Robert Rivas, was representing an FAU professor and former dean in a public records lawsuit.

Robert Rivas' client, Sandra K. Norton, won her case in September. She sued after the university president refused to allow her to see documents related to the spending of a $10 million gift to the university. (Brechner Report, November 1996) (12/4/96)

Ocoee settles suit over ordinance

OCOEE - The Ocoee City Commission agreed to pay $15,337 in attorney's fees and costs to resolve a lawsuit over a city ordinance that required door-to-door canvassers to obtain permits.

Pamela Sue Jones and Marcia Muller challenged the ordinance in federal court as unconstitutional. Jones, who went door-to-door to share her Christian faith, and Muller, who distributed free voter information, said the ordinance was vague, overbroad, and a violation of their rights of free speech and free exercise of religion.

The ordinance made it a crime to sell anything or solicit donations door-to-door without a permit from the police chief. Permit applications asked for the applicant's place of residence, recent employment history and physical description. The chief was required to deny a permit to anyone not of "good moral character."

Ocoee officials said the law was never intended to affect political and religious activists such as Jones and Muller, who they said were mistakenly put through the application process. The city repealed the ordinance in October after officials gave up trying to rewrite it. (12/18/96)

Board keeps book in classes, library

VERO BEACH - The Indian River County School Board voted to allow fifth-graders to read an award-winning book despite parental complaints about passages related to spouse abuse and sex.

The board voted 3-2 to allow Julie of the Wolves, by Jean Craighead George, to be used at Osceola Magnet School as part of the students' study of the Arctic. A committee that reviewed the book recommended it be used in classrooms and kept in the school library.

Parents who object to the book will be able to choose another title.(11/13/96)

Federal judge dismisses defamation suit

FORT LAUDERDALE - A federal judge dismissed a defamation suit after ruling that the plaintiff, a former radio programming director, was a limited public figure and had not proved "actual malice."

Gary Bruce sued the Fort Lauderdale Sun-Sentinel and its TV-radio columnist Tom Jicha for libel. Jicha had written a story about Bruce's firing at WIOD-AM. Bruce also sued Neil Rogers, a WIOD on-air personality, for slander because Rogers read the Sun-Sentinel story to his audience.

U.S. District Judge Jose A. Gonzalez Jr., Southern District of Florida, said Bruce was a limited public figure because of his job deciding what WIOD put on the air. The judge said Bruce failed to prove that any false statements in the article were published with knowledge of falsity or a careless and reckless disregard for whether they were false or not.

Gonzalez also dismissed Bruce's breach-of-contract claim against WIOD Inc. (10/29/96) (Decisions on File, Bruce v. WIOD Inc., et al., No. 94-6986-CIV-GONZALEZ, Oct. 24, 1996)

Annual media-law conference set

Baltimore Sun columnist and author Jack W. Germond and Sam Reese Sheppard, son of Dr. Sam Sheppard, are among the scheduled speakers at the 23rd Annual Media-Law Conference set for March 8 in Fort Lauderdale.

The main general session will focus on the moral, ethical and legal questions the Internet will raise for journalists and lawyers.

Other general sessions will include a look at libel cases from the plaintiffs' viewpoints and two sessions with Florida Supreme Court justices, one on electronic access to court information and the other an open question-and-answer session.

Before the libel session, Sheppard will speak about his family's experiences with the media. Dr. Sam Sheppard was convicted of killing his wife in a sensational 1954 trial.

The conviction was overturned in a 1966 U.S. Supreme Court decision, Sheppard v. Maxwell, that sharply criticized the media circus surrounding the investigation and trial in Ohio. Sam Reese Sheppard is still struggling to clear his father's name, however.

Conference workshop topics will include publishing on the Internet, the future of the journalist's privilege in Florida, and the status of the Public Record and Open Meeting laws.

Registrations for the conference must be postmarked no later than Feb. 17. Registration information may be obtained by calling Toyca Williams at The Florida Bar at (904) 561-5766.

Brechner Center awarded grant

GAINESVILLE - The Brechner Center for Freedom of Information has received a grant to help produce a World Wide Web site for the National Freedom of Information Coalition. The $5,442 grant was funded by the NFOIC through a grant from the John S. and James L. Knight Foundation.

The Web site will contain information about state and national freedom of information laws as well as publications and organizations in each state that can provide more details. Links will be established to other Web sites devoted to media law.

The grant will fund a graduate student at the University of Florida who will work with Joel Campbell, past president of the Utah Foundation for Open Government, and Dr. Bill F. Chamberlin, director of the Brechner Center, to develop the Web site. Campbell and Chamberlin are members of the NFOIC executive board.

Brechner Report gets new editor

GAINESVILLE - Anthony L. Fargo, a doctoral student in media law and policy at the University of Florida College of Journalism and Communications, will begin serving as editor of The Brechner Report beginning with this issue.

Fargo received his bachelor's degree in English and journalism from Morehead State University in Morehead, Ky. He received his master of arts in mass communication with distinction from the UF College of Journalism and Communications.

Before entering UF for his master's degree, Fargo was a reporter and copy editor at newspapers in Kentucky and Florida. He also was a copy desk chief at The Orlando Sentinel.

Fargo plans to focus his doctoral research in the area of First Amendment theory as it relates to new media.

Fargo succeeds R. Michael Hoefges.

Judge refuses to stop publication

TAMPA - A circuit judge refused to stop The Tampa Tribune from publishing information it received from a court file in a civil lawsuit.

Judge Manuel Menendez Jr., 13th Judicial Circuit, said it was unclear whether the judge in the case intended to seal the court file. He noted that the file in a similar case against the same defendants was sealed.

However, he added that the question was irrelevant because the defendants in the civil case were seeking an unconstitutional prior restraint on the press.

Judge Menendez noted that the U.S. Supreme Court has ruled in at least two cases that a court could not lawfully halt the publication of information obtained in a judicial proceeding that should have been closed to the public.

The information obtained by the Tribune from the court file included documents related to a psychiatric evaluation of defendant Gregory Garner.

Statements in the document attributed to Garner indicate he admitted inappropriately touching minor children while employed at a church day-care center. The parents of a child who attended the center are suing the church and Garner. (Decisions on File, L.M. v. First Baptist Church of Tampa/First Baptist Church Daycare and Gregory Garner, No. 93-8465, Oct. 31, 1996)

Candidates should not be able to hide their pasts

Gene Roberts had a dark secret. And he had an obsession with seeking public office.

In 1996 he announced - for the ninth time - that he would be a candidate, this time for the Florida House seat representing South Lakeland.

Roberts had never been elected. As the campaign got under way in mid-summer, it appeared he was getting more support than in years past.

But then The Ledger in Lakeland began reviewing all local candidates' backgrounds, which included criminal background reports from the Florida Department of Law Enforcement.

When the Roberts report came back, it showed an arrest in 1994 for disorderly conduct. Yet when The Ledger's editorial page department had asked all candidates whether they had an arrest record, Roberts returned his questionnaire marked "No."

A Ledger reporter attempted to get the arrest report from the police department in Plant City, where the incident occurred. But the reporter was told that no record existed. Later, a court clerk said the file had been expunged.

In the meantime, Ledger editors asked Roberts in for an interview to discuss the incident. He obliged, and with his wife at his side, he said he had had an argument with a male friend and kicked in a door. He said he had no idea where the person was. And he said he had no idea why the file was unavailable.

Asked why he was deceptive on the questionnaire, he said he made a mistake.

A news story appeared the week before the first primary election detailing his version of events. The following week, he posted a strong showing, making it into the October runoff.

Yet questions persisted: Where were the court files? Did the records verify his version of the events?

In September, Ledger lawyer Gregg Thomas filed suit in Hillsborough County Court to gain access to the expunged arrest records. At a hearing before County Judge William Fuente, Thomas argued that the files should be open based on a 1990 ruling by the Second District Court of Appeal. That ruling outlined the criteria for opening files, including that "opening the records is in the public interest" and that there "is no other option other than unsealing records to get the information to the public."

But the most compelling reason for opening the file, Thomas argued, was Roberts' candidacy for public office.

Judge Fuente ruled immediately that the file should be made public. The Ledger had access to it that day. The arrest report and court file contradicted Roberts' version of events. It showed Roberts asked for the records to be expunged. It showed the altercation was between him and a female who knew him. It showed Roberts agreed to an alcohol evaluation because the police officer suspected he had been drinking the night of the arrest.

The case broke new ground in Florida. For the first time, Thomas said, a court ruled that an expunged court file of someone seeking public office must be opened when a showing of "good cause" existed. Here, the "good cause" was primarily Roberts' decision to become a candidate. The court found that if Roberts was elected he would represent more than 100,000 citizens in Polk County. Thus the need for immediate access. (Brechner Report, December 1996)

Three days after The Ledger reported Judge Fuente's ruling and the contents of the expunged file, Gene Roberts was defeated in the runoff election.

Louis M. "Skip" Perez is executive editor of The Ledger in Lakeland.

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