Two First Amendment victories in Florida

May 28, 2019 11:00

The sun is shining a little brighter in the Sunshine State, thanks to a pair of mid-May court rulings in cases involving press freedom in which the RTDNA Voice of the First Amendment Task Force has been involved.
First, a judge in Broward County denied a public school district request to hold the South Florida Sun Sentinel and two of its journalists in contempt for publishing a legally obtained unredacted version of a confidential report concerning accused Marjory Stoneman Douglas High School mass shooter Nikolas Cruz, a former student.
Last summer, Judge Elizabeth Scherer ordered the Broward County School District to release a consultant’s report about Cruz’ years as a pupil and what mistakes administrators and others made which may have been contributing factors leading up to the February 14, 2018, shooting in Parkland that left 17 students and teachers dead, and another 17 wounded.
At the direction of the judge, the district blacked out about two-thirds of the report to conceal legally restricted health and other information about Cruz. However, the evening the report was released, a reader alerted the Sun Sentinel that it was a .pdf file that could be copied and pasted into a Word document, where the redactions could be removed.
So, reporters Brittany Wallman and Paula McMahon did just that, then wrote a story detailing the full report findings; the paper also published the complete uncensored report. Editor-in-chief Julie Anderson said, “The Sun Sentinel obtained this report lawfully [and] found its contents to be of great public interest, and did its duty.” Still, the district filed its motion seeking to have the paper and reporters found in contempt of court. Judge Scherer went ballistic.
“You all manipulated that document so that it could be unredacted. … You acted in bad faith. … Shame on you. … From now on, if I have to specifically write word for word exactly what you are and are not permitted to print, … then I’ll do that. … Your actions are shameful,” the judge told an attorney representing the newspaper in open court.
RTDNA and 29 other press freedom and news organizations filed an amicus, or “friend of the court,” brief in support of the Sun Sentinel.
Chuck Tobin, the coalition’s lead attorney, told the paper that such a practice by a judge “would be ‘flatly unconstitutional. … The Supreme Court has repeatedly made it crystal clear that it is the government’s burden to safeguard information.’… It is ‘not the media’s burden to refrain from publication. … When the government fails to fulfill that burden it cannot punish the press for publishing information provided by the government, even if through inadvertent disclosure.’”
In the second case, a judge in Fort Myers has ruled in favor of two of the four defendants in a lawsuit brought by a former state attorney alleging defamation against Waterman Broadcasting’s WBBH-TV concerning a November 2016 investigative report that plaintiff Stephen Russell said left him with “hurt feelings.”

The judge’s ruling dismissed WBBH anchors Kellie Burns-Garvey and Peter Busch from the case and ordered Russell to pay their legal fees. Waterman and the reporter who did the story, David Hodges, remain as defendants.
As I wrote after the lawsuit was filed two years ago, “The WBBH story was based on a portion of a U.S. Department of Justice report which the station said pointed to Russell’s strict prosecutorial standards as being responsible for a high number of unsolved murders in Fort Myers. The city is part of the five southern Florida counties for which Russell [was] the chief prosecutor. That portion of the DOJ report said:
There is a perception among some stakeholders that county prosecutors will only authorize arrest warrants for those cases that have been proven beyond a reasonable doubt, versus the lesser standard of probable cause. This perception contributes to increasing numbers of cold cases and lack of confidence in government authority/police.
After depositions were taken, Russell doubled down, amending his lawsuit to allege Waterman, Burns-Garvey, Busch and Hodges were guilty of “intentional misconduct,” “gross negligence,” “actual malice” and “willful and wanton” misconduct. Under Supreme Court precedent, proving those allegations would allow Russell to collect punitive damages.
Russell’s attorneys have also hired an expert witness in their attempt to prove that the former state’s attorney was defamed.
University of South Carolina journalism professor Charles Bierbauer – whom you may remember as a top CNN correspondent from 1981 through 2001 – filed an affidavit, and later testified in a deposition, stating that “WBBH’s investigative report on the State Attorney’s Office is flawed in its preparation and presentation. … [It] constitute[s] reckless disregard for accuracy and truth. This is below the standard of journalism one would hope to find in a mid-sized market like Ft. Myers.”
Disregarding for the moment that a once-prestigious journalist would turn on current practitioners in the industry that made him prestigious, for a fee of $275 an hour (according to his deposition testimony), Waterman, WBBH and Hodges stand by their reporting and are still fighting Russell’s lawsuit vigorously.
In the weeks following the filing of the former state attorney’s lawsuit, RTDNA made available to WBBH the services of its Washington-based First Amendment attorney to assist in the preparation of filings. You can read the defendants’ original filing here. You can read all of the court documents in the case by going here and searching for case number 17-CA-000943.
If you or your newsroom is facing legal or other challenges to your constitutionally-guaranteed duty to seek and report the truth, reach out to our Voice of the First Amendment Task Force.
RTDNA’s Voice of the First Amendment Task Force defends against threats to the First Amendment and news media access and helps the public better understand why responsible journalism is essential to their daily lives. RTDNA is a founding partner of the U.S. Press Freedom Tracker, the archive of record for threats against press freedom in America. Reach out to the task force by contacting and contributing to support press freedom.