Cameras in the Courtroom

by Dana J. McElroy and Daniela B. Abratt

Introduction
Historical Perspective
Florida Courtrooms
Federal Courtrooms
Conclusion
What To Do When Someone Asks To Exclude Cameras

Q. Under what circumstances may cameras be excluded from a Florida state courtroom?

A. In general, cameras may be excluded from a courtroom in Florida if the person asking the judge to do so produces evidence to prove: (i) that the presence of the cameras has a qualitatively different effect on that person than on other people and (ii) that effect is qualitatively different from the effect of other types of media (such as print or radio). In the criminal context, the “effect” must be such that the defendant will be unable to receive a fair trial.

Introduction

For more than two decades, cameras and other electronic media have been allowed in Florida courtrooms. Camera coverage is a routine part of the state judicial system, although it still is generally prohibited in federal trial courts. Subject to clearly defined rules, cameras may be excluded from state courts only after an evidentiary finding that their presence would have a substantial effect on a trial participant. This substantial effect must be qualitatively different from the effect on members of the public generally and from that of coverage by other types of media. Camera coverage most commonly is challenged by criminal defendants who claim the coverage violates their constitutional rights.

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Historical Perspective

Despite their widespread acceptance today, cameras and other electronic media were banned from virtually all courtrooms for much of the twentieth century. The ban on electronic media from courtrooms commonly is traced to the 1935 trial of Bruno Hauptmann, who was accused of kidnapping and murdering the son of famous aviator Charles Lindbergh. The Hauptmann trial attracted hundreds of journalists and photographers, with accompanying distractions and disruptions, all vying for a shot at the sensational story.

In 1937, as a result of the overwhelming media presence at the Hauptmann trial, the American Bar Association (ABA) adopted Canon 35 of the ABA’s Canons of Judicial Ethics. Canon 35 recommended a ban of electronic media from courtrooms. In support of its recommendation, the ABA articulated concerns that electronic media coverage detracted from the dignity of judicial proceedings and created public misconceptions about the judicial process. Subsequently, the federal courts and all of the states adopted rules prohibiting electronic media in courtrooms. With few exceptions, cameras and other electronic media were banned from all courtrooms through the early 1970’s.

One of the exceptions was Texas, where beginning in the early 1960’s, cameras were permitted in the state’s courtrooms. This liberal policy led to televised coverage of the 1962 trial of Billy Sol Estes and formed the basis for Estes’ appeal to the United States Supreme Court. Estes, a Texas businessman convicted of swindling, argued the television and radio coverage deprived him of a fair and impartial trial and thus violated his constitutional right to due process. A majority (5-4) of the Court’s Justices agreed and voted to overturn Estes’ conviction. Estes v. Texas, 381 U.S. 532 (1965).

Although the Court held that camera and audio coverage violated Estes’ constitutional rights, only four of the five Justices in the majority agreed that the presence of cameras automatically violated a criminal defendant’s right to due process. The fifth Justice, Justice Harlan, stated that it was not constitutionally necessary to ban cameras from run-of-the-mill criminal trials and believed they also should be allowed for educational purposes.

The Estes majority cited numerous potential problems associated with camera coverage of criminal trials, including the adverse impact on jurors’ impartiality and the quality of witness testimony. The Court additionally was concerned that the presence of cameras would increase a judge’s already significant responsibilities and serve to harass the defendant.

Although the Estes Court held that there is no First Amendment right to broadcast from the courtroom, the Court recognized the importance of informing citizens of events and occurrences in criminal trials and court proceedings. The Court stated that in light of evolving technology, an absolute ban on cameras may not always be necessary. The Court thus explicitly left the door open for a future examination of the issue of cameras in the courtroom.

Because of the Estes decision, every state except Colorado continued the ban on cameras. In the 1970’s, however, a number of states, including Florida, revisited the issue and began to experiment with cameras in the courtroom. Florida’s program, which allowed electronic media coverage of judicial proceedings, ultimately resulted in an appeal to the United States Supreme Court and a landmark ruling.

In 1981, two Miami Beach police officers challenged their burglary convictions and argued that camera coverage, pursuant to the experimental program, had violated their constitutional right to a fair and impartial trial. The United States Supreme Court ruled that the Constitution does not prohibit states from permitting cameras in judicial proceedings. Chandler v. Florida, 449 U.S. 560 (1981).

The Chandler Court held that the Estes decision did not establish a blanket rule that electronic media coverage automatically violates the Constitution. Further, because of technological advances since Estes, states now should be permitted to allow cameras in courtrooms. The Chandler Court stated that criminal defendants must show actual prejudice to their constitutional rights before cameras can be banned. Thus, although the presence of cameras in some circumstances may violate a defendant’s constitutional rights, the Supreme Court refused to adopt an absolute prohibition on cameras in state courts.

As a result of Chandler, the ABA revised Rule 3A(7) of its Code of Judicial Conduct (formerly Canon 35) to permit cameras under guidelines designed to ensure the fair administration of justice. Currently, all states except Indiana, Mississippi, South Dakota, and the District of Columbia permit cameras in courtrooms on at least an experimental basis. Most of these states permit cameras in all courts, while the rest limit electronic media coverage to appellate proceedings, where jurors and witnesses are not present.

The 1995 murder trial of O.J. Simpson, which was televised nationally and watched by millions of viewers on a daily basis, rekindled the national debate about camera coverage of court proceedings, particularly criminal trials. For example, as a result of the Simpson trial, the Judicial Council of California considered banning cameras in state courtrooms. In May 1996, although the Council rejected a blanket ban on camera coverage, it expanded the circumstances under which judges may exclude cameras from a particular proceeding, and specifically prohibited coverage of jury selection, jurors and spectators in courtrooms. Further, in August 1996, a California Superior Court judge banned electronic media coverage of the Simpson civil trial, citing negative impacts such as participant distraction and undue influence he believed resulted from camera coverage of the criminal trial.

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Florida Courtrooms

Prior to the Chandler decision, the Florida Supreme Court reviewed results of its one- year pilot program and ruled that allowing cameras in state courtrooms did not inherently violate a defendant’s constitutional rights. In re Petition of Post-Newsweek Stations Fla., Inc., 370 So. 2d 764 (Fla. 1979). The court accordingly approved a change to the judicial rules that historically had prohibited camera coverage.

Specifically, the court amended Canon 3A(7) of the Florida Code of Judicial Conduct to allow camera coverage of judicial proceedings, subject to the authority of the presiding judge to control conduct and decorum of the proceedings and to ensure the fair administration of justice. The court since has adopted a new Code of Judicial Conduct, but explicitly did not repeal Canon 3A(7) and its accompanying commentary. The court stated instead that the Canon was moved to Rule 2.170 of the Florida Rules of Judicial Administration. In re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994). The rule since has been renumbered to Florida Rule of Judicial Administration 2.450 (Technological Coverage of Judicial Proceedings).

The Post-Newsweek court articulated a test for judges to use when determining if camera access should be denied. The court stated that trial participants seeking to prohibit camera coverage must show that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media. Post-Newsweek, 370 So. 2d at 779.

The court also announced specific standards of conduct and technology to govern electronic and still photography in judicial proceedings, which were amended in 2003. Amendments to the Florida Rules of Judicial Administration, 851 So. 2d 698 (Fla. 2003). The amended standards are reproduced in full at the end of this article. Generally, they provide for camera coverage as follows:

1. At least one portable television camera is allowed in trial and appellate proceedings. Additional television cameras may be allowed by the presiding judge at his or her discretion. Only one still photographer, with no more than two cameras, is allowed at any judicial
2. Audio pickup for all media purposes must be accomplished using existing systems present in the courtroom. If no suitable system exists, microphones and related audio equipment must be unobtrusive and located in designated
3. Pooling arrangements must be made by the media in advance, without judicial intervention. Absent advance agreement, contesting media personnel will be excluded from a particular
4. Camera personnel must use equipment that does not produce distracting light or sound. No artificial lighting device of any kind is
5. Cameras must be positioned in areas designated by the court. Camera personnel may not enter or leave the courtroom, move about, or change film, lenses or other equipment while court is in
6. Audio recording or broadcast of conferences between attorneys and clients, or between attorneys and the judge is
7. Film, photographs, or other recordings of the proceeding may not be used as evidence in any judicial
8. Court orders banning cameras are immediately reviewable pursuant to Rule 9.100(d) of the Florida Rules of Appellate

In ruling to permit electronic media coverage, the Post-Newsweek court rejected arguments that the presence of cameras would cause a laundry list of problems, such as physical disruption, adverse psychological effects on trial participants, prejudicial publicity and exploitation of courtroom images by the media.

The court based its conclusions on results of the one-year pilot program, commenced on July 5, 1977, that allowed cameras to cover all levels of the Florida court system without the consent of trial participants. At the conclusion of the program, the court requested that the parties, judges and media who participated report on their experiences with cameras in the courtroom. The court further ordered a survey of all participants, other than judges, and invited comments from members of the general public who attended trials covered by cameras. After reviewing and analyzing the results, the court concluded that the effects of camera coverage were not prohibited constitutionally, nor compelling enough to continue the ban on cameras. In this regard, the court stated:

While we do not accept all of the claims made by the proponents [of cameras] and will not discuss them in detail, we are persuaded that on balance there is more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage. The prime motivating consideration prompting our conclusion is this state’s commitment to open government.

Post-Newsweek, 370 So. 2d at 780. The court reasoned that trials were public events and that electronic media coverage of other branches of government both had informed the public about the operation of government and encouraged its representatives to act more responsibly. The court argued that, likewise, the judicial branch would benefit from such coverage.

Two years after Post-Newsweek, the Florida Supreme Court further refined and explained its Post-Newsweek holding. In State v. Palm Beach Newspapers, Inc., 395 So. 2d 544 (Fla. 1981), the court ruled that a trial court must hold an evidentiary hearing whenever the presence of cameras is challenged and must make specific findings on the record to support their exclusion. Id. at 548. Additionally, the court stated that the affected media must be permitted to participate in the hearing and that the qualitative difference required by Post-Newsweek must be real and identifiable, as opposed to general or speculative. State v. Green, 395 So. 2d 532 (Fla. 1981).

In the wake of Post-Newsweek, Florida courts at all levels have endorsed cameras in the courtroom, consistently ruling that their presence does not deprive criminal defendants of a fair trial or otherwise adversely affect judicial proceedings. See, e.g., Chavez v. State, 832 So. 2d 730 (Fla. 2002) (trial court’s refusal to prohibit camera coverage of jurors did not impair criminal defendant’s right to fair trial); Patten v.

State, 467 So. 2d 975 (Fla. 1985) (cameras did not interfere with criminal defendant’s right to consult with counsel); Jent v. State, 408 So. 2d 1024 (Fla. 1981) (alleged clicking of the camera was not distracting enough to deny criminal defendant effective assistance of counsel); Clark v. State, 379 So. 2d 97 (Fla. 1979) (criminal defendant failed to demonstrate specific denial of due process resulting from presence of cameras); WFTV, Inc. v. State, 704 So. 2d 188 (Fla. 4th DCA 1997) (restriction of camera coverage of jury was unsupported by proper findings); Times Publishing Co. v. State, 632 So. 2d 1072 (Fla. 4th DCA 1991) (criminal trial court order prohibiting media from publishing photographs of potential or seated jurors was unconstitutional); Gore v. State, 573 So. 2d 87 (Fla. 3d DCA 1991) (presence of cameras did not render criminal defendant incompetent to testify); Zamora v. State, 422 So. 2d 325 (Fla. 3d DCA 1982) (no ineffective assistance of counsel where defendant failed to show specific prejudice from unchallenged presence of television cameras); State v. Conde, 6 Fla. L. Weekly Supp. 692, 27 Media L. Rep. (BNA) 2311 (Fla. 11th Cir. Ct. 1999) (motion to restrict camera coverage of jurors and to seal juror information denied); State v. Conde, 6 Fla. L. Weekly Supp. 692 (Fla. 11th Cir. Ct. 1998) (motion to exclude cameras from all proceedings denied); State v. Chavez, 6 Fla. L. Weekly Supp. 691 (Fla. 11th Cir. Ct. 1998) (motion to exclude cameras from all proceedings denied); Lang v. Tampa Television, Inc., 11 Media L. Rep. (BNA) 1150 (Fla. 4th Cir. Ct. 1984) (despite plaintiff’s objection, restricted camera coverage allowed in civil proceeding); State v. Alvarez, 10 Media L. Rep. (BNA) 1493 (Fla. 11th Cir. Ct. 1984) (cameras could not be excluded from jury selection in criminal trial); In re B.P., 9 Media L. Rep. (BNA) 1151 (Fla. 4th Cir. Ct. 1983) (subject to certain restrictions, cameras could not be excluded from juvenile proceedings). But cf. Sunbeam Television Corp. v. State, 723 So.2d 275 (Fla. 3d DCA 1998) (restriction of camera coverage of jurors affirmed where jurors’ names and addresses were sealed).

The court additionally reaffirmed its commitment to camera coverage of judicial proceedings in late 2005 when it declined to amend then-Rule 2.170 to give trial courts broad authority to restrict such coverage to protect privacy rights and “confidential matters.” In re Amendments to the Rules of Judicial Administration (Two-Year Cycle), 915 So. 2d 157, 161-62 (Fla. 2005). The proposed rule change also would have provided for an automatic ban on photographing jurors’ faces. Id. at 162 n. 5. In so ruling, the court clarified that parties seeking to prohibit or limit camera coverage still must meet the Post-Newsweek test, after notice to the media and an opportunity to be heard. Id. at 162 n.7.

In another decision interpreting the rule, the First District Court of Appeal in 2010 in Morris Publishing Co. v. State et. al, held that that laptop computers are excluded from the scope of Rule 2.450 and are allowed in a court proceeding unless the court finds that such use will cause undue disruption. Morris, 2010 WL 363318, 38 Media L. Rep. (BNA) 1245 (Fla. 1st DCA Jan. 20, 2010).

Additionally, as part of its continued expansion of public access to courts, the Florida Supreme Court in late 1997 began statewide television broadcasts of its oral arguments. Spearheaded by former Chief Justice Gerald Kogan, the broadcasts are a joint project between the Florida Supreme Court and Florida State University’s Department of Communications and College of Law, and each broadcast is archived and available online at the Florida Supreme Court’s website. These broadcasts drew nationwide attention in November 2000, when oral arguments in the dispute over the Florida presidential election results reached millions of viewers.

In recent years, the Florida Supreme Court has further embraced advances in technology to promote public access to court proceedings. In January 2016, the Court released a 42-page communications plan called “Delivering Our Message,” which included a plan to standardize the communication methods used in Florida courts and to encourage courts to embrace new methods of communication, including social media.

In addition to its television broadcasts, in 2018, the Court became one of the few in the country to livestream its oral arguments on Facebook. In the Court’s press release, then-Chief Justice Jorge Labarga said:

In the 1970s, Florida became the first state to allow broadcasts of its court cases at a time when every other court in the nation refused it. This Court’s experiment with transparency showed everyone a better way to balance First Amendment rights against the rights of people involved in a trial or appeal. Social media will be our next step in moving this highly successful model of openness into the Twenty-First Century.

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Federal Courtrooms

Despite the routine presence of cameras in most state courtrooms, federal courts have yet to allow electronic media coverage of all federal proceedings. In March 1996, the Judicial Conference of the United States — the policy-making body for the federal courts — took a significant step forward when it decided that federal appellate courts may allow camera coverage of their proceedings. At the same time, however, the Judicial Conference reiterated its opposition to camera coverage at the trial level.

The federal court ban is incorporated in Canon 3A(7) of the Code of Judicial Conduct for civil proceedings, and in Rule 53 of the Federal Rules of Criminal Procedure for criminal proceedings.

In 1991, the Judicial Conference authorized a three-year experimental program permitting camera coverage in approximately eight civil trial and appellate courts. After an analysis of the program and its effect on jurors, judges, witnesses and the judicial process in general, the Committee on Court Administration and Case Management (CACM) recommended that the Judicial Conference authorize federal courts of appeals and district courts nationwide to provide camera access to civil proceedings.

On September 20, 1994, however, the Judicial Conference voted in a closed-door meeting to reject the Committee’s recommendation, as well as a proposed amendment to Rule 53 of the Federal Rules of Criminal Procedure. In support of its decision, and in apparent disagreement with a report of the Federal Judicial Center, the participating judges expressed concerns regarding the effect of camera coverage on jurors and witnesses. The federal pilot program ended on December 31, 1994.

Consequently, cameras still were prohibited in all federal courtrooms until the March 1996 decision to allow federal appellate courts to provide electronic media access to appellate proceedings. Since that time, only two federal appellate courts, the Second and Ninth Circuit Courts of Appeals, have elected to allow such coverage.

Although cameras continue to be banned from virtually all federal courtrooms, in a historic decision in late 2000, the U.S. Supreme Court allowed a delayed audio broadcast of oral arguments in the dispute over the presidential election. The Court refused, however, to allow camera coverage of the arguments.

In a progressive step in September 2010, the Judicial Conference approved a pilot project to allow cameras in federal district courts. The pilot, launched on July 18, 2011, lasted three years, and involved more than 100 district court judges in 14 jurisdictions, including the Southern District of Florida. The project required that all parties and the presiding judge approve in order to proceed with recording in that courtroom. At its March 15, 2016 session, the Judicial Conference received the report of its CACM, which agreed not to recommend any changes to the Conference policy at that time.

The Judicial Conference did, however, permit the Ninth Circuit Judicial Council to continue the pilot program in the three Ninth Circuit districts that originally participated in the cameras pilot program (California Northern, Washington Western, and Guam) in order to provide longer term data and information to CACM.

More broadly, the current policy for cameras in federal trial courts is as follows:

A judge may authorize broadcasting, televising, recording, or taking photographs in the courtroom and in adjacent areas during investitive, naturalization, or other ceremonial proceedings. A judge may authorize such activities in the courtroom or adjacent areas during other proceedings, or recesses between such other proceedings, only:

1. for the presentation of evidence;
2. for the perpetuation of the record of the proceedings;
3. for security purposes;
4. for other purposes of judicial administration;
5. for the photographing, recording, or broadcasting of appellate arguments; or
6. in accordance with pilot programs approved by the Judicial Conference.

When broadcasting, televising, recording, or photographing in the courtroom or adjacent areas is permitted, a judge should ensure that it is done in a manner that will:

1. be consistent with the rights of the parties,
2. not unduly distract participants in the proceeding, and
3. not otherwise interfere with the administration of

On the legislative front, in 2011, versions of the Cameras in the Courtroom Act were referred to United States Senate and House committees. That Act would require the Supreme Court to permit television coverage of all open sessions of the Court unless a majority vote of the judges decides that allowing the coverage violates the due process rights of any parties involved. The Act was reintroduced in March 2019 in the Senate and referred to the Committee on the Judiciary.

The Sunshine in the Courtroom Act, which has been introduced over several years beginning in 2005, also was reintroduced in the Senate in March 2019 and referred to the Committee on the Judiciary. The Act allows for any presiding United States district or appellate court judge to exercise his or her discretion in allowing cameras in court proceedings, rather than requiring a judge’s participation. Both the Cameras in the Courtroom Act and Sunshine in the Courtroom Acts are still under consideration.

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Conclusion

After many years of legal and political struggle, cameras are allowed, and frequently present, in state courtrooms nationwide. Although high-profile criminal trials have caused many states to reconsider their routine presence, Florida continues to lead in the nation with innovative ways to enable electronic access to its courtrooms. And while cameras still are prohibited in most federal courtrooms, efforts to permit such coverage continue in various forums.

What To Do When Someone Asks To Exclude the Cameras

Just as in the context of a request to close a hearing, you have a right to object to efforts to exclude cameras and to request that the judge follow the procedures established by the Florida Supreme Court. If someone asks the judge to exclude the cameras, you might say or write something like the following:

I am ___________, a reporter for _____________, and a citizen of this community. On behalf of myself, my news organization, and the rest of the public, and in accordance with Florida law, I object to the request to exclude cameras from this courtroom, and request an opportunity to be heard through counsel as Florida law requires.

I am not an attorney, but I understand the Florida Supreme Court permits cameras to be present in Florida courtrooms, and has established a test that must be met before the cameras can be excluded. At the very least, the law requires that a hearing be held, with the press and public having an opportunity to be heard through counsel, prior to closure. I therefore request such a hearing so our attorney can be heard on our behalf.

The same general principles regarding your right to be heard, asking for a stay, and so on, apply with respect to cameras as apply with respect to closure generally.

Rule 2.450. Technological Coverage of Judicial Proceedings

1. Electronic and Still Photography Allowed. Subject at all times to the authority of the presiding judge to: (i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions; and (iii) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of the state shall be allowed in accordance with the following standards of conduct and technology promulgated by the Supreme Court of Florida.
2. Equipment and Personnel.
   1. At least 1 portable television camera operated by not more than 1 camera person, shall be permitted in any trial court or appellate court proceeding. The number of permitted cameras shall be within the sound discretion and authority of the presiding judge.
   2. Not more than 1 still photographer, using not more than 2 still cameras, shall be permitted in any proceeding in a trial or appellate court.
   3. Not more than 1 audio system for radio broadcast purposes shall be permitted in any proceeding in a trial or appellate court. Audio pickup for all media purposes shall be accomplished from existing audio systems present in the court facility. If no technically suitable audio system exists in the court facility, microphones and related wiring essential for media purposes shall be unobtrusive and shall be located in places designated in advance of any proceeding by the chief judge of the judicial circuit or district in which the court facility is located.
   4. Any “pooling” arrangements among the media required by these limitations on equipment and personnel shall be the sole responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. In the absence of advance media agreement on disputed equipment or personnel issues, the presiding judge shall exclude all contesting media personnel from a proceeding.
3. Sound and Light Criteria.
   1. Only television photographic and audio equipment that does not produce distracting sound or light shall be used to cover judicial proceedings. No artificial lighting device of any kind shall be used in connection with the television camera.
   2. Only still camera equipment that does not produce distracting sound or light shall be used to cover judicial proceedings. No artificial lighting device of any kind shall be used in connection with a still camera.
   3. It shall be the affirmative duty of media personnel to demonstrate to the presiding judge adequately in advance of any proceeding that the equipment sought to be used meets the sound and light criteria enunciated in this rule. A failure to obtain advance judicial approval for equipment shall preclude its use in any proceeding.
4. Location of Equipment Personnel.
   1. Television camera equipment shall be positioned in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. If and when areas remote from the court facility that permit reasonable access to coverage are provided, all television camera and audio equipment shall be positioned only in such area. Videotape recording equipment that is not a component part of a television camera shall be located in an area remote from the court facility.
   2. A still camera photographer shall position himself or herself in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. Still camera photographers shall assume a fixed position within the designated area and, once established in a shooting position, shall act so as not to call attention to themselves through further movement. Still camera photographers shall not be permitted to move about in order to obtain photographs of court proceedings.
   3. Broadcast media representatives shall not move about the court facility while proceedings are in session, and microphones or taping equipment once positioned as required by subdivision (a)(3) shall not be moved during the pendency of the proceeding.
5. Movement during Proceedings. News media photographic or audio equipment shall not be placed in or removed from the court facility except before commencement or after adjournment of proceedings each day, or during a recess. Neither television film magazines nor still camera film or lenses shall be changed within a court facility except during a recess in the proceeding.
6. Courtroom Light Sources. With the concurrence of the chief judge of a judicial circuit or district in which a court facility is situated, modifications and additions may be made in light sources existing in the facility, provided such modifications or additions are installed and maintained without public expense.
7. Conferences of Counsel. To protect the attorney-client privilege and the effective right to counsel, there shall be no audio pickup or broadcast of conferences that occur in a court facility between attorneys and their clients, between co-counsel of a client, or between counsel and the presiding judge held at the bench.
8. Impermissible Use of Media Material. None of the film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence in the proceeding out of which it arose, in any proceeding subsequent or collateral thereto, or upon retrial or appeal of such proceedings.
9. Appellate Review. Review of an order excluding the electronic media from access to any proceeding, excluding coverage of a particular participant, or upon any other matters arising under these standards shall be pursuant to Florida Rule of Appellate Procedure 9.100(d).

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ABOUT THE AUTHORS

Dana J. McElroy is a partner at Thomas & LoCicero, PL in Fort Lauderdale. She specializes in media law, with an emphasis on libel defense and access to courts, meetings and records. Ms. McElroy has served as chair and vice chair of The Florida Bar’s Media & Communications Law Committee. A former editor of the Independent Florida Alligator, she worked as a reporter for the Florida Times Union and the Gainesville Sun before attending law school at the University of Florida.

Daniela B. Abratt is an associate attorney at Thomas & LoCicero, PL in Fort Lauderdale. Ms. Abratt focuses on media law and access issues, intellectual property, and other business litigation. Ms. Abratt graduated summa cum laude with a journalism degree from the University of Florida and worked as a freelance reporter for The Miami Herald before attending law school at the Florida International University College of Law. She completed a clerkship at the Eleventh Circuit Court of Appeals prior to joining Thomas & LoCicero.

Revised May 2020

Federal Sunshine Laws: The Freedom of Information Act

By Mary Nguyen-Nodelman

I. Introduction to Federal Access Laws
II. The Freedom of Information Act
III. History of FOIA
IV. FOIA or Privacy Act Requests
V. FOIA Exemptions
VI. Filing a FOIA Request or Privacy Act Request
Appendix A: Sample FOIA request letter
Appendix B: Sample Administrative Appeal Letter
Additional Government Resources

Introduction to Federal Access Laws

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, gives the public the right to request records from federal agencies.

The basic function of the Freedom of Information Act is to ensure the public has a right to know about the activities of its government. FOIA is the foundation of creating a transparent and accountable federal government.^[1]

Congress designed FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” ^[2] Corruption, government inefficiency, and mistrust of public institutions all flourish “unless the people are permitted to know what their government is up to.” ^[3]

After all, public scrutiny and an informed citizenry are “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” ^[4]

^[1] The committees that developed FOIA—the House Committee on Government Operations (now the House Committee on Oversight and Government Reform) and the Senate Committee on the Judiciary—were responding to perceived secrecy problems in the executive branch. Furthermore, these panels had no jurisdiction over legislation concerning congressional operations. Thus, FOIA was created, approved, and implemented with an executive branch focus. For more information on the limitations of FOIA applicability see Harold C. Relyea, “Congress and Freedom of Information: A Retrospective and a Look at the Current Issue,” Government Information Quarterly, vol. 26 (2009), pp.437-440.

^[2] Dep’t of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976) (quoting Rose v. Dep’t of Air Force, 495 F.2d 261, 263 (2d Cir. 1974)).

^[3] See Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973) (Douglas, J., dissenting)); see also id. at 772 n.20.

^[4] NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, [*862] 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978).

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The Freedom of Information Act (5 U.S.C. §552)

FOIA established, for any person—corporate or individual, citizen or otherwise—presumptive access to existing, unpublished agency records on any topic in the executive branch agencies and departments of the U.S. Federal government. ^[1] FOIA applies to any federal agency records that are either created or obtained by an agency and under the agency’s control at the time of the request. Under FOIA the term “record,” and any other term used in reference to information, includes any information that would be an agency record subject to FOIA, including records in electronic format, maps, photos, digital data, handwritten notes, and video and audio tapes.

A FOIA request can be made for any agency record. Federal agencies must disclose records unless they are protected from disclosure under FOIA.

A central part of processing a Freedom of Information Act (FOIA) request is searching for responsive records. FOIA requires Federal agencies to conduct searches “reasonably calculated to uncover all relevant documents.” ^[2]

Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, national security, and law enforcement.^[3]

Congress established nine categories of information that are not required to be released in response to a FOIA request because release would be harmful to a governmental or private interest. These categories are called “exemptions” from disclosure and protect for example, personal privacy, privileged communications, and law enforcement interests.

However, there is no central government records clearinghouse or standard way for agencies to search for records. Each agency creates, maintains, stores and retrieves its own records as it carries out its mission

FOIA does not apply to the legislative or judicial branches of the federal government or to state, local, or tribal governments.

Agencies subject to the FOIA are also subject to the Privacy Act.

The Privacy Act of 1974 (PA) provides safeguards against the invasion of privacy by the misuse of records and applies to personal information maintained by agencies in the executive branch of the federal government. The PA allows a citizen to learn how records are collected, maintained, used and disseminated by federal agencies; it also allows individuals to access that information and seek correction of inaccurate, incomplete or irrelevant information. Additionally, the Privacy Act provides a safeguard against others accessing information about you that could warrant an invasion of privacy.

^[1] See 5 U.S.C. § 552 (a)(3), (a)(4)(B), (b), (c).

^[2] See Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).

^[3] Id.

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History of the FOIA

In 1966, Congress enacted the Freedom of Information Act (FOIA), the first law establishing a statutory right of public access to Executive Branch information in the federal government.^[1]

The FOIA contains thirteen main subsections, the first of which establishes certain categories of information that must be proactively disclosed by federal agencies. ^[2][3]

There are three different mechanisms for making agency records available to the public.

First, agencies are to require publishing certain categories of documents in the Federal Register. ^[4]

Second, agencies must make certain records “available for public inspection in an electronic format.” ^[5]

Third, FOIA’s most-recognized provision, members of the public may request agency records, and the agency—subject to limited exemptions—must produce them. ^[6]

The record must be produced “in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” ^[7]

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, was enacted by Congress and signed into law by President Lyndon B. Johnson in 1966. The enactment of FOIA gave the public the right to obtain and access information from federal government agencies.

Previously, the government placed a burden on the individual making a request to prove a right to examine the documents. The enactment of FOIA reversed this process by placing the burden upon the government to justify withholding the documents. While FOIA does not require the government to create any documents regarding an information request, it requires that its agencies release any document, file or other record that already exists pertaining to the request. FOIA was amended in 1996 to include electronic information.

The FOIA evolved after a decade of debate among agency officials, legislators, and public interest group representatives. It revised the public disclosure section of the Administrative Procedure Act, which generally had been recognized as “falling far short” of its disclosure goals and had come to be looked upon as more of a withholding statute than a disclosure statute.

By contrast, under the FOIA, virtually any person can make a request for any reason and records must be made available to the public except to the extent they contain information that is specifically exempted from disclosure or specially excluded from the Act’s coverage in the first place.

The nine exemptions of the FOIA describe specific categories of information that are protected from disclosure, and generally they are discretionary, not mandatory, in nature.

The FOIA provides an administrative appeal process, and affords requesters a remedy in the United States district courts, where judges generally determine the propriety of agency withholdings de novo and agencies bear the burden of proof in defending their nondisclosure actions.

The FOIA was substantially amended in 1974. The 1974 FOIA amendments considerably narrowed the overall scope of the Act’s law enforcement and national security exemptions, and broadened many of its procedural provisions – such as those relating to fees, time limits, segregability, and in-camera inspection by the courts.

In 1976, Congress again limited what could be withheld as exempt from disclosure under the FOIA, this time by narrowing the Act’s incorporation of the nondisclosure provisions of other statutes.

In 1984 Congress repealed the expedited judicial review provision previously contained in former subsection (a)(4)(D) of the Act, replacing it with a more general statutory provision that allows courts to expedite a FOIA lawsuit only if “good cause therefor is shown.”

In 1986, Congress enacted the Freedom of Information Reform Act of 1986- which amended the FOIA to provide broader exemption protection for law enforcement information, added special law enforcement record exclusion provisions, and created a new fee and fee waiver structure.

In 1996, Congress enacted the Electronic Freedom of Information Act Amendments of 1996 which addressed the subject of electronic records, as well as proactive disclosures and agency backlogs of FOIA requests, among other procedural provisions.

The FOIA was further amended by the Intelligence Authorization Act for Fiscal Year 2003, which added language that precludes agencies of the “intelligence community” from disclosing records in response to any FOIA request that is made by any foreign government or international governmental organization, either directly or through a representative. This provision constitutes an exception to the general rule that “any person” may submit a FOIA request.

In 2009, Congress amended the law with the “OPEN FOIA Act of 2009”.^[8] Among other requirements, one section of the FOIA was changed- it provided specific criteria for the future statutory creation of exemptions that would allow federal executive branch agencies to withhold certain categories of records.

In 2016, Congress again amended FOIA, this time specifying that agencies shall make records available “for public inspection in an electronic format.” ^[9] As a result, agencies today simply post records in electronic reading rooms on their websites rather than requiring citizens to visit an agency’s physical reading room in person. ^[10]

^[1] 1 5 U.S.C. § 552 (2018); see also John Doe Agency v. John Doe Corp., 493 U.S. 146, 150 (1989) (“This Court repeatedly has stressed the fundamental principle of public access to Government documents that animates the FOIA.”).

^[2] See 5 U.S.C. § 552(a)(1), (a)(2) (2018).

^[3] The Freedom of Information Act’s reading-room provision requires agencies to post certain categories of documents without a request. 5 U.S.C.S. § 552(a)(2).

^[4] 5 U.S.C. § 552(a)(1).

^[5] Id. § 552(a)(2).

^[6] Id. § 552(a)(3).

^[7] Id. § 552(a)(3)(B).

^[8] Amendments to the Department of Homeland Security Appropriations Act, 2010; P.L. 111-83, Section 564. 123 Stat. 2184.

^[9] FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016).

^[10] See DOJ, Dep’t of Justice Guide to the Freedom of Information Act: Introduction, 6 (April 11, 2019); DOJ 2014 Guide to FOIA at 12-13.

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FOIA or Privacy Requests

Who is eligible to make a FOIA or PA request?

The general rule is that when documents are within a disclosure provision of the Freedom of Information Act (FOIA), a citizen is not required to provide a reason why they seek the information.^[1]

A FOIA request can be made by any individual, partnership, corporation, association or foreign government. Requests can also be made on behalf of any person by an attorney or representative. Federal agencies are excluded from making FOIA requests; however, states and state agencies may do so.

Only United States citizens and legal permanent residents of the United States are eligible to make a Privacy Act request. Therefore, nonresident foreign nationals may use the FOIA to request records about themselves.

^[1] Hulstein v. DEA, 671 F.3d 690, 693 (8th Cir. 2012).

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FOIA Exemptions

What kind of information is exempt under the Freedom of Information Act?

Congress established nine categories of information that are not required to be released in response to a FOIA request because release would be harmful to a governmental or private interest.

The nine FOIA exemptions (5 U.S.C. § 552(b)(1)-(9)) are:

Exemption 1: National Security. This exemption authorizes the president to make and enforce rules to keep information secret in the interest of national defense or foreign policy.

Exemption 2: Administrative Documents. This exempts from required disclosure routine and insignificant matters that are “related solely to the internal personnel rules and practices of an agency,” which, if released, would allow circumvention of an agency function.

Exemption 3: Information Exempted by Other Statutes. This exempts from required disclo­sure records that are “specifically exempted from disclosure by statute … provided that such statute (a) requires that matter be withheld from the public in such a manner as to leave no discretion on the issue, or (b) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” ^[1]

Exemption 4: Trade Secrets. This exemption protects “trade secrets and commercial or financial information” that individuals and businesses supply to government. For Exemption 4 to apply, Trade secrets and commercial or financial information obtained from a private source that would cause substantial competitive harm to the source if disclosed.

Exemption 5: Inter- and Intra-Agency Memoranda. The exemption protects agency memoranda or letters and reflects sev­eral common law privileges. These are internal records that are deliberative in nature, are part of the decision-making process, and contain opinions and recommendations.

Exemption 6: Personal Privacy. This exemption protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

Exemption 7: Law Enforcement Records. The purpose of this exemption is to protect law enforcement records and other information whose disclosure would jeopardize present and future investigations.

Exemption 8: Records of Financial Institutions. This applies to records related to government supervision of financial institutions such as banks and savings and loans. The purpose is to protect the security and integrity of financial institutions.

Exemption 9: This exemption applies to “geological and geophysical information and data, including maps, concerning wells.” This exemption protects oil well data and has been criticized as a “Texas touch,” providing blanket protection for oil well materials. The Interior Department has cited it on occasion to apply to water wells.

Learn more about FOIA exemptions.

^[1] An example is 50 U.S.C. sec. 403(g), under which the Central Intelligence Agency is not required to disclose its organization, functions, names, official titles, salaries or number of personnel employed.

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Filing a FOIA Request or Privacy Act Request

1. BEFORE YOU FILE A FOIA REQUEST

• Check whether the record you are searching for is already publicly available on the agency’s website.
• Downloadable copies of the most frequently requested documents are typically available on the agency’s website.
• Each federal agency handles its own FOIA requests.

You can find contact information for other federal agencies online at www.foia.gov.

If you cannot find the record you are seeking, consider sending an email before submitting a formal FOIA request. Sometime, responses are quicker via email.

2. USE THE FOIA SEARCH TOOL

A lot of information is already publicly available. You can find out by reaching out to the agency you’re interested in or by visiting their website or their FOIA Library. FOIA provides a search engine search across the government that allows you to search multiple websites to see what is already available online without the need for a FOIA request.

Should you make a FOIA or a PA request? The provisions of the FOIA and PA overlap in parts.

The laws have differing procedures and exemptions, resulting in the ability of information to be exempted under one law and disclosable under the other. To take maximum advantage of the laws, both should be cited in the request; however, requests made for information that does not relate solely to the requester may only be made under FOIA. If you have doubts about which laws to utilize, cite both the FOIA and PA when making an information or document request.

3. FOIA REQUEST

If the information you want is not publicly available, you can submit a FOIA request to the agency’s FOIA Office.

There is no specific form that must be used to make a request. The request simply must be in writing and reasonably describe the records you seek. Most federal agencies now accept FOIA requests electronically, including by web form, e-mail or fax.

Remember that some agencies can’t yet receive FOIA requests through FOIA.gov. For those agencies, the FOIA.GOV site will provide the information you need to submit a request directly to the agency.

4. PRIVACY ACT REQUEST

The only records subject to the Privacy Act are those maintained in a system of records. Under the law, a record includes most personal information maintained by an agency about an individual. A record contains individually identifiable information, including, but not limited to, information about education, financial transactions, medical history, criminal history or employment history. A system of records is a group of records that is actually retrieved by name, SSN or other identifying number assigned to an individual. Not all personal information is kept in a system of records; however, this information is accessible by making a FOIA request.

5. RECORDS AND FORMATS

A FOIA request can be made for any agency record. You can also specify the format in which you wish to receive the records (for example, printed or electronic form). The FOIA does not require agencies to create new records or to conduct research, analyze data, or answer questions when responding to requests.

6. IDENTIFY THE CORRECT AGENCY

There are more than 100 agencies, each agency handles its own FOIA requests. A breakdown of agencies by topic on USA.gov can help you identify the correct agency.

7. PROCESS

The agency will typically first search for the records and then review them to determine what can be disclosed. There are nine exemptions that protect certain types of information, such as personal privacy and law enforcement interests.

8. TIME

Under the FOIA, all federal agencies are ordinarily required to respond to a FOIA request within twenty business days, excluding Saturdays, Sundays, and federal holidays. This time period generally begins when the request is actually received by the FOIA office of the agency that maintains control of the records sought. An agency is not required to send any releasable documents to you by the last business day; it can send you a letter informing you of its decision and then send you the documents within a reasonable time afterward.

An agency may extend the twenty-day response time for an additional ten business days when “unusual circumstances” exist, including the following situations: (1) the agency needs to collect responsive records from separate locations; (2) the request involves a “voluminous” quantity of records that must be located, compiled, and reviewed; or (3) the agency needs to consult with another agency that has a substantial interest in the requested information.

Under the Privacy Act, there is no fixed time in which the agency must respond; however, it is good agency practice to acknowledge receipt of the request in 10 days and provide the information requested in 30 days. At many agencies FOIA and PA requests are processed by the same personnel and are attended to in the order in which they are received.

9. FEES

FOIA requesters may have to pay fees covering some or all of the costs of processing their requests, which can possibly include search and review costs and the cost of photocopies. Fees vary with the status or purpose of the requester. However, if disclosure of the requested information would substantially benefit the public interest, the laws generally require a waiver or reduction of such fees. Additionally, if the cost of responding to your request is so small that it falls below a certain level, most agencies automatically waive assessment of the fees.

Under the Privacy Act, fees may only be charged for record-copying costs. No fees are charged for the cost of search and review of the records to determine any applicable exemptions. Many agencies will not charge fees for copying of a record, especially with small files, and an agency can waive fees if they pose a financial hardship.

10. APPEALS

Not all records are available to be released; some records may be withheld to protect important government interests, such as national security or law enforcement.

If an agency determines it will not comply with the request or you have received an adverse response, you may appeal the decision. You must submit an appeal postmarked within 30 days of the denial letter. The agency is required to respond to the appeal within 20 business days. If the appeal is denied, then the agency must inform you of the provisions for a judicial review.

However, a party whose request is refused “must exhaust his administrative remedies before filing a court action.” ^[1] To state a cause of action under FOIA, a plaintiff must allege that a government agency has (1) improperly (2) withheld (3) agency records. ^[2]

^[1] Gasparutti v. United States, 22 F. Supp. 2d 1114, 1116 (CD. Cal. 1998).

^[2] Bosworth v. United States, No. CV 14-0283 DMG (SS), 2016 U.S. Dist. LEXIS 134871, at 11 (C.D. Cal. July 22, 2016); Schiffer v. F.B.I., 78 F.3d 1405, 1408 (9th Cir. 1996); Gasparutti, 22 F. Supp. 2d at 1116 (court lacked subject matter jurisdiction over FOIA claim where plaintiff “failed to allege a request, refusal and exhaustion of his administrative remedies”).

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Sample FOIA request letter

Under the Freedom of Information Act, 5 U.S.C. section 552, I am requesting the following information *

CERTIFIED- RETURN RECEIPT REQUESTED

Date: ___________________
Freedom of Information Act (Coordinator of Unit)
_______________________________Agency
Washington, D.C.

FREEDOM OF INFORMATION ACT REQUEST

Dear Sir or Madame:

This is a request under the Freedom of Information Act as amended (5 U.S.C. Sec. 522) on behalf of (name of news organization and ___________________ one of its reporters).

We request a copy of the following:

(Describe information requested as precisely as possible).

As you know, the Act provides that if some parts of a file are exempt, the ‘reasonably segregable’ portions shall be provided. I, therefore, request that, if you determine that some portions of the requested information are exempt, you provide me immediately with a copy of the remainder of the information. I, of course, reserve my right to appeal any such decisions.

If you determine that some or all of the information is exempt from release, I ask you to advise me as to which exemption you believe covers the material which you are not releasing.

I am prepared to pay reasonable duplication fees for processing this request. I am willing to pay up to a maximum of $. If you estimate that the fees will exceed this limit, please inform me first.

As you know, the Act permits you to reduce or waive the fees if it ‘is in the public interest because furnishing the information can be considered as primarily benefiting the public.’ Since the information is sought for publication by (name of news organization), I believe that this request plainly fits that category and ask you to waive any fees.

If you have any questions regarding this request, please telephone me at _____________________.

As provided in the Act, I will expect to receive a reply within 20 business days, as the statute requires.

Sincerely,

Sample Administrative Appeal Letter

CERTIFIED – RETURN RECEIPT REQUESTED

Date: _____________________
Name of Agency Official
Title
Name of Agency
Address
City, State, Zip Code

RE: FREEDOM OF INFORMATION ACT APPEAL

Dear________________:

This is to appeal the denial of my request for information pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 522.

On ___________________________________ (date), I received a letter from ___________________ (individual’s name) of your agency denying my request for access to _________________________ (description of information sought).

I am enclosing a copy of this denial along with a copy of my original request. I trust that an examination of these communications and the exemptions which are cited to deny my request will lead you to the conclusion that the information I am seeking should be disclosed.

However, even if the exemptions technically could be invoked, I urge you to release the requested information unless you determine that some demonstrable harm will occur as a result of disclosure.

(When agency delays) It has been (state number) of days since your agency received my request. This clearly exceeds the 20 days provided by statute; thus I deem my request denied. A copy of my correspondence and the postal form showing receipt by your office is also enclosed.

The information that I have requested is clearly releasable under the FOI Act.

I made this request in the capacity as a journalist. The information is timely, and its release serves an important public policy. Therefore, I would appreciate your expediting the consideration of my appeal in every way possible. In any case, I will expect to receive your decision within 20 business days, as required under the statute.

Thank you for your assistance,

Sincerely,

Signature
Name
Address
City, State, Zip

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Additional Government Resources

• Data.gov is the one stop website to find and download free government data in raw, structured formats. Federal agencies are proactively posting data on data.gov, including data that is the subject of frequent FOIA requests.
• Federalregister.gov is the daily gazette of government. The Federal Register contains information about new and pending rulemakings and other activities of the executive branch. It is fully searchable.
• Grants.gov is the place to look for grant opportunities.
• Regulations.gov is the place to look for and comment on regulatory rulemakings.
• Fedbizopps.gov is the place to find out about opportunities to do business with the federal government.
• USAJobs.gov is the place to find out about employment with the federal government.
• USA.gov is the US Government portal. It can help you navigate around the Federal government.

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Mary Nguyen-Nodelman is a criminal defense attorney at the Public Defender’s Office in the Thirteenth Judicial Circuit in Tampa and member of The Florida Bar’s Media and Communications Law Committee. She worked as an investigative journalist for more than 17 years. The Emmy-nominated reporter has worked at various ABC, NBC and Fox television stations across the country. She has also been published in USA Today and the Los Angeles Times. Nguyen focused on law and the court system while she was a journalist and covered high profile cases such as the Casey Anthony, Trayvon Martin and Jodi Arias cases. Nguyen received her Bachelor of Arts degree in Communications from the University of California at Los Angeles and a graduated from Florida State University College of Law.

FOIA Requests in Light of COVID-19

The Department of Justice’s FOIA Guidelines emphasize, the FOIA “reflects our nation’s fundamental commitment to open government.” During these times, even as agencies are working under new constraints in light of COVID-19, agencies’ legal obligations under the FOIA continue.

The law remains an important tool for the public to gain access to government information to stay informed about government activities. Accordingly, as a general matter, to the extent feasible agencies should work to ensure that their FOIA operations continue in compliance with the FOIA’s requirements.

FOIA’s Statutory Time Limits Remain

All of the FOIA’s statutory response timeframes continue to apply during workforce adjustments such as maximum telework or building closures.

The FOIA generally gives agencies twenty (20) working (business) days to respond to requests and appeals, unless there are unusual circumstances as defined by the FOIA, in which case agencies can extend the deadline by up to an additional ten working days. 5 U.S.C. § 552(a)(6)(A)-(B) (2018) .

The FOIA permits agencies to “toll” the time needed to respond to a request one time for clarification and as many times as needed for fee questions. Id . § 552(a)(6)(A)(ii) . The FOIA also requires agencies to respond to requests for expedited processing within ten calendar days. Id . § 552(a)(6)(E)(ii) .

During this time of COVID-19-related limitations, an agency may still receive additional time to respond to initial requests if the agency can demonstrate that it satisfies the standard for unusual circumstances or tolling under the statute.

Agencies should do their best to timely acknowledge requests and appeals, notify requesters of any unusual circumstances, and make timely determinations on requests for expedited processing. Untimely action in acknowledging requests/appeals or making expedited processing determinations can result in several consequences for the agency in handling those requests.

For example, the FOIA prohibits the assessment of certain fees if the FOIA’s time limits are not met, subject to certain exceptions. See id. § 552(a)(4)(A)(viii)(I) .

Two of those exceptions rely on the agency providing requesters with timely notices of “unusual circumstances” as defined in the FOIA. See id. § 552(a)(4)(A)(viii)(II)(aa)-(bb) .

Additionally, an agency’s failure to respond to a request for expedited processing within ten (10) calendar days is subject to judicial review. See id. § 552(a)(6)(A)(iii) .

In accordance with past guidance issued by OIP, for the purposes of the Annual FOIA Report agencies must include all days other than Saturdays, Sundays, and legal public holidays in their calculations of the amount of time a request or appeal has been pending and the amount of time it took an agency to process the request or appeal.

Accordingly, even where an entire agency FOIA office is closed due to weather conditions, furloughed employees, or other circumstances such as COVID-19, the agency must count those days for reporting purposes.

Clear and Effective Communication with Requesters

Agencies are encouraged to consider how they can communicate most effectively with requesters throughout the FOIA process during this time.

Agencies can take two steps in particular: (1) provide general notices to requesters concerning the potential impacts of COVID-19-related changes on FOIA operations, and (2) work directly with requesters to tailor their requests to receive the most efficient responses.

First, agencies are starting to post notices on their FOIA websites and include language in their letters to inform requesters of any anticipated delays.

For example, agencies are experiencing delays due to requests submitted by physical mail or facsimile. Agency’s notice may encourage requesters to submit electronic requests for faster response.

Some agencies have posted such notices on their FOIA websites. OIP posted this:

Due to the COVID-19 pandemic, OIP has adjusted its normal operations to balance the need of completing its mission as effectively and efficiently as possible while also adhering to the recommended social distancing for the safety of our staff. As a result, you may experience a delay in receiving an initial acknowledgment as well as a substantive response to your FOIA request or appeal. We will be able to acknowledge requests made electronically more quickly than by mail. You may reach out to our FOIA Requester Service Center and FOIA Public Liaison if you have any questions about your request. We apologize for this inconvenience and appreciate your understanding and patience.

Agencies are making efforts to communicate with requesters directly about how their request could be reformulated or more narrowly tailored so that it can be processed most efficiently in the current environment.

For example, if a FOIA professional is unable to access certain records remotely during telework conditions, agencies are encouraged to communicate to the requester to see if the requester is interested in reformulating their request in a way that it can be processed more efficiently.

Strategically Managing Requests Using Multitrack Processing and Interim Releases Can Maximize Efficiency in Responding to Requests

Agencies should be making every effort to retrieve and process records remotely and provide interim responses, even if other portions of the request cannot yet be completed under the current limitations.

PROACTIVE DISCLOSURES

The FOIA Improvement Act of 2016 codified the longstanding policy of the Department of Justice to post “copies of all records . . . that have been released to any person under [the FOIA] and . . . that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or . . . that have been requested 3 or more times.” See 5 U.S.C. § 552 (a)(2)(D) (emphasis added) .

Leveraging Technology

Over the past ten years, OIP has focused on the increased use of technology to assist agencies in managing their FOIA requests. Agencies have made advancements in their use of more automated FOIA case management systems, new online portals, and advanced review and processing tools.

A recap of this event and the best practices shared can be found on the Best Practices Page of OIP’s website.

Available Government-wide DOJ Resources

The Department of Justice Guide to the FOIA, a comprehensive legal treatise on the FOIA, is available and continues to be updated.

OIP also continues to update its website’s Court Decisions page, which contains summaries of significant FOIA court decisions.

OIP’s Best Practices Workshop Series page was also recently updated to reflect best practices identified at our most recent workshop on technology.

Updated October, 2020

Reporter’s Handbook: Florida Bar Legal Citations

By Edward M. Mullins and Annette C. Escobar
Astigarraga, Davis, Mullins & Grossman, P.A.

I. Legal Citations–Introduction, Source, Authority
II. The Judicial System

III. Statutory and Administrative Materials

IV. Bluebook Default Rules

Footnotes

I. Legal Citations–Introduction, Source, Authority

It is customary for attorneys, scholars, the courts, and professionals from all fields to utilize specific, highly technical rules of citation when citing legal authority. These rules are often overly complex and not tailored for use by individuals who have not been exposed to legal writing courses or law school. However, it is important for professionals from other fields to be familiar with these rules. Proper citation increases credibility and adds an additional element of authoritativeness to any piece utilizing legal authority.

Once the citation rules are broken down and taken in their purest form, however, and after eliminating technicalities that rarely arise in practical experience, the rules are quite simple. Basic citation forms exist for most regularly cited legal sources that are easily adapted to different situations once one comprehends the basic rules underlying the citation system.

In Florida, two authorities are helpful for appropriate citation. The Rules of Appellate Procedure, Rule 9.8, sets forth a Uniform Citation System. This Rule applies to all legal documents, including court opinions, and takes precedence over all other citation rules. It is the primary authority in determining how to cite a source.¹ The scope of the Rules of Appellate Procedure, however, is limited and the Rules do not encompass many of the sources that one may wish to cite.

Where the Florida Rules do not address a particular citation, The Bluebook: A Uniform System of Citation, published by the Harvard Law Review Association controls. The Bluebook, as it is commonly referred to, spans more than three hundred pages. The editors published a new Eighteenth Edition in 2005 that encompasses several changes.

We will briefly review the basic citation forms that are applicable for judicial, executive, statutory, and administrative materials. We will then point out citation forms for several other commonly used sources, such as electronic databases. Finally, we will review several underlying rules that apply to all citations. For purposes of contrast, the citations will be bolded; but it should be noted that, in practice, cites are not bolded.

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II. The Judicial System

Citations to cases, administrative agency decisions, and other judicially issued opinions are governed by the Florida Rules of Appellate Procedure. Separate and distinct rules exist for each court system, state and federal, and within that, each court level. We will first review Florida judicial citations generally, and then cover federal judicial citations.

A. STATE

i. Florida Supreme Court

The proper citation for Florida Supreme Court decisions is dependent upon the year in which the opinion was issued. Generally, an opinion of the Florida Supreme Court will appear:

Smith v. Jones, 700 So. 2d 1350 (Fla. 1999).

In this citation, the 79 represents the volume of the Southern Reporter in which the case is found. “So. 2d” represents the reporter, specifically, the Second series of the Southern Reporter. The first series utilizes an “So.” in its place. The third entry, 1350, represents the page of the reporter at which the case is found. Finally, in the parentheses, first is the Court, “Fla.” for the Florida Supreme Court, and second, the year in which the opinion was issued, 1999. This same general citations format which applies to the citations of all state cases.

For cases issued before 1886, “Fla.” was the reporter being utilized and a “Fla” would accordingly replace the “So. 2d” in the citation above

e.g., Smith v. Jones, 79 Fla. 1350 (Fla. 1885).

Between the years of 1887 to 1948, during which time both the “Fla.” and the “So.” reporters were being used, the proper citation includes only the “So.” reporter.

e.g., Smith v. Jones, 76 So. 1350 (Fla. 1936).

For all opinions issued after 1948 which are published in the Southern Reporter, the proper citation form utilizes either So. or So. 2d, depending on the series.

Recent opinions often are not yet published in the reporters. Under such circumstances, one cites to the Florida Law Weekly if possible:

e.g., Jones v. Smith, 25 Fla. L. Weekly S500 (Fla. Oct. 27, 2000).

If the opinion is not in the Florida Law Weekly, then the slip number should be used:

e.g., Jones v. Smith, No. 77,653 (Fla. Oct. 27, 2000).

In the case of yet unpublished Court opinions, electronic databases, such as Westlaw and Lexis, should not be utilized except as a last resort. Unpublished opinions, however, may be cited in that form.

ii. Florida District Court of Appeal

Opinions issued by the Florida District Court of Appeals are governed by largely the same rules as opinions of the Florida Supreme Court. A typical citation for a District Court of Appeals would appear:

The cite is identical to the Supreme Court cite, except that the designation of the court is different. The “3d DCA” indicates that the Third District Court of Appeals issued the decision. The same principle would apply in the First (1st):

Second (2d):

Fourth (4th):

and Fifth (5th) districts:

The rules for not yet published and unpublished opinions are likewise the same as those for Supreme Court decisions.

iii. Florida Circuit and County Court

Many opinions from the Circuit and County Courts of Florida are not published. However, some of them appear in the Florida Supplement. When such opinions do appear in the Florida Supplement, Circuit and County Court cases are respectively cited as follows:

Jones v. Smith, 79 Fla. Supp. 1350 (Fla. 11th Cir. Ct. 1999);

Jones v. Smith, 79 Fla. Supp. 1350 (Fla. Dade Cty. Ct. 1999).

Once again, unpublished opinions are governed by the same rules which govern such opinions issued by the Supreme Court.

iv. Administrative Agency Decisions

In all but two instances, which will be discussed shortly, the citation for administrative agencies appears as follows:

The department that issued the opinion is substituted for “Department of Ins.” F.A.L.R. is the reporter in which administrative agency decisions appear; the letters stand for the Florida Administrative Law Reporter.

Special citation forms are applicable to The Public Employees Relations Commission and the Florida Public Service Commission. In the instance of the former, the cite would appear as:

Jones v. School Bd., 7 F.P.E.R. ¶ 2413 (1999).

Decisions from the Florida Public Service Commission are cited as:

In re Application of Jones, 7 F.P.S.C. 2:413 (1999).

Once again, the first number represents the volume and the sequence of letters represent the reporters. In the former citation, the second number employed represents the paragraph of the volume in which the particular opinion appears. In the latter citation, the number before the colon represents the column and the number after the colon represents the page number.

B. FEDERAL

i. US Supreme Court

Cases decided by the United States Supreme Court appear in several different reporters, including the United States Reports, the Supreme Court Reporter, The Lawyer’s Edition, United States Law Week, and Florida Law Weekly Federal. If a particular opinion is cited in all the aforementioned reporters, a party should first choose the United States Reports,

e.g., Jones v. Smith, 530 U.S. 1350 (2000).

In the absence of the opinion being published in the United States Reports, one should cite the next available reporter in the order in which they are listed above.

e.g., Jones v. Smith, 162 S. Ct. 756 (2000);

Jones v. Smith, 147 L.Ed.2d 597 (2000);

Jones v. Smith, 68 U.S.L.W. 4643 (2000);

Jones v. Smith, 13 Fla. L. Weekly Fed. S457 (2000);

ii. Federal Court of Appeals

Opinions issued by the Federal Courts of Appeal are generally cited as

Jones v. Smith, 35 F.3d 440 (11th Cir. 1999).

There are presently three series of the Federal Reporter, F., F.2d and F.3d, in which opinions from the Federal Court of Appeals are published. If an opinion is not cited in the Federal Reporter, the Florida Law Weekly Federal is then cited, which would appear:

. Federal District Courts

Federal District Court opinions are generally cited as:

Jones v. Smith, 35 F. Supp. 2d 1029 (S.D. Fla. 1999).

There are presently two series of reporters F. Supp. and F. Supp. 2d. Additionally, the particular court which issued the decision is indicated as S.D., Southern District, illustrated above, M.D., Middle District and N.D., Northern District, illustrated below:
Jones v. Smith, 35 F. Supp. 2d 1029 (M.D. Fla. 1999);

and

Jones v. Smith, 35 F. Supp. 2d 1029 (N.D. Fla. 1999).

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IV. Bluebook Default Rules

A. MISCELLANEOUS

i. Legislative Materials

Besides statutes, there is a plethora of other materials which are produced by the legislative branches of government. One such category is Bills and Resolutions. Generally, enacted Bills should be cited as the analogous statute. Unenacted Bills are cited as:

S. 513, 110th Cong. 1 (2000); or

H.R. 342, 105th Cong. (1998); or

Protection From Personal Intrusion Act, H.R. 2445, 104th Cong. 1 (1993).

First, state the name of the bill, if relevant, then the abbreviated name of the house, the number of the bill, the number of the Congress that enacted it, the section cited, and the year of the publication. Resolutions are cited in the same manner:

H.R. Res. 567, 103rd Cong. (1996); or

S. Res. 632, 102nd Cong. (1995).

Enacted federal bills would be cited in this fashion only for the purpose of pointing out or emphasizing the legislative history of the bill. If any one piece of data is missing, cite the next piece of information that is available.

If state bills or resolutions are being cited, state the abbreviated name of the legislative body, the number of the bill, the number of the legislative body or session, and the number or designation of the legislative session. In parenthesis, place the abbreviated name of the state and the year in which the bill or resolution was enacted. The cite would appear:

H.R. 138, 143d Gen. Assem., 424th Reg. Sess. (Ga. 1999).

When citing Congressional Hearings or Hearings before federal committees, include the title of the hearing as it appears on the cover, the bill number, the subcommittee name, the committee name, the number of the Congress, the page number of the material, and the year of the publication. If a particular piece of information is missing, simply go to the next information available. The cite would appear:

Tax Credit for Cost of Providing Commuter Benefits to Employees: Hearing on H.D. 534 on H.R. 3443 and H.R. 4356 Before the H. Comm. on Ways and Means, 105th Cong. 48-49 (1999) (statement of Mark Nelson, Member, House Comm. on Ways and Means).

If a hearing before the state legislature is cited, add the number of the legislative session between the name of the hearing and the Legislative Session, set off by commas.

Citation to numbered federal reports should include the abbreviation for the entity issuing the report, the number of the Congress connected by a hyphen to the number of the report, the page on which the material begins and the year of the publication. The citation to a house and senate report is cited:

H.R. Rep. No. 98-233, pt. 2, at 67 (1954);

S. Rep. No. 89-9, at 27 (1958).

All numbered federal documents are cited in an analogous manner except that the abbreviation Doc. is added between the legislative body abbreviation, “H.R. Rep.” or “S. Rep.” and the “No.” If a document has a title and/or author, they should be indicated in front of the citations which appear above, with the author appearing first, separated by a comma from the title.

If the document is not numbered, the citation would appear:

Staff of S. Comm. on the Judiciary, 97th Cong.,
Report on the Federal Arbitration Law 39 (1987).

ii. Administrative and Executive Materials

This portion includes several different materials including rules and regulations, administrative adjudications, arbitrations, and advisory opinions, among others. Final rules and regulations promulgated by the executive branch normally appear in the Code of Federal Regulations:

FCC Television Airwaves Services and Regulations, 48 C.F.R. 38.48 (1993).

First, cite the title of the rule or regulation. The first number in the citation represents the CFR title number. The second number represents the particular section cited. Finally, always include the year of the publication. If the rule or regulation does not appear in the CFR it will most likely be contained in the Federal Register:

FCC Television Airwaves Services and Regulations, 60 Fed. Reg. 68,380, 68,382 (Oct. 25, 2000) (to be codified at 48 C.F.R. 38.48).

The first number represents the volume of the federal register, and the second two numbers represent the pages on which the rule or regulation appears. Proposed rules and regulations merely contain the word “proposed” in front of the date, inside the parentheses. Executive orders, presidential proclamations and executive reorganization plans generally appear in CFR, the United States Code or the Annotated Code. If the document appears therein, those are the preferred publications. In the alternate, cite the Federal Register if therein.

Generally, administrative adjudications and arbitrations are cited in the same manner as cases. The only differences are that in administrative adjudications, only the name of the first private party or subject matter is used and the abbreviations used are those for the applicable tribunal as opposed to the court reporters. Citations to arbitrations, however, utilize both adverse parties (if given) or are otherwise cited in the same manner as administrative decisions. Additionally, the arbitrator’s name should be given parenthetically after the date: (Kruger, Arb.).

Advisory opinions issued by the United States Attorney General are cited:

42 Op. Att’y Gen. 238 (1989).

The first number is the volume in which the opinion appears. The second portion is the type of opinion, including the governmental agency that issued the opinion. The third number represents the page number on which the opinion appears and finally the year. If the opinion has a title, include the title before the citation, separated by a comma.

iii. Foreign conventions and treaties

Citation to international treaties and conventions is becoming increasingly popular as the world moves towards globalization. In citing treaties and conventions, the general citation form appears:

North American Free Trade Agreement, U.S.-Mex., May 27, 1988, 35 U.S.T. 1988.

The name of the agreement is given first in all instances, followed by the date of signing. Next, where there are two or fewer parties, as is the hypothetical example given, state the abbreviations for the two countries and finally the Treaty or Convention source, with the volume and page number. If there are more than two parties to the treaty or convention, the citation appears:

North American Free Trade Agreement, May 27 1988, 73 Stat. 3387, 35 U.N.T.S. 1988.

Leave out the particular countries and add the additional identification for the particular section of the reporter where such treaties and conventions appear. If there is a particular subdivision to which one wishes to cite, it should appear immediately after the date. The reporters in which these documents will appear, in which the United States is a party, include U.S.T. or Stat.; T.I.A.S. or T.S. or E.A.S; Senate Treaty Documents or Senate Executive Documents; the Department of State Dispatch or Department of State Press Releases. If it does not appear in one of these sources, any source may be cited. Where the United States is not a party, the official reporters of the foreign entities are preferred.

iv. Periodicals and Newspapers

The citation form for newspapers and periodicals is:

Eddy C. Chin, Capital Gains in the Presidential Race, Nov. 17 1999, at 45a.

First, indicate the author and the title. Next, list the date of the article, and finally, the page on which the article appears. The article title is italicized.

v. Law Reviews

Law Reviews are cited similarly to newspapers and periodicals:

Carlos C. Chintz, Capital Gains Treatment of Retirement Benefits, 49 U.S. Tax J. Law 978, 999 (2000).

First, state the author, followed by the title of the article. The title is italicized. Next, cite the volume in which the article appears and the Law Review abbreviation. Third, state the page on which the article appears and if applicable, the particular page which is cited. Finally, place the year of publication in parenthesis.

vi. Books

Books also are cited similar to newspapers, periodicals, and law reviews. Preliminarily, the citation generally appears:

Chris C. Chin, Capital Gains Treatment of Retirement Benefits 49 (2d ed. 2000).

First, cite the author, separated by a comma from the title, which is cited second. If the work does not have an author, the citation would be the same except that the first item cited is the title. The number immediately following the title is the specific page number. If referring to the book generally, do not cite the page number. In the parentheses, cite the edition and then the year. No edition is cited if the book is the first edition or if there is only one edition.

When a book has an editor or a translator, he or she is also added to the citation. The name of the editor or translator is placed in the parentheses before the specific edition, or before the year if no edition is required, followed by “ed[s].” or “trans.” respectively. If there are more than two editors or translators, only the name of the first is cited:

Chris C. Chin, Capital Gains Treatment of Retirement Benefits 49 (Kenneth Kole et al. eds., 2d ed. 2000).

Editors and authors also may be institutional, in which case the name of the institution, abbreviated if applicable, is substituted for the name that would otherwise appear in the applicable place. If the institution is a subpart of a larger institution, the subpart is placed first, followed by a comma and then the name of the overall body. When several publishers have published a book, the publisher is also added between the editor or translator, if any, and the edition, if any:

Chris C. Chin, Capital Gains Treatment of Retirement Benefits 49 (Kenneth Kole trans., Penguin Books, 2d ed. 2000).

Finally, if the book appears in a supplement to a book or in a pocket part, “supp.” is added between the edition and the year.

vii. Unpublished Materials

When materials are unpublished, cite the authority by author, title or description, page number[s] referenced, the most precise date which can be ascertained and, if possible, information as to where the material may be found:

Carlos C. Chintz, Capital Gains Treatment of Retirement Benefits (2000) (unpublished manuscript, on file with author).

Citations to in-person or telephonic interviews start with the title and institutional affiliation of the interviewed individual and, if in person, the place of the interview. Finally, in parentheses, after the full cite, cite the exact date of the interview. Speeches and addresses are cited in a similar fashion. If citing to a source which is to be published, place “forthcoming” in the parentheses immediately before the date.

viii. Electronic Databases

Electronic Media and other non-print sources include Westlaw and Lexis, the Internet, CD-ROMs, microform, films, broadcasts, and noncommercial videotapes and audio recordings. If specific materials appear in Westlaw or Lexis, cite to these databases, irrespective of whether one accessed the database through the proprietary software or the Internet.

Internet citations may be used as a parallel cite when an unpublished opinion can be found on the Internet or when one merely wishes to cite information found on the Internet:

The date on the Internet cite, either creation, last modification, or last visited, may be placed in parentheses after the citation if the author believes it would assist the reader. Where using a parallel citation, follow the normal cite by a comma, then “available at” and then the Internet cite.

E-mails are cited without e-mail addresses:

E-mail from Martha Velltran, Assistant Manager,
International Property, to Edward Roca, Buyer,
Ladies Wear (May 27, 1975, 05:55:02 EST) (on file with author).

The first portion of the cite is self-explanatory. In parentheses, place the date of the message followed by the exact time and the location where the e-mail can be found.

When citing a CD-ROM, cite the material as it would otherwise be cited. Following the citation, state the publisher of the CD-ROM, the version searched, and the date of the material or the date of the version searched, in parentheses.
Microform is another commonly cited source. Do not indicate that the source is from Microform unless it would otherwise be difficult to attain the material. If so, cite the source as it would otherwise be cited. Next, separated by a comma, place “microformed on,” the name of the service provider, and any unique identifiers or codes utilized by the publisher, if available. The name of the publisher appears at the end of the citation in parentheses.

Cite films by their titles in italics. Television and Radio Broadcasts are cited in italics. They are both cited by exact date if possible. In parenthesis after the title, place the company or network that produced or aired the broadcast, followed by the date. Unpublished editions would be cited in the same fashion except place “(on file with author),” for example, directly after the parenthetical containing the producer and date.

Commercial recordings are cited by artist and title in italics, followed by the recording company and date of release if available:

Chris Lenard, Sun under the Moon (MCA Records 1987).

If a particular song or musical work is being referred to, cite it directly after the author, in italics. If the recording is not commercial, it is placed in ordinary type and one should indicate where the source may be obtained.

ix. Introductory Signals

There are several introductory signals that are regularly used in legal citations, each of which means something different.

If directly quoting the proposition, identifying the full name of the source, or identifying an authority referred to in the text, no introductory signal is used. Otherwise, an introductory signal is required. “See” is used if one is paraphrasing or if an authority directly supports a proposition in the text. “E.g.,” is used, preceded by one of the other introductory signals, when citing other authority which also supports the proportion in the text but that is not particularly on point or particularly helpful, such as cases from other jurisdictions other than that which is controlling. “Accord” is used when two or more cases state and support the same proposition, but the cite being cited it not the one actually utilized. “See also” is utilized to indicate additional sources which are in addition to the main source or which add additional support to the textual proposition. In such instances, a brief explanation of the proposition in the case, in parentheses after the cite, is encouraged. “Cf.” is used where the additional source is different from the main proposition but sufficiently analogous to the main point as to lend support to the main proposition.

To direct the reader to compare two or more cites, place “Compare,” at the beginning of the citation, followed by all relevant cites, put together with an “and” preceded by a comma. Between the two sets of citations, place “, with” followed by the second set of relevant cites to be compared with the material that appears before the “with.” The cite is cited as it otherwise would be.

“Contra” is used when the cited authority states a proposition opposite to the cited authority. “But see” is used where the authority supports a proposition contrary to the main proposition, but not directly opposed. “But cf.” similar to cf., is used where the cited authority supports a proposition analogous to the opposite of the main proposition.

Finally, “see generally” is used where a citation is used as generally helpful background information. A parenthetical is recommended.

B. LEGALISTIC STYLE

i. Quotations

Generally, quotations are used in the same manner as they would be in any literary work. They should appear exactly as they do in the original. Quotations of forty nine words or less should be placed in quotes; quotations of fifty words or more should be set off from the rest of the text – indented on both sides, appearing as a separate block in the middle of the paragraph. In set off quotes, the citation should appear on the next line after the block quote, left justified and on an independent line. When the author adds additional words or letters, brackets “[]” are placed at the beginning and end of the added words or letters. If letters are omitted as part of a word, they are similarly replaced by brackets.

ii. Abbreviations

There is a special listing of abbreviations contained in the Bluebook which exhaustively sets forth all words that should be abbreviated in case names and other legal documents. Setting forth all such terms here is beyond the scope of this article, but any term not listed therein should not be abbreviated. Words in the text of an article should not be abbreviated.

iii. Font and Formatting

The only three typefaces used in legal materials are ordinary roman type, italics and underline. Commas, semicolons and other punctuations are italicized or otherwise formatted only if they are inside the italicized material; punctuation that follows the material is not similarly formatted.

Additionally, emphasize words by italics. Foreign phrases are italicized as well. Similarly, equations and hypothetical parties indicated by letters are italicized.

iv. Capitalization

In headings and titles, all words are capitalized except articles, and conjunctions, and prepositions of four or fewer words. Nouns, people, groups, and constitutions are capitalized only if referring to specific entities, people, groups, and constitutions. Also, the word “court” is capitalized only if one is giving the full name of the court or if one is referring to the United States Supreme Court. The word “federal” is capitalized when the word it modifies is capitalized; the word “judge” or “justice” is capitalized if it refers to a particular judge or justice; and the word “state” is capitalized only when used as part of the full title of a state or if the modified word is capitalized.

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III. Statutory and Administrative Materials

A. FLORIDA CONSTITUTION; CONSTITUTIONS OF OTHER STATES AND THE FEDERAL CONSTITUTION

The Florida Constitution is cited:

Art V, 3(b)(3), Fla. Const.3

The first portion before the comma represents the article of the constitution which one is citing. The second portion represents the section within the Article. Finally, the last portion stands for the state constitution which is being cited, here, the Florida Constitution.

The Florida appellate rules do not set forth model citations for the constitutions of other states or for the Federal Constitution. Accordingly, the Bluebook provides the proper citation methods. The constitutions from other states are cited as follows, using New York and Texas as examples:

N.Y. Const. art. IV, 7;

Tex. Const. art. II, 1.

First, cite the particular constitution, then the article, and then the section.

The Federal Constitution is cited:

U.S. Const. art. I, 6, cl. 1;4 or

U.S. Const. amend. XIV, 2; or

U.S. Const. pmble.

The citation always begins with U.S. Const. then lists the article or amendment. Subsections within each amendment or article are then cited, with being used for sections and cl. for clauses. Note that the preamble, “pmbl.,” has no article, section, or clause subsections.

B. FLORIDA STATUTES

The Florida Statutes are cited in the following manner:

857.102, Fla. Stat. (1998).⁵

The Florida Statutes are not republished every year. Supplements are published on a yearly basis to update any statutes that have been amended, enacted, or repealed. When the Florida Statute Supplement contains a version of the statute, that version always should be utilized. In such instances, the supplement should be cited:

857.102, Fla. Stat. (Supp. 1998).

In citing the several Florida Rules, which will be discussed shortly, or other statutory materials which do not appear in the official reporter, one may cite the annotated versions of the statutes. The annotated version of the statutes, which contains cases that have cited the referenced rule or statute, are cited:

857.102, Fla. Stat. Ann. (1998).⁶

The supplements to these rules are cited in the same manner as the supplements for the Florida Statutes.⁷

C. LAWS OF FLORIDA

Generally, the laws of Florida are not cited unless the particular statute does not appear in the general statutes or one wishes to make particular reference to the enactment of the statute. If one is citing the Florida Laws, which are the form in which the statutory materials appear as originally enacted by the Legislature, all such general laws after 1956 are cited:

Ch. 74-177, 4, at 489, Laws of Fla. (1997).

Before 1957, the Florida laws would be cited:

Ch. 22000, Laws of Fla. (1942).

First, set forth the chapter in which the law appears in the Laws of Florida Reporter. Then, state the particular section referred to and the page at which that section appears. Finally, list the reporter, which is the Laws of Florida. Before 1957, the particular laws were not broken up into sections. Merely use the number which corresponds to the entire law.

D. FLORIDA RULES OF PROCEDURE

Florida has twenty-four different rules of procedure. Each one has its own citation form. Generally, state that it is a Florida rule, “Fla.” Next, state the abbreviation for the particular rule. Finally, state the exact rule number. The various rules of procedure are cited:

Florida Rules of Civil Procedure: Fla. R. Civ. P. 1.280.

Florida Rules of Judicial Administration: Fla. R. Jud. Admin. 2.038.

Florida Rules of Criminal Procedure: Fla. R. Crim. P. 3.864.

Florida Rules of Workers’ Compensation: Fla. R. Work. Comp. P. 4.112.

Florida Probate Rules: Fla. Prob. R. 5.130.

Florida Rules of Traffic Court: Fla. R. Traf. Ct. 6.163.

Florida Small Claims Rules: Fla. Sm. Cl. R. 7.060.

Florida Rules of Juvenile Procedure: Fla. R. Juv. P. 8.060.

Florida Rules of Appellate Procedure: Fla. R. App. P. 9.200.

Florida Rules of Mediation: Fla. R. Med. 10.020.

Florida Rules of Arbitration: Fla. R. Arb. 11.020.

Florida Family Law Rules of Procedure: Fla. Fam. L. R. P. 12.030.

Florida Judicial Code of Conduct: Fla. Code Jud. Conduct, Canon 4B.

Rules Regulating the Florida Bar: R. Regulating Fla. Bar 4-1.20.

Florida Bar Foundation Charter: Fla. Bar Found. Charter, art. 3.5.

Florida Board of Bar Examiners Rules: Fla. Bd. Bar Exam. R. II.

Florida Standard Jury Instructions – Civil: Fla. Std. Jury Instr. (Civ.) 6.3(b).

Florida Bar Admission Rules: Fla. Bar Admiss. R., art. II.

Florida Judicial Qualification Commission Rules: Fla. Jud. Qual. Comm’n R. 8.

Florida Bar Foundation By-Laws: Fla. Bar Found. By-Laws, art. 2.17(b).

Florida Standards Imposing Lawyer Sanctions: Fla. Stds. Imposing Law. Sancs. 9.2.

Florida Bar Integrity Rules: Fla. Bar Integr. R., art X, rule 11.08.

Florida Standard Jury Instructions – Criminal: Fla. Std. Jury Insr. (Crim.). [crime]

Florida Bar Code of Professional Responsibility: Fla. Bar Code Prof. Resp. D. R. 1-201(B).

Florida Standards Imposing Lawyers Sanctions – Drug Cases: Fla. Stds. Imposing Law. Sancs. (Drug Cases) 2.

E. ATTORNEY GENERAL OPINIONS

Opinions of the Attorney General of Florida are cited simply. State that it is the opinion of the attorney general, the number given to the particular opinion, and the year of the opinion:

Op. Att’y Gen. Fla. 73-178 (1973).

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IV. Bluebook Default Rules

A. MISCELLANEOUS

i. Legislative Materials

Besides statutes, there is a plethora of other materials which are produced by the legislative branches of government. One such category is Bills and Resolutions. Generally, enacted Bills should be cited as the analogous statute. Unenacted Bills are cited as:

S. 513, 110th Cong. 1 (2000); or

H.R. 342, 105th Cong. (1998); or

Protection From Personal Intrusion Act, H.R. 2445, 104th Cong. 1 (1993).

First, state the name of the bill, if relevant, then the abbreviated name of the house, the number of the bill, the number of the Congress that enacted it, the section cited, and the year of the publication. Resolutions are cited in the same manner:

H.R. Res. 567, 103rd Cong. (1996); or

S. Res. 632, 102nd Cong. (1995).

Enacted federal bills would be cited in this fashion only for the purpose of pointing out or emphasizing the legislative history of the bill. If any one piece of data is missing, cite the next piece of information that is available.

If state bills or resolutions are being cited, state the abbreviated name of the legislative body, the number of the bill, the number of the legislative body or session, and the number or designation of the legislative session. In parenthesis, place the abbreviated name of the state and the year in which the bill or resolution was enacted. The cite would appear:

H.R. 138, 143d Gen. Assem., 424th Reg. Sess. (Ga. 1999).

When citing Congressional Hearings or Hearings before federal committees, include the title of the hearing as it appears on the cover, the bill number, the subcommittee name, the committee name, the number of the Congress, the page number of the material, and the year of the publication. If a particular piece of information is missing, simply go to the next information available. The cite would appear:

Tax Credit for Cost of Providing Commuter Benefits to Employees: Hearing on H.D. 534 on H.R. 3443 and H.R. 4356 Before the H. Comm. on Ways and Means, 105th Cong. 48-49 (1999) (statement of Mark Nelson, Member, House Comm. on Ways and Means).

If a hearing before the state legislature is cited, add the number of the legislative session between the name of the hearing and the Legislative Session, set off by commas.

Citation to numbered federal reports should include the abbreviation for the entity issuing the report, the number of the Congress connected by a hyphen to the number of the report, the page on which the material begins and the year of the publication. The citation to a house and senate report is cited:

H.R. Rep. No. 98-233, pt. 2, at 67 (1954);

S. Rep. No. 89-9, at 27 (1958).

All numbered federal documents are cited in an analogous manner except that the abbreviation Doc. is added between the legislative body abbreviation, “H.R. Rep.” or “S. Rep.” and the “No.” If a document has a title and/or author, they should be indicated in front of the citations which appear above, with the author appearing first, separated by a comma from the title.

If the document is not numbered, the citation would appear:

Staff of S. Comm. on the Judiciary, 97th Cong.,
Report on the Federal Arbitration Law 39 (1987).

ii. Administrative and Executive Materials

This portion includes several different materials including rules and regulations, administrative adjudications, arbitrations, and advisory opinions, among others. Final rules and regulations promulgated by the executive branch normally appear in the Code of Federal Regulations:

FCC Television Airwaves Services and Regulations, 48 C.F.R. 38.48 (1993).

First, cite the title of the rule or regulation. The first number in the citation represents the CFR title number. The second number represents the particular section cited. Finally, always include the year of the publication. If the rule or regulation does not appear in the CFR it will most likely be contained in the Federal Register:

FCC Television Airwaves Services and Regulations, 60 Fed. Reg. 68,380, 68,382 (Oct. 25, 2000) (to be codified at 48 C.F.R. 38.48).

The first number represents the volume of the federal register, and the second two numbers represent the pages on which the rule or regulation appears. Proposed rules and regulations merely contain the word “proposed” in front of the date, inside the parentheses. Executive orders, presidential proclamations and executive reorganization plans generally appear in CFR, the United States Code or the Annotated Code. If the document appears therein, those are the preferred publications. In the alternate, cite the Federal Register if therein.

Generally, administrative adjudications and arbitrations are cited in the same manner as cases. The only differences are that in administrative adjudications, only the name of the first private party or subject matter is used and the abbreviations used are those for the applicable tribunal as opposed to the court reporters. Citations to arbitrations, however, utilize both adverse parties (if given) or are otherwise cited in the same manner as administrative decisions. Additionally, the arbitrator’s name should be given parenthetically after the date: (Kruger, Arb.).

Advisory opinions issued by the United States Attorney General are cited:

42 Op. Att’y Gen. 238 (1989).

The first number is the volume in which the opinion appears. The second portion is the type of opinion, including the governmental agency that issued the opinion. The third number represents the page number on which the opinion appears and finally the year. If the opinion has a title, include the title before the citation, separated by a comma.

iii. Foreign conventions and treaties

Citation to international treaties and conventions is becoming increasingly popular as the world moves towards globalization. In citing treaties and conventions, the general citation form appears:

North American Free Trade Agreement, U.S.-Mex., May 27, 1988, 35 U.S.T. 1988.

The name of the agreement is given first in all instances, followed by the date of signing. Next, where there are two or fewer parties, as is the hypothetical example given, state the abbreviations for the two countries and finally the Treaty or Convention source, with the volume and page number. If there are more than two parties to the treaty or convention, the citation appears:

North American Free Trade Agreement, May 27 1988, 73 Stat. 3387, 35 U.N.T.S. 1988.

Leave out the particular countries and add the additional identification for the particular section of the reporter where such treaties and conventions appear. If there is a particular subdivision to which one wishes to cite, it should appear immediately after the date. The reporters in which these documents will appear, in which the United States is a party, include U.S.T. or Stat.; T.I.A.S. or T.S. or E.A.S; Senate Treaty Documents or Senate Executive Documents; the Department of State Dispatch or Department of State Press Releases. If it does not appear in one of these sources, any source may be cited. Where the United States is not a party, the official reporters of the foreign entities are preferred.

iv. Periodicals and Newspapers

The citation form for newspapers and periodicals is:

Eddy C. Chin, Capital Gains in the Presidential Race, Nov. 17 1999, at 45a.

First, indicate the author and the title. Next, list the date of the article, and finally, the page on which the article appears. The article title is italicized.

v. Law Reviews

Law Reviews are cited similarly to newspapers and periodicals:

Carlos C. Chintz, Capital Gains Treatment of Retirement Benefits, 49 U.S. Tax J. Law 978, 999 (2000).

First, state the author, followed by the title of the article. The title is italicized. Next, cite the volume in which the article appears and the Law Review abbreviation. Third, state the page on which the article appears and if applicable, the particular page which is cited. Finally, place the year of publication in parenthesis.

vi. Books

Books also are cited similar to newspapers, periodicals, and law reviews. Preliminarily, the citation generally appears:

Chris C. Chin, Capital Gains Treatment of Retirement Benefits 49 (2d ed. 2000).

First, cite the author, separated by a comma from the title, which is cited second. If the work does not have an author, the citation would be the same except that the first item cited is the title. The number immediately following the title is the specific page number. If referring to the book generally, do not cite the page number. In the parentheses, cite the edition and then the year. No edition is cited if the book is the first edition or if there is only one edition.

When a book has an editor or a translator, he or she is also added to the citation. The name of the editor or translator is placed in the parentheses before the specific edition, or before the year if no edition is required, followed by “ed[s].” or “trans.” respectively. If there are more than two editors or translators, only the name of the first is cited:

Chris C. Chin, Capital Gains Treatment of Retirement Benefits 49 (Kenneth Kole et al. eds., 2d ed. 2000).

Editors and authors also may be institutional, in which case the name of the institution, abbreviated if applicable, is substituted for the name that would otherwise appear in the applicable place. If the institution is a subpart of a larger institution, the subpart is placed first, followed by a comma and then the name of the overall body. When several publishers have published a book, the publisher is also added between the editor or translator, if any, and the edition, if any:

Chris C. Chin, Capital Gains Treatment of Retirement Benefits 49 (Kenneth Kole trans., Penguin Books, 2d ed. 2000).

Finally, if the book appears in a supplement to a book or in a pocket part, “supp.” is added between the edition and the year.

vii. Unpublished Materials

When materials are unpublished, cite the authority by author, title or description, page number[s] referenced, the most precise date which can be ascertained and, if possible, information as to where the material may be found:

Carlos C. Chintz, Capital Gains Treatment of Retirement Benefits (2000) (unpublished manuscript, on file with author).

Citations to in-person or telephonic interviews start with the title and institutional affiliation of the interviewed individual and, if in person, the place of the interview. Finally, in parentheses, after the full cite, cite the exact date of the interview. Speeches and addresses are cited in a similar fashion. If citing to a source which is to be published, place “forthcoming” in the parentheses immediately before the date.

viii. Electronic Databases

Electronic Media and other non-print sources include Westlaw and Lexis, the Internet, CD-ROMs, microform, films, broadcasts, and noncommercial videotapes and audio recordings. If specific materials appear in Westlaw or Lexis, cite to these databases, irrespective of whether one accessed the database through the proprietary software or the Internet.

Internet citations may be used as a parallel cite when an unpublished opinion can be found on the Internet or when one merely wishes to cite information found on the Internet:

The date on the Internet cite, either creation, last modification, or last visited, may be placed in parentheses after the citation if the author believes it would assist the reader. Where using a parallel citation, follow the normal cite by a comma, then “available at” and then the Internet cite.

E-mails are cited without e-mail addresses:

E-mail from Martha Velltran, Assistant Manager,
International Property, to Edward Roca, Buyer,
Ladies Wear (May 27, 1975, 05:55:02 EST) (on file with author).

The first portion of the cite is self-explanatory. In parentheses, place the date of the message followed by the exact time and the location where the e-mail can be found.

When citing a CD-ROM, cite the material as it would otherwise be cited. Following the citation, state the publisher of the CD-ROM, the version searched, and the date of the material or the date of the version searched, in parentheses.
Microform is another commonly cited source. Do not indicate that the source is from Microform unless it would otherwise be difficult to attain the material. If so, cite the source as it would otherwise be cited. Next, separated by a comma, place “microformed on,” the name of the service provider, and any unique identifiers or codes utilized by the publisher, if available. The name of the publisher appears at the end of the citation in parentheses.

Cite films by their titles in italics. Television and Radio Broadcasts are cited in italics. They are both cited by exact date if possible. In parenthesis after the title, place the company or network that produced or aired the broadcast, followed by the date. Unpublished editions would be cited in the same fashion except place “(on file with author),” for example, directly after the parenthetical containing the producer and date.

Commercial recordings are cited by artist and title in italics, followed by the recording company and date of release if available:

Chris Lenard, Sun under the Moon (MCA Records 1987).

If a particular song or musical work is being referred to, cite it directly after the author, in italics. If the recording is not commercial, it is placed in ordinary type and one should indicate where the source may be obtained.

ix. Introductory Signals

There are several introductory signals that are regularly used in legal citations, each of which means something different.

If directly quoting the proposition, identifying the full name of the source, or identifying an authority referred to in the text, no introductory signal is used. Otherwise, an introductory signal is required. “See” is used if one is paraphrasing or if an authority directly supports a proposition in the text. “E.g.,” is used, preceded by one of the other introductory signals, when citing other authority which also supports the proportion in the text but that is not particularly on point or particularly helpful, such as cases from other jurisdictions other than that which is controlling. “Accord” is used when two or more cases state and support the same proposition, but the cite being cited it not the one actually utilized. “See also” is utilized to indicate additional sources which are in addition to the main source or which add additional support to the textual proposition. In such instances, a brief explanation of the proposition in the case, in parentheses after the cite, is encouraged. “Cf.” is used where the additional source is different from the main proposition but sufficiently analogous to the main point as to lend support to the main proposition.

To direct the reader to compare two or more cites, place “Compare,” at the beginning of the citation, followed by all relevant cites, put together with an “and” preceded by a comma. Between the two sets of citations, place “, with” followed by the second set of relevant cites to be compared with the material that appears before the “with.” The cite is cited as it otherwise would be.

“Contra” is used when the cited authority states a proposition opposite to the cited authority. “But see” is used where the authority supports a proposition contrary to the main proposition, but not directly opposed. “But cf.” similar to cf., is used where the cited authority supports a proposition analogous to the opposite of the main proposition.

Finally, “see generally” is used where a citation is used as generally helpful background information. A parenthetical is recommended.

B. LEGALISTIC STYLE

i. Quotations

Generally, quotations are used in the same manner as they would be in any literary work. They should appear exactly as they do in the original. Quotations of forty nine words or less should be placed in quotes; quotations of fifty words or more should be set off from the rest of the text – indented on both sides, appearing as a separate block in the middle of the paragraph. In set off quotes, the citation should appear on the next line after the block quote, left justified and on an independent line. When the author adds additional words or letters, brackets “[]” are placed at the beginning and end of the added words or letters. If letters are omitted as part of a word, they are similarly replaced by brackets.

ii. Abbreviations

There is a special listing of abbreviations contained in the Bluebook which exhaustively sets forth all words that should be abbreviated in case names and other legal documents. Setting forth all such terms here is beyond the scope of this article, but any term not listed therein should not be abbreviated. Words in the text of an article should not be abbreviated.

iii. Font and Formatting

The only three typefaces used in legal materials are ordinary roman type, italics and underline. Commas, semicolons and other punctuations are italicized or otherwise formatted only if they are inside the italicized material; punctuation that follows the material is not similarly formatted.

Additionally, emphasize words by italics. Foreign phrases are italicized as well. Similarly, equations and hypothetical parties indicated by letters are italicized.

iv. Capitalization

In headings and titles, all words are capitalized except articles, and conjunctions, and prepositions of four or fewer words. Nouns, people, groups, and constitutions are capitalized only if referring to specific entities, people, groups, and constitutions. Also, the word “court” is capitalized only if one is giving the full name of the court or if one is referring to the United States Supreme Court. The word “federal” is capitalized when the word it modifies is capitalized; the word “judge” or “justice” is capitalized if it refers to a particular judge or justice; and the word “state” is capitalized only when used as part of the full title of a state or if the modified word is capitalized.

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Footnotes:

¹ This is the rule in all instances except where one is writing a law review article. In law review articles, the Bluebook, which will be covered shortly, is the primary authority in the proper citation form and local rules of citation have no applicability. Throughout, we will review slight differences that may arise in the context of law review articles.

² In the context of law review articles, no reference is made to the particular district. The citation would appear: Jones v. Smith, 721 So. 2d 1350 (Fla. Dist. Ct. App. 2000).

³ Law Review articles would cite the Florida constitution as follows:
Fla. Const. art. V, 3(b)(3).
All state constitutions would be cited in this manner in law review articles.

⁴ In law review articles, the U.S. Const. demarcation appears in small caps font:
U.S. Const. art. I, 6, cl. 1.

⁵ In law review format, the Florida Statutes are cited:
Fla. Stat. ch. 857.102 (1998).
The supplement would be cited as
Fla. Stat. ch. 857.102 (Supp. 1998).

⁶ The annotated version should not be used in law reviews unless the source does not appear in the official version of the statutes. The annotated version of the statute is cited:
Fla. Stat. Ann. ch. 857.102 (1999).

Similarly, the rules would be cited as the rules and not as the statutory version thereof.

⁷ There are particular rules to follow for each state in the Bluebook. Setting forth the proper citation form for each state is beyond the scope of this article. However, certain general rules can be followed. Since the Bluebook sets forth the proper citation form for these statutes, the citation form will be more similar to the citation form for Florida statutes in law review articles than those set forth by the Florida Appellate Rules. One commences with the particular state’s abbreviation, e.g. N.Y., Tex., Ohio. Additionally, if the state has different statutory compilations for different areas of the law, business corporations, family, and administrative law for example, one would next cite the abbreviations for these statutory compilations, e.g. Bus. Corp., Fam., Admin. Many states, such as Florida, do not have such compilations and merely have one general compilation. Next, depending on whether the state calls its statutes “statutes” or “code,” one cites it either as Stat. or Code. Finally, if the statutes have a particular publisher besides the state, one places the publisher inside parentheses before the current year of the statute and, if no such publisher exists, then one merely places the year of the statute in parentheses.

Reviewed fall 2020.

Government-in-the-Sunshine Manual

To assist the public and governmental agencies in understanding the requirements and exemptions to Florida’s open government laws, the Attorney General’s Office compiles a comprehensive guide known as the Government-in-the-Sunshine manual. The manual is published each year at no taxpayer expense by the First Amendment Foundation in Tallahassee.

An Open Government FAQ is also available on the Florida Attorney General’s website.

Governmental Access and Internet Resources

By Linda Carol; updated by Nadia B. Ahmad

Florida law granting open access to governmental information is essentially “access upon demand.” The journalist’s challenge, though, is to locate reliable and accurate information in an efficient manner. Developing sufficient working knowledge of governmental entities, statutes and rules, procedures that overlay the particular subject matter, and an awareness of interplay between various entities that together control the outcome of each matter presents further challenges. Without the journalists understanding the nuances of law and government, the public will receive stories that overlook vital analysis and omit relevant details, an entirely preventable outcome because of available internet resources relating to governmental information.

This chapter seeks to maximize speedy and efficient access to Florida’s governmental bodies by listing some key websites and points of contact as a place to begin inquiry. Navigating through governmental operations and processes can seem like an overwhelming task, but a little “surfing” in advance plus posing questions to governmental staff and other members will reward a journalist with the best possible access.

A great starting place for governmental access is MyFlorida.com. This homepage offers a multitude of information portals. There are special sections addressing Florida Visitors; “Floridian” information informing residents; Government, linking to all branches of government: State, counties, municipalities, districts and boards, U.S. government links; and Business, offering specialized links. Surfing this site thoroughly will be time well-spent, and you will be amazed at the myriad resources at your fingertips.

Here is an alphabetical list of some other favorites:

• Administrative Hearings 
• All State of Florida agency websites
• Americans abroad directory
• Attorney General Opinions
• Criminal Background Checks
• Day Care Licensing
• Death and other Certificates
• Decode acronyms; do reverse lookup
• Dictionary – Legal
• Driver License and History Records
• Electronic Frontier Foundation
• Embassy – U.S.
• Findlaw – Comprehensive Legal Website
• Florida Administrative Code
• Florida Commission on Ethics
• Florida Department of State, Division of Corporations records search
• Florida House/Senate Bills – Statutes
• Florida Law Online 
• Florida Law Weekly
• Florida League of Cities
• Florida Missing Children Info. Clearinghouse
• Florida Newspapers 
• Florida Supreme Court, lower courts 
• Florida Water Management Districts
• Freedom of Information Act (FOIA)
• Internet Legal Research Group
• Legal Citation
• Lobbyist Registration & Expenditure Records
• Merriam-Webster Collegiate Dictionary
• Municipal Code Corp.
• Online dictionaries
• Public Service Commission
• Regional Planning Councils
• Sexual Offender and Predator Database
• U.S. Code 
• U.S. Congressional/Library of Congress
• U.S. Court of Appeals, 11th Circuit (Alabama, Florida and Georgia)
• U.S. Department of Labor/Bureau of Labor Statistics
• U.S. Government Information
• U.S. House of Representatives
• U.S. Senate
• U.S. Supreme Court
• U.S. Supreme Court Court decisions

One of the most exciting websites is Florida Department of State, Division of Library and Information Services. You can revisit Florida history at the State photo archives with thousands of images that may be viewed and used to accompany your journalistic efforts.

Online Sunshine is the portal to the Florida Legislature, Senators and Representatives. The website includes information about both houses and contacts to all the legislators, bills that are current or were previously filed, enacted statutes, the Florida Constitution, and lobbying. If you would like further information or updates, call the Clerk of the House of Representatives at 850-488-1157, or the Secretary of the Senate at 850-487-5270.

The Florida State Courts website is an excellent starting point for Florida-specific legal research; federal, state and local government links; professional associations; and other general and miscellaneous resources. The Florida courts are structured with the Florida Supreme Court as the highest court in the state, with five District Courts of Appeal under the Florida Supreme Court, Judicial Circuit Courts below that are each responsible for several counties, and 67 corresponding County Courts.

Updated August 2020

Invasion of Privacy and the Media: The Right ‘To Be Let Alone’

by John A. Bussian, Paul J. Levine, and B.J. Patrick Cross

Introduction

Categories of Privacy Violations

1. Intrusion upon Seclusion
2. Appropriation of Name or Likeness
3. Publication of Private Facts
4. False Light Publicity

Conclusion

Introduction

One man’s gossip may be another man’s news but distinguishing between the two is often the key in determining whether the press is guilty of “invasion of privacy.”

Whether an article or broadcast is newsworthy, whether the information was gathered in an objectionable fashion, whether truthful information is nonetheless highly offensive — all are considerations in weighing individuals’ claims against the news media. Invasion of privacy is a tort, a civil wrong, which can lead to jury trials and potential claims for compensatory and punitive damages. It also places judges in the unfamiliar and uncomfortable role as “editors” of last resort.

The right of an individual to be free from invasion of privacy can be expressed in several different ways. Sometimes it is called the right “to be let alone.” [Cooley, Torts, 29 (2d ed. 1888)]. Often it is seen as a geographical area, “a kind of space that a man may carry with him into his bedroom or into the street.” [M. Konvitz, Privacy and the Law: A Philosophical Prelude, 31 Law and Contemporary Problems, 272, 279-80 (1966)].

Invasion of privacy is a relatively recent addition to American law. Rather than evolving from the English common law, as did libel, invasion of privacy can be traced directly to an influential article by Samuel D. Warren and Louis D. Brandeis, later to be a Supreme Court Justice [Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)]. They argued for the creation of a private remedy — a lawsuit — to vindicate privacy rights. Writing before the era of electronic eavesdropping, telephoto lenses, and other modern technology, Warren and Brandeis prophesied that “mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the housetops.’” [Id.] Not surprisingly, American courts today do not look kindly upon the media in these cases. However, the media’s exposure to liability can be minimized through a grounding in privacy law.

A two-step process determines whether the press is liable for invasion of a person’s privacy:

1. Has a civil wrong been committed amounting to an invasion of privacy— that is, has the newsgathering or publishing process violated certain legal principles which protect the individual?
2. Even if there is a technical invasion of privacy, is the media “privileged” under the First Amendment? Just as in libel cases, there may be a sort of ‘constitutional excuse’ granting immunity for some articles or broadcasts which otherwise might lead to damage awards.

It is possible to define four different, though overlapping, forms of invasion of privacy:

1. intrusion upon a person’s seclusion or solitude;
2. appropriation of a person’s name or likeness;
3. public disclosures of embarrassing private facts; and
4. publicity which places a person in a false light.

There are few ironclad rules in the law, but it is still possible to guard against the risk of unnecessary litigation in each of the four privacy areas.

A. INTRUSION UPON SECLUSION

• The Home — A person’s home gets the highest protection from the courts. Entering a house or apartment without permission of the occupant or, in some circumstances, the police, can be an unlawful intrusion.
• Photographs and Tape Recording — Taking photographs of a person or his property in a private place may be an invasion of privacy. Tape recording a person without his consent may invite damage awards, and, in Florida, also constitutes a crime. [Sec. 934.03(1) (a), Fla. Stat. (2019)].

B. APPROPRIATION

• Advertising — The unauthorized use of a person’s name or photograph in an advertisement is the surest way to invite trouble in this area. In Florida, a statute authorizes punitive damage awards for commercial misappropriation. [Sec. 540.08, Fla. Stat. (2019)].
• Property Rights — If someone is selling admission to a performance, it may be an invasion of privacy for the press to ‘give it away’ with unauthorized broadcasts or photographs.

C. PRIVATE FACTS

• Personal Matters — Details about a private person’s sexual relationships, the contents of personal letters, facts about an individual’s hygiene, or other intensely personal matters are off limits to the news media unless events make those details “newsworthy.”
• Newsworthiness — Even truthful accounts are actionable if they contain highly offensive details not of legitimate concern to the public.

C. FALSE LIGHT PUBLICITY

• Fabrication — Inventing quotes or fictionalizing actual events can lead to liability if a person is portrayed in a false light before the public.
• Photographs out of Context — Using file photos or film to illustrate a story can imply falsely that a person is involved in a scandalous event.

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Categories of Privacy Violations

A. INTRUSION UPON SECLUSION

Invasion of privacy by intrusion is defined as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person. [Restatement (Second) of Torts, Section 652B (1977).]

This section discusses invasion of privacy by intrusion, especially as it pertains to the broadcast media and news photographers, by raising certain questions that should be asked in analyzing potential liability for unreasonable intrusion. The section also suggests certain standards of conduct to be followed by reporters and photographers to avoid liability.

The ‘intrusion’ variety of invasion of privacy is related to the common law tort of trespass. The gist of the wrongful act is a physical intrusion into a place where the reporter has no lawful right to be, i.e., peering into windows, tape recording conversations of others without consent, or reproducing private documents without consent. Sometimes the intrusion is not physical, but is accomplished by electronic devices or telephoto lenses. Generally, a reporter or photographer is acting lawfully when in a public area. Yet, this is subject to exceptions too, depending on the offensiveness of the intrusion. See id. for illustration. A reporter’s liability for intrusion does not depend on the subsequent publication of the information gathered.

In order to determine whether particular conduct falls within this definition, it is useful to ask a number of questions:

Was the Document, Recording or Photograph Obtained Illegally Through Affirmative Conduct by the Reporter or Photographer?

Under the First Amendment, the media has the right to gather news from any source by lawful means. [See Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978).] The First Amendment does not protect those who commit torts and crimes in the name of newsgathering. In Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971), claims of illegal or unethical entry were made against a magazine by a journeyman plumber engaged in the supposed practice of healing with clay, minerals, and herbs. Using the ruse of seeking the entrance to his office within his home, two magazine reporters secretly photographed and recorded the healer’s examination of one of them. In upholding a judgment for damages in favor of the healer, the Ninth Circuit affirmed the existence of a sphere of reasonable privacy expectations, stating that there is no First Amendment interest in protecting the news media from their own calculated misdeeds. Although the issue had not been decided squarely in California, the Ninth Circuit had “little difficulty in concluding that clandestine photography of the Plaintiff in his den and the recordation and transmission of his conversation without his consent resulting in emotional distress warrants recovery for invasion of privacy in California.” [Id. at 248.]

Two factors seemed to guide the federal appeals court in ruling that the reporters were guilty of an unlawful intrusion: (a) the activities all took place in Dietemann’s home, an area traditionally deserving the greatest privacy protection; and (b) the reporters gained entry to the home by subterfuge, i.e., posing as patients.  In a more recent case with similar facts, Prime Time Live investigated reports that an eye clinic was performing unnecessary procedures. [Desnick v. Capital Cities/ABC, 851 F. Supp. 303 (N.D. Ill. 1994)].  The complaint alleged that the reporters promised not to engage in “surveillance ambush journalism,” but the defendants hired “undercover” patients to visit the clinic with concealed audio and video recorders. The plaintiff sued for trespass, intrusion, fraud, breach of contract, and (in an unrelated matter) defamation. The court dismissed each of the invasion of privacy theories, leaving only the breach of contract (for breaking the no-ambush promise) and defamation claims.

In Food Lion Inc. V. Capital Cities/ABC Inc., 27 Med. L. Rptr. 2409 (4th Cir. 1999), the plaintiff attempted to disguise an invasion of privacy claim as state law fraud, duty of loyalty, and trespass claims. The U.S. Court of Appeals for the Fourth Circuit reversed the trial court judgment that ABC committed fraud and unfair trade practices and that misrepresentation of a resume alone is not grounds for a jury finding of trespass. However, the Court did affirm the jury finding that defendants trespassed against the plaintiff for newsgathering on the job, when the ABC employees were said to have been hired to preserve Food Lion’s confidences. Finally, the court affirmed the trial court’s refusal to allow Food Lion to recover damages that essentially flowed from a telecast whose truth was not challenged by Food Lion in the litigation.

Ordinarily, reporters or photographers are liable for intrusion only through their own affirmative acts. Therefore, two well-known columnists who published details of documents that were removed improperly from a senator’s office were held not liable to the senator for intrusion when they had no role in obtaining the documents. [Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969).] Similarly, in Bilney v. The Evening Star, 406 A.2d 652, 43 Md. App. 560 (1979), a newspaper was held free of liability for publishing the dismal academic records of six University of Maryland basketball players, where the reporters did not participate in illegally obtaining the players’ transcripts.  However, the court left unanswered the question whether two student reporters could be held liable for actually obtaining the transcripts for which they were paid $125 by the Washington Star.

Although less than 20 years ago media liability for publishing materials unlawfully obtained by others was an open question, the Supreme Court has since provided some protection from liability in the case of Bartnicki v. Vopper, 532 U.S. 514 (2001). There, a radio commentator broadcast an illegally obtained recording of two individuals discussing ongoing labor negotiations and arguably threatening physical harm to some of the parties involved in the ongoing negotiations.  However, because a third-party—rather than the radio commentator himself—obtained the recording, and because the recording addressed a matter of public concern, the Supreme Court held that the First Amendment protected the radio commentator from being held liable for broadcasting the unlawfully obtained material.  The Supreme Court made clear that its decision was intended to be “narrow” and, therefore, the Court’s holding should not be construed to extend beyond cases presenting similar facts.

In attempting to predict whether newsgathering efforts are likely to pass muster, it should be remembered that the majority of courts adhere to the view that the First Amendment does not confer a right of access to news sources not available to the public generally. [See Houchins.] A photographer with WTMJ-TV in Milwaukee found this out the hard way upon his refusal to leave a crime scene cordoned off to the public.  The photographer’s claim, following his arrest on disorderly conduct charges for his refusal to leave the scene, that the First Amendment gave him a right of access to the scene was unavailing.  [Oak Creek v. Ah King, 436 N.W.2d 295 (Wis. 1989).]

Going even further than Oak Creek, the Second Circuit Court of Appeals, in dicta, censured both the government and media for their actions in Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995). Treasury Agents agreed to be accompanied by a camera crew from CBS’s “Street Stories” in the agents’ execution of a search warrant. In fact, the agents asked the crew to film certain footage.  The Second Circuit noted CBS’ compliance with the requests and called the actions of both government and media ‘excessive.’  With the increased use of ‘ride along’ investigations, this case points out the importance that the media maintain its independence from the government not only to minimize liability but also to safeguard its status as a neutral reporter.

Has the Newsgatherer Violated a ‘Sphere of  Privacy’ from Which the Plaintiff Reasonably Expected the Press To Be Excluded?

The federal court decisions in Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969) and Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) arguably have established a federal right of privacy paralleling state privacy torts but distinct from the federal constitutional privacy right emanating from the fundamental choice concept. [See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).] Under this theory, the newsgatherer is liable when he invades a ‘sphere of privacy’ — such as a person’s home as in Dietemann — which the person reasonably believes to be off limits to the news media.

The “sphere” is determined from the plaintiff’s viewpoint.  In Dietemann, the court found that the covert activity of the Life reporters in photographing and recording the plaintiff within the confines of his personal residence supported the jury’s verdict against the magazine. Conversely, the Eighth Circuit has held that a reporter for a radio station who overheard a commotion when a municipal judge was arrested and jailed for DWI, and who thereafter recorded the commotion made by the judge in the jail, could not be held liable for intrusion.  [Holman v. Central Ark. Broadcasting Co., 610 F.2d 542 (8th Cir. 1979).] In granting summary judgment, the court found that the judge’s boisterous complaints in the jail were not made with the expectation of privacy or confidentiality.  Although the judge’s lawyer requested that the reporter not record any statements made by the judge, the appellate court adopted the trial court’s findings that the judge knew, as he yelled and cursed at the top of his voice, that the newsman had recording equipment.

In contrast, a federal prisoner sued NBC for invasion of privacy for filming him without his permission while he was alone in the prisoners’ exercise cage, wearing only gym shorts. In Huskey v. National Broadcasting Co., 632 F. Supp. 1282 (N.D. Ill. 1986), the prisoner alleged his expectation that the only persons able to see him would be those persons to whom he might be exposed as a necessary result of his incarceration. The prisoner purportedly told a prison guard that he did not want to be filmed and did not consent to being filmed.  NBC countered by arguing that filming a person in a publicly visible area “cannot give rise to an intrusion claim.” The district court disagreed and refused to dismiss the prisoner’s lawsuit because the court was unable to find precedent for NBC’s position that no area of a prison falls within a prisoner’s protected privacy sphere and that its actions were not “highly offensive” as a matter of law. The court found those to be factual issues that could not be decided at the pleading stage of the case.

Another view on the privacy sphere of incarcerated individuals was provided in Jenkins v. Winchester Star, 8 Med. L. Rep. (BNA) 1403 (W.D. Va. 1981). The Winchester Star published a photograph of the plaintiff sleeping in the local jail without his knowledge or permission, but purportedly with the permission of the chief jailer. The plaintiff sought relief for violation of his federal constitutional right of privacy under 42 U.S.C. Sec. 1983. Although the court granted the defendant’s motion for summary judgment, it stated that prison inmates retain a limited privacy right which is protected by the U.S. Constitution. The court found, however, that publication of the prisoner’s picture was not violative of any federal constitutional right of privacy, although it “might” state a valid claim for libel and invasion of privacy in a state court suit. [Id. at 1404. Cf. Houchins v. KQED, Inc., 438 U.S. 1, 5 (1978).]

And in a decision that could curb newsgathering, law enforcement officials were found to violate a search victim s Fourth Amendment rights, as well as his or her privacy rights under 42 U.S.C. Sec. 1983 by inviting the media to ‘ride along’ in conducting the search of a home. Wilson v. Layne, 526 U.S. 603 (1999). It is worth noting that a ride along journalist could be exposed to similar liability were a search victim to allege that the police and the journalist acted jointly or conspired in planning an illegal search.

Is the Conduct Plainly in the Public View, and the Area Generally Outside the Privacy Sphere?

In Jacova v. Southern Radio & Television Co., 83 So.2d 34 (Fla. 1955), plaintiff was an innocent customer filmed during a gambling raid on a cigar store. In plaintiff’s right of privacy action, the court granted summary judgment to the television station, finding a qualified privilege to broadcast the name or photograph of a person who became an “actor” in a newsworthy event:

Even though the plaintiff’s role of “actor” in an event having news value was not of his own volition — having been thrust upon him by the investigating officers by mistake — the fact remains that he was in a public place and present at a scene where news was in the making. [Id. at 40.]

Similarly, in Bisbee v. Conover, 452 A.2d 689 (N.J. App. 1982), the court granted summary judgment in favor of a newspaper that printed an article regarding the sale of a local historic house accompanied by a photograph of the house from the street. The court found that the photograph was taken from a public thoroughfare and merely showed a view available to any bystander. [See also Wehling v. CBS, 721 F.2d 506 (5th Cir. 1983), television broadcast showing residence of plaintiff who allegedly defrauded federal government did not invade plaintiff’s privacy because it “provided the public with nothing more than could have been seen from a public street.”]

A St. Petersburg television station was sued after it broadcast a videotape depicting the plaintiff being arrested while dressed in underwear and a T-shirt. The court in Spradley v. Sutton, 9 Med. L. Rep. (BNA) 1481 (Fla. 6th Cir. Ct. 1982), found that the embarrassment the plaintiff may have suffered as a result of the broadcast was inadequate to defeat the right of the press to cover the arrest, which was an event of legitimate public concern. Further, the court held that because plaintiff was visible to the public in his underwear when arrested, “[t]here could be no liability for giving further publicity to what [plaintiff] himself … left to public view.” [Id. at 1483.]

The more difficult cases under the “plain view” doctrine involve situations that skirt the boundaries of the private facts privacy lawsuit and the cause of action for intentional infliction of emotional distress. In Cape Publications v. Bridges, 423 So. 2d 426 (Fla. 5th DCA 1982), rev. denied, 431 So. 2d 988 (Fla.), cert. denied, 464 U.S. 893 (1983), plaintiff had been held hostage by her husband and had been forced to disrobe in an effort to prevent her escape. The plaintiff’s husband shot himself and the frightened wife rushed from the building wearing only a dishtowel clutched against the front of her body. Emphasizing the newsworthiness of the event and stating that at some point the public interest in obtaining information predominates over an individual’s right of privacy, the court reversed a jury verdict in favor of the plaintiff.  Since the case turned on the legitimate public interest of the event, rather than on the fact that Mrs. Bridges may have been outside the privacy sphere when the photo was taken, it probably fits more neatly into the “private facts”’ category of privacy litigation in which newsworthiness is the classic defense. In disposing of the Bridges case, the court declared:

It is settled law in Florida that the right of privacy does not necessarily protect a person against the publication of his name or photograph in connection with the dissemination of legitimate news item or other matters of public interest …

Although publication of the photograph, which won industry awards, could be considered by some to be in bad taste, the law in Florida seems settled that where one becomes an actor in an occurrence of public interest, it is not an invasion of her right to privacy to publish her photograph with an account of such occurrence. [Id. at 427.]

Another case in point was decided by the California Supreme Court in June 1998. A passenger injured in a motor vehicle accident was found to have no claim for invasion of privacy for television news footage of the passenger pinned in her vehicle at the accident scene. However, the court found that the passenger had a justifiable expectation of privacy inside the air-rescue helicopter that transported her to the hospital and that she had a viable invasion of privacy claim for the broadcast of footage taken in the helicopter. [Shulman v. Group W Prods., Inc., 955 P. 2d 469 (Cal. 1998).]

Strictly speaking, the newsworthiness of the information sought is not a defense in an intrusion case. For example, if there has been a highly offensive intrusion upon seclusion, the defendant is liable even if the information gathered is newsworthy. In close cases, however, the newsworthiness of the subject matter may lead judges to hold that no intrusion has been committed.

Is the Newsgatherer Guilty of Overzealous Surveillance or Shadowing — Conduct That May Amount to an Exception to the Rule That Conduct Clearly Within the Public View Is Not Actionable?

In the famous Galella v. Onassis litigation — ‘Galella I,’ 353 F. Supp. 196 (S.D.N.Y. 1972), rev’d in part, 487 F.2d 986 (2d Cir. 1973) and ‘Galella II,’ 533 F. Supp. 1076 (S.D.N.Y. 1982), a freelance photographer sued Jackie Onassis for false imprisonment. She, in turn, counterclaimed for intrusion. The photographer’s motion to dismiss the counterclaim was denied on the basis that the photographer had hounded Mrs. Onassis relentlessly by photographing her at point-blank range on sidewalks, tennis courts, and riding trails and by hiding in cloakrooms and bribing employees of businesses patronized by Mrs. Onassis.

The plaintiff twice was found in contempt of a restraining order and a permanent injunction was issued prohibiting him from photographing Mrs. Onassis or the Kennedy children from less than 50 yards and prohibiting him from approaching within 100 yards of their New York apartment. The court in ‘Galella II,’ noted that “systematic public surveillance” of another could be construed as a plan to intrude on another’s privacy. Stating that crimes and torts committed in newsgathering are not protected by the First Amendment, the court found that the plaintiff’s constant surveillance and intrusive presence were unwarranted and unreasonable when weighed against the de minimis public importance of the daily activities of Mrs. Onassis. [‘Gallela II,’ 533 F. Supp. at 1105 (quoting ‘Galella I,’ at 487 F. 2d at 995-96).]

A reporter’s trespassing upon private property, without more, will not trigger potential liability under the Onassis case. In its 1993 decision in Howell v. New York Post Co., 612 N.E.2d 699 (N.Y. 1993), aff’d in part, 619 N.E.2d 650 (N.Y. 1993), the New York Court of Appeals held that a reporter’s trespassing to photograph the plaintiff, who was outdoors, from a distance did not remotely approach the standard of Onassis-type liability. However, in April 1996, a federal trial judge in Pennsylvania applied Florida privacy law (because the underlying events occurred there) to Onassis-like facts and entered an injunction against two “Inside Edition” journalists. Citing the Florida Supreme Court’s decision in Cason v. Baskin, 20 So. 2d 243 (Fla. 1944), the federal judge found that the defendants were probably liable on the plaintiff’s intrusion claim — justifying injunctive relief — for hounding business-managing family members. [See Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996).]

Has the Defendant Violated Florida’s “Interception” Statute, Which Prohibits  Eavesdropping, Taping, and Bugging Without Consent?

In Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977), the Florida Supreme Court rejected a television station’s claim that newsgathering should be accorded special First Amendment protection when the station challenged Sec. 934.03(d), Fla. Stat., which prohibits interception of certain communications. The statute provides criminal penalties for unlawful electronic eavesdropping, which includes the tape recording of telephone conversations without all speakers’ consent and the surreptitious recording of face-to- face conversations. In upholding the constitutionality of the interception statute, the court stated that the “First Amendment is not a license to trespass or to intrude by electronic means into the sanctity of another’s home or office.” [Id. at 727.] Likewise, the fact that the person subjected to the intrusion reasonably is suspected of committing a crime is no justification for the intrusion. [Id.]

The Shevin court rejected the argument that the statute infringed First Amendment “newsgathering rights,” stating that “[n]ews gathering is an integral part of news dissemination, but hidden mechanical contrivances are not indispensable tools of news gathering.” [Id.]

In contrast to Shevin, in Gardner v. The Bradenton Herald, 413 So. 2d 10 (Fla. 1982), the Florida Supreme Court found a related statute, Sec. 934.091, Fla. Stat., to be an unconstitutional prior restraint. That statute provided criminal penalties for those who prematurely published or broadcast the identity of any person notified pursuant to statute that a wire or oral communication to which he was a party had been intercepted. The same argument can be made for the unconstitutionality of Sec. 934.03(c), Fla. Stat., as it relates to the publication by a media defendant of the contents of an intercepted oral or wire communication which it legally obtains.

In Cassidy v. ABC, 377 N.E.2d 126 (Ill. App. Ct. 1978), the court considered an intrusion claim against a broadcaster for eavesdropping in violation of an Illinois statute. The plaintiff was an undercover police officer who was filmed making an arrest of a prostitute in her working quarters. Affirming a summary judgment for the broadcaster, the court held that no cause of action for intrusion exists against one who gathers news concerning the discharge of public duties by a public official.

Has the Plaintiff Consented to the “Intrusion?”

Photographs are often the subject of privacy litigation. In Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976), the trial court granted summary judgment in favor of the Florida Times Union for publishing a photograph of the “silhouette” of a teenager’s body lying on the floor after a fatal fire. The teenager’s parents sued the newspaper for invasion of privacy. The court noted that the fire marshal had invited the news media onto the premises and had requested specifically that the photographer take a picture of the silhouette.

The Florida Supreme Court, finding that implied consent can arise from custom, usage, or conduct, and that the news media customarily enter upon private property where a disaster has occurred, held that the trial court properly granted summary judgment.  The court also noted that there was no one at the scene who objected to the photographer’s entry. [Id. at 918. Cf. Wood v. Fort Dodge Messenger, 13 Media L. Rep. (BNA) 1614 (Iowa Dist. Ct. 1986) (no invasion of privacy where television stations and newspapers entered plaintiffs’ farm to photograph 167 dead cattle with express and implied consent of sheriff and farm’s caretaker).]

The Florida Supreme Court did not decide Fletcher on the ground that the press had a constitutional right to be present at the disaster scene. Indeed, the United States Supreme Court has declared that “[n]ewsmen have no constitutional right to the scenes of crime or disaster when the general public is excluded.” [Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972).]

In Machleder v. Diaz, 538 F. Supp. 1364 (S.D.N.Y. 1982), aff’d in part, rev’d in part on other grounds, 801 F.2d 46 (2d Cir. 1986), CBS named the manufacturer of chemical products in a report on the dumping of chemical wastes. The cameraman stood at the front door of plaintiff’s place of business and photographed an area eight to 10 feet inside the building, which was illuminated by the camera’s lights. The cameraman also confronted one of the plaintiffs outside the building, and after being refused an interview, followed the company president back to his office where the reporter was invited inside by the president’s son. In granting summary judgment for CBS, the court noted that the president of the company was confronted in a semipublic area visible to the public and that the questioning did not amount to “hounding.” The court found that an implied consent to trespass existed since the defendants were never told to leave and even were invited into the offices by the president’s son.

The results in Fletcher and Machleder should be compared with Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So. 2d 810 (Fla. 1st DCA 1976). In Green Valley, the appellate court overturned summary judgment in favor of a media defendant that, at the request of the state attorney, trespassed on a private school’s property while the state attorney conducted a search pursuant to a warrant. The court rejected the argument that the trespass was consented to by the state attorney on the ground that a law enforcement official is not empowered to invite people to participate in intrusions. Likewise, the court rejected the broadcaster’s argument that the “common usage and custom” of the media permitted the intrusion. [See also Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995).]

In contrast to Fletcher and Machleder, however, the state attorney in Green Valley began the searches at 11:30 p.m. by rousing the headmaster and students from their beds, verbally harassing them, and ransacking the premises. [Id. at 813-14.]  Further, the media defendants in Green Valley arguably breached the peace by inserting glaring lights into dormitory rooms. It is apparent that the carefully planned search in Green Valley is inherently dissimilar to the “great disaster” situation outlined in Fletcher and is not governed by the same considerations of immediacy as Fletcher. The decisions are at least consistent from a legal standpoint, while failing to provide a bright line liability rule for reporters.

Television cameras, by their very nature, can be considered “intrusive” in a nonlegal sense, and their use often can lead to litigation. In Lal v. CBS, 551 F. Supp. 356 (E.D. Pa. 1982), aff’d, 726 F.2d 97 (3d Cir. 1984), a university professor charged with failing to maintain a house he leased to five students brought an action for intrusion. The local CBS affiliate had photographed the house without the plaintiff’s knowledge and broadcast the tape on the evening news. Although the plaintiff’s complaint sounded in trespass and libel, the factual allegations could have been drafted to set forth a claim for intrusion. Nevertheless, the court granted summary judgment in favor of the station, correctly focusing on the fact that the broadcaster had obtained permission to enter the property from plaintiff’s tenant and finding that the broadcaster could rely on the tenant’s right to give permission.

In Stafford v. Hayes, 327 So. 2d 871 (Fla. 1st DCA 1976), a lobbyist sued a Tallahassee television station after its newsman photographed the lobbyist in a bar following the evacuation of the State Capitol due to a bomb threat. In affirming summary judgment for the station, the court noted that the television crew entered the bar to record the convivial atmosphere enjoyed by the state workers after being evacuated from their offices.  Since the plaintiff was an “actor” in a newsworthy occurrence of public interest, the court held that the defendants were privileged to broadcast the videotape which included the plaintiff.

By contrast, in Le Mistral v. CBS, 61 A.D.2d 491 (N.Y. App. Div. 1978), the court upheld a jury verdict in favor of a restaurant on an intrusion claim. The CBS film crew had, in the words of the trial court, “burst into the plaintiff’s restaurant in noisy and obtrusive fashion, and following the loud commands of the reporter,” photographed the patrons dining. CBS, guilty of trespass through the admission of its own employees, took the position that it entered the restaurant in the course of newsgathering after the restaurant was cited for sanitation code violations.  The Stafford and Le Mistral cases can be distinguished in that the owner of the bar in Stafford consented to the presence of the film crew. It could be argued that the patrons in Le Mistral, as opposed to the restaurant owners, could not have maintained an action for intrusion since they had no legitimate expectation of privacy in a public restaurant.

Generally, intrusion exposure can be eliminated if the following statements are true:

• the newsgatherer neither illegally obtained the information, recordings, film, or photographs, nor acted in a “highly offensive” manner in obtaining the material;
• the subject matter is newsworthy — more specifically, it is of legitimate public interest; and
• the newsgatherer did not enter, physically or by any other means, the “privacy sphere” where the subject of the newsgathering efforts reasonably would not expect to find him; or
• even if a highly offensive intrusion otherwise would have been committed, the plaintiff or his agent consented to it.

There is a basic conflict between the newsgathering functions of the press and the privacy interests, at least in a nonlegal sense, of the subjects of inquiry. However, there are still methods by which the press can reduce its risks of litigation and liability. Such self- protective measures often can be reduced to the use of common sense and the exercise of good taste.

Robert Giles, former executive editor of the Rochester Times-Union, has written some ground rules for reporters who cover disasters and human tragedies such as those that occurred in Fletcher. Giles cautions reporters against breaking and entering in search of pictures or an interview; he advises reporters to show a sense of feeling and to make sure the survivors and relatives of victims understand that what has happened is news. He tells his reporters to be good listeners and establish a trust with those persons interviewed. Finally, he warns against the temptation of running with the pack, particularly good advice where others seem oblivious to invading privacy rights.  [Goodwin, Groping for Ethics in Journalism 223 (1983)]. These suggestions should be followed not only to avoid lawsuits, but also to improve the quality of journalism practiced by the reporter. By employing common sense and a measure of ethics, the skillful reporter will be able to acquire the same, or better, information than the reporter who is insensitive to privacy intrusion issues.

B. APPROPRIATION OF NAME OR LIKENESS

The Restatement (Second) of Torts Section 652C (1977) defines appropriation of name or likeness as follows: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”

The appropriation category of invasion of privacy prevents others from using a person’s name or identity for commercial gain. Ordinarily, the news media do not run afoul of this form of the tort. However, as the examples below show, seemingly innocuous news coverage or advertisements can lead to lawsuits.

The United States Supreme Court has had occasion to consider only one appropriation case, and that decision left the Court divided and the news media confused.  In Zacchini v. Scripps Broadcasting Co., 433 U.S. 562 (1977), the Court ruled that the First Amendment did not immunize a television station from liability for its unauthorized broadcast of a 15-second “human cannonball” performance. Hugo Zacchini performed at an Ohio county fair and refused permission to have his act filmed by a television reporter. The reporter filmed the act anyway, and it was shown on the late news along with a highly favorable voice-over description. Despite what appeared to be a free advertisement for the act, Zacchini sued, seeking $25,000 in damages. Zacchini’s theory was that the station had appropriated his professional property without consent. In allowing the case to go to a jury, the Supreme Court ruled, 5-4, that the newsworthiness of the event did not immunize the television station. “The broadcast of a film of petitioner’s entire act poses a substantial threat to the economic value of that performance,” Justice Byron White wrote for the majority. [433 U.S. at 575.]

The Zacchini decision raises more questions than it answers. What if a newspaper photographer had asked permission to take a still photograph of the act, but that request too had been denied? If the photographer took rapid sequence photos, would the newspaper be liable if it published a page of pictures showing the entire flight of the human cannonball? Rather than provide the answer, Zacchini opens a Pandora’s box of new legal problems not previously thought to exist in what Justice Lewis Powell called ‘ordinary daily news’ coverage. [See 433 U.S. at 580 (Powell, J., dissenting).]

For there to be potential liability for “appropriation,”it is generally necessary that a publication use a person’s name or identity in a profit-making enterprise. Zacchini seems to be an exception to that rule, since the broadcast was done in a purely news context. The Court’s theory was that the broadcast may have deprived Zacchini of profits from his own performance. The usual appropriation case occurs in the unauthorized use of photos in advertisements.  In football player Joe Namath’s suit against Sports Illustrated, Namath v. Sports Illustrated, 352 N.E.2d 584 (N.Y. 1976), the magazine used a Super Bowl photo of the quarterback to advertise subscriptions in other Time Inc. publications. The photo originally had been used with a sports story and was a legitimate “news” picture. The advertisement did not imply that Joe Namath endorsed Sports Illustrated. Such a use would have been a clear misappropriation of his name.  Rather, the advertisement merely implied that readers can see Namath’s photo and read articles about him in the magazine. The court considered that to be a proper use of the photo.

Generally, a legitimate news use of a person’s identity will insulate the publication from liability for appropriation. The Court of Appeals for the Sixth Circuit in Lusby v. Cincinnati Monthly Publishing Corp., 17 Media L. Rep. (BNA) 1962 (6th Cir. 1990), stated that “something more than incidental publication or likeness” is necessary to support an “appropriation” privacy claim. In particular, the “defendant must have appropriated something of value beyond the value each person places on his own name or likeness.” The Lusby court found the plaintiff’s contention that a photograph of him with six wedding dolls (in connection with an article about litigation) was not an invasion of privacy by appropriation of name or likeness. In Nelson v. Maine Times, 373 A.2d 1221, 2 Media L. Rep. (BNA) 2011 (Me. 1977), a newspaper published a photo of a Penobscot Indian boy in a pastoral setting. The newspaper did not receive permission to photograph the child, whose mother sued for invasion of privacy. However, the photograph was not of direct commercial benefit to the newspaper. Accordingly, the Maine Supreme Judicial Court found there was no actionable invasion of privacy. [Id. at 2013-14.] The same result was obtained in Brooks v. ABC, 737 F. Supp. 431 (N.D. Ohio 1990), where an investigative TV report was deemed similar to a newspaper or magazine article on newsworthy matters and, therefore, was not actionable.

Even illustrations used to accompany articles can lead to liability. In Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978), Playgirl magazine published a drawing of a nude black man seated in the corner of a boxing ring. The man clearly resembled former heavyweight champion Muhammad Ali. Playgirl was found liable for appropriating Ali’s likeness without his consent. The court held: “[Ali] has established a commercially valuable proprietary interest in his likeness and reputation, analogous to the goodwill accumulated in the name of successful business entity.” [Id. at 729.]

Although the case does not discuss the issue, it seems clear that had the portrait shown Ali wearing boxing trunks, he scarcely would be able to complain of appropriation. As a public figure, his likeness and name obviously could be used with legitimate news and feature articles. However, there was no legitimate news value to a depiction of Ali’s nudity, and to the extent that the nude portrait would offend many persons, this case probably qualifies as a hybrid of appropriation and publication of private facts.

Slogans and other identity features also have been accorded protection from this form of invasion of privacy. When a Michigan corporation marketed “Here’s Johnny” portable toilets, talk show host Johnny Carson sued for unfair competition, trademark infringement, invasion of privacy, and right to publicity. [Carson v. Here’s Johnny, 698 F.2d 831 (6th Cir. 1983).] The court dismissed the copyright and trademark claims on the ground that Carson failed to establish a likelihood of confusion that Carson was connected with the product. However, the court upheld the claims for exploitation of Carson’s slogan on the ground that the corporation had appropriated Carson’s identity, notwithstanding the fact that neither his name nor likeness was used. To the same effect is the July 1992 decision by the Ninth Circuit Court of Appeals in White v. Samsung Electronics America, Inc., 20 Media L. Rep. (BNA) 1457 (9th Cir. 1992. Although the Ninth Circuit affirmed the dismissal of the “Wheel of Fortune” hostess’s statutory misappropriation claim (California Civil Code Section 3344(d)), the court ruled that a jury should decide her common law claim for misappropriating her identity.  Despite a robot appearing in the challenged advertisement, instead of an actual likeness of Vanna White, the court allowed that part of her lawsuit to proceed to trial.

A celebrity’s attempt to control the use of her name or likeness was the issue in Cher v. Forum International, 692 F.2d 634 (9th Cir.), cert. denied, 462 U.S. 1120 (1982). Cher gave an interview with the understanding that it would be used for a specific publication. However, at her request, the article was not printed in that publication. The author instead sold the interview to a different publication, which used her name and picture in its own advertising. Cher sued, claiming misappropriation of her right to publicity.

The Ninth Circuit upheld a judgment against the publication, finding that it knowingly exploited the interview by publishing advertisements implying that the entertainer had endorsed the publication.

The Ninth Circuit found differently, however, in a case brought by singer/songwriter Wood Newton for the use of the name, “Wood Newton” in the television show, “Evening Shade.” Newton v. Thomason, 22 F.3d 1455 (9th Cir. 1994). The court found that (i) Newton had consented to the use of the name, despite his refusal to sign a consent agreement, and (ii) the use did not establish the commercialism required for a misappropriation claim.

In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), the Ninth Circuit reversed the trial court’s dismissal of actress- singer Bette Midler’s suit against an automobile company and its advertising agency for imitating Midler’s voice in a commercial. Unsuccessful in its attempt to hire Midler herself to sing in the commercial, the advertising agency hired a former backup singer for Midler to imitate Midler’s singing voice. The song performed appeared on a Midler album. While the trial court described the defendants’ conduct as that “of the average thief,” it held that the imitation of Midler’s voice did not amount to a violation of the federal copyright law. However, the Ninth Circuit found that what Midler did have was a California common law property right in not having her distinctive voice deliberately imitated, and that entitled her to bring an appropriation-based “invasion of privacy” claim to trial. [Id. at 462.]

Cases also have arisen from the discussion of one person in the biography or fictionalized biography of another. In Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994), the Fifth Circuit Court of Appeals rejected the misappropriation complaint by a former undercover narcotics officer — convicted of committing crimes in the course of his work — against his former spouse/colleague for her fictionalized account of her (and his) experiences. A similar claim against CBS for its dramatization in “Top Cops”of an officer’s murder was held nonactionable by the Third Circuit Court of Appeals. [Lamonaco v. CBS, Inc., 22 Media L. Rep. 1831 (3d Cir. 1994).] (In a recent blow to the media, the Third Circuit Court of Appeals held that — unlike defamation claims — a misappropriation claim survives the death of the aggrieved. McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)).

In Florida, a statute prevents using a person’s name, photograph or likeness “for purposes of trade or for any commercial or advertising purpose…” without the person’s consent. [Sec. 540.08, Fla. Stat. (2019).] The statute exists in addition to the common law tort of appropriation and provides for an award of punitive damages. However, the statute contains exceptions for “any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes.” [Sec. 540.08(4)(a), Fla. Stat. (2019).]  In one of the few reported Florida cases interpreting the statute, a newspaper was found not to have violated the appropriation statute when it reported that a woman arrested in Texas was the “Florida Citrus Queen” some 23 years before. [See Westphal v. Lakeland Ledger Publishing Co., 361 So. 2d 841 (Fla. 2d DCA 1978).]

In another, Miller v. Twentieth Century Fox Int’l Corp., 29 Media L. Rep. 1087 (M.D. Fla. 2001), the Court found the defendant-television producer not to be liable for airing footage of the plaintiffs in front of a Daytona Beach motorcycle club that allegedly made the plaintiffs guilty of criminal conduct “by association” with the club’s leader. There was no evidence in either case that the publication or broadcast was commercially motivated, and both involved reports that were communicated in the public interest. Those cases should be compared, however, with Weinstein Design Grp., Inc. v. Fielder, 884 So. 2d 990, 993 (Fla. 4th DCA2004), where a magazine article about an interior designer, in which the designer mentioned the name of a former professional baseball player for whom the designer was designing a house, did not meet the “bona fide news report” exception.  Although the court noted that it was “a close call,” it held that the exception did not necessarily apply because the article could be construed as an advertisement for the designer and his services.

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C. PUBLICATION OF PRIVATE FACTS

The Restatement (Second) of Torts Section 652D (1977) provides that:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

Just as in the “intrusion” and “appropriation” areas, the news media can be held liable for damages for truthful publication. In the “private facts” area, the offending article or broadcast exposes to public view certain highly offensive matters that are not considered newsworthy. In order for an offended plaintiff to prevail, he must prove both that the publication was “highly offensive to a reasonable person” and that the matters were not “of legitimate concern to the public.” [Id.] The latter requirement gives the news media what might be called the “newsworthiness defense.” However, the legitimate concern of the public in a matter is not presumed by the matter’s publication. Thus, a plaintiff may prove that an article is lacking in newsworthiness despite its publication.

To a certain extent, all categories of invasion of privacy overlap, either with each other, or in the case of false light publicity, with the separate tort of defamation. Publication of private facts often is the final step in an invasion of privacy by intrusion. If ‘”intrusion upon seclusion” is seen as a physical act in which a person’s personal sphere is invaded, the tort may be completed at that point, and the plaintiff is entitled to a damage award even in the absence of publication. The plaintiff may have suffered no damages, however, unless publication is made, bringing to light whatever embarrassing facts were photographed, recorded, or learned.

By contrast, a “publication of private facts” case is not complete until, as the phrase suggests, the private facts are exposed to the public. A “private facts” case can be defended successfully by showing either that the material was not highly offensive or that it was newsworthy. Stated another way, even the highly offensive treatment of a subject will not render the news media liable for damages if it can be established that the material was newsworthy.

One of the first “private fact” cases occurred when a former child prodigy sued the New Yorker magazine for an article describing him as a middle-aged eccentric who had failed to live up to his youthful success. As a boy, William Sidis had been a mathematical genius and had graduated from Harvard University at the age of 16.

Under the title, ‘Where Are They Now?’, the New Yorker reported that Sidis was an obscure clerk who lived alone and collected old streetcar transfers. Charging that these were private facts, Sidis sued for invasion of privacy.

In Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir. 1940), cert. denied, 311 U.S. 711 (1940), the Second Circuit found the article to be both newsworthy and lacking in highly offensive details. The case is important for two propositions. The first is that the passage of time does not necessarily deprive the public of legitimate interest in a newsworthy person or event. Although it had been 27 years since newspapers wrote about the child prodigy, a report on what he had become was not considered mere “popular curiosity.” The court observed:

And even if Sidis had loathed public attention at that time, we think his uncommon achievements and personality would have made the attention permissible. Since then, Sidis has cloaked himself in obscurity, but his subsequent history, containing as it did the answer to the question of whether or not he had fulfilled his early promise, was still a matter of public concern. The article in The New Yorker sketched the life of an unusual personality, and it possessed considerable popular news interest. [Id. at 809.]

The second important point made in Sidis is that there is no liability unless the personal, embarrassing facts are “highly offensive.” Sidis clearly was embarrassed by the story, which essentially portrayed him as a failure, an eccentric and a recluse. Yet, details of his personal habits likely would not have offended most persons in society:

Revelations may be so intimate and so unwarranted in view of the victim’s position as to outrage the community’s notions of decency. But when focused upon public characters, truthful comments upon dress, speech, habits, and the ordinary aspects of personality will usually not transgress this line. Regrettably or not, the misfortunes and frailties of neighbors and “public figures” are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day. [Id.]

In Wasser v. San Diego Union, 191 Cal. App. 3d 1455 (1987), rev. denied, 236 Cal. Rptr. 772 (1987), Wasser, a high school teacher, sued the newspaper for invasion of privacy for printing a story about a lawsuit between the teacher and his principal concerning an allegedly libelous teacher evaluation written about Wasser by the principal. In the article about the lawsuit between teacher and principal, the newspaper published the fact of Wasser’s earlier acquittal of a murder charge involving his estranged wife. Since his acquittal, Wasser both had instituted and defended lawsuits related to the death of his wife. Various newspapers had reported several of Wasser’s lawsuits following his acquittal of the murder charge.

The court granted summary judgment for the newspaper on Wasser’s invasion of privacy claim. Wasser had conceded the truthfulness of the news article but contended that the statement concerning his acquittal was no longer newsworthy. The court found that the newspaper had not violated Wasser’s privacy because the material contained in the newspaper article was already public, having been printed in seven news articles over eleven years. Moreover, the court found that the passage of time since the acquittal had not ended Wasser’s status as a public personage for the purpose of the murder story partly because Wasser’s series of lawsuits, which all bore some relationship to the death of his wife, had maintained the public interest in him. The court noted the legitimate function of the press in reminding the public of past history and former public figures, which can be matters of present public interest.

While there are few clear rules, there are some guidelines as to which “private facts” normally should not be subjected to public view. The following list contains several trouble areas which give rise to potential liability:

• sexual relations;
• family quarrels;
• humiliating illnesses;
• intimate, personal letters;
• details of home life;
• photographs taken in private places;
• photographs stolen from a person’s home; and
• contents of income tax returns.

[Restatement (Second) of Torts Section 652D, comments (b), (g) (1977).]

Likewise, it can be stated generally that matters of public record are not considered private facts and may be published freely:

• a person’s birth date;
• the fact that a person is married;
• military record;
• admission to the practice of any trade or
  profession;
• occupational licenses;
• pleadings filed in a lawsuit;
• arrest reports;
• police raids;
• suicides;
• divorces;
• accidents;
• fires;
• natural disasters; and
• homicide victims.

[Id.]

THE FIRST AMENDMENT AND PRIVATE FACTS

Generally, the “private facts” category of invasion of privacy concerns truthful articles or broadcasts. If the embarrassing, private facts were published falsely, a libel action or a “false light” privacy case would be the appropriate legal vehicle.  The news media have taken the position that there can be no civil liability for publishing truthful information, no matter how embarrassing or damaging it might be to the individual. However, the Supreme Court so far has refused to extend First Amendment protection to immunize the press from lawsuits based on truthful, but embarrassing, publication. [Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975); see also Taylor v. KTVB, Inc., 525 P.2d 984 (Idaho 1974); Cape Publications v. Hitchner, 549 So. 2d 1374 (Fla. 1989), appeal dismissed, 493 U.S. 929 (1989).] Should the Court do so, this category of invasion of privacy would be all but eliminated.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Supreme Court had the opportunity to declare that all truthful publications were protected constitutionally from damage actions. In that case, an invasion of privacy suit was brought by the father of a girl who had been raped and murdered. A television reporter learned the victim’s name from a court indictment that was open to public inspection. The plaintiff sought a jury trial for damages on the ground that his “zone of privacy” was invaded by the allegedly offensive broadcast. The television station and various news organizations that filed amicus curiae briefs sought a ruling that all truthful accounts are protected constitutionally.

Rather than creating blanket immunity for truthful accounts, the Court ruled only that the First Amendment does not permit a damage action for invasion of privacy when the truthful report was obtained from open judicial records:

We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self- censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public.  At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. [Id. at 494-95.]

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the United States Supreme Court struck down a Massachusetts statute that prohibited press access to rape trials of minor victims. The Court’s opinion suggests that a claim under the private facts branch of privacy might lie, under certain circumstances, for publication of the names of victims of sex crimes.

Various courts presented with privacy claims based on information from other than public records nonetheless have relied on Cox Broadcasting to establish constitutional protection if the publication contains accurate information relating to public figures or is otherwise a matter of public concern. This “public interest” privilege has been found to prevent a suit brought by a private person if there is a “logical nexus” between that person’s conduct and the matter of legitimate public interest. [See Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980); see also Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981).] The “public interest” privilege is far from absolute, however, and courts will evaluate critically the “logical nexus” requirement. [See, e.g., Vassiliades v. Garfinckel’s Brooks Bros., 492 A.2d 580 (D.C. App. 1985).]

While judging the connection between the complaining individual and the matter of legitimate public interest is fact-dependent, the analysis has been designed to give wide berth to free press rights. In one of the most closely watched privacy suits over the past several decades, Shulman v. Group W Productions, Inc., 955 P. 2d 469 (1998), the California Supreme Court considered whether a defendant who broadcast footage of a victim’s traumatic experience and comments at an accident scene and in an emergency helicopter invaded the victim’s privacy. Emphasizing that the analysis of a claim for wrongful publication of private facts should produce predictable answers, the Court held, consistent with its view of the First Amendment, that the test for newsworthiness of private facts is whether the relevance of the disclosure is “greatly disproportionate” to a matter of legitimate public interest. And in holding that the disclosure of the plaintiff’s private, medical facts and suffering was substantially relevant to the newsworthy subject of the broadcast (the rescue and medical treatment of accident victims), the Court cited a First Amendment restriction on privacy claims worth remembering, “Liability for disclosure of private facts is limited to the extreme case, thereby providing breathing space needed by the press to properly exercise effective editorial judgment.”

Despite the difficulty of applying the public interest privilege, it offers strong constitutional protection for the news media. The Ninth Circuit has ruled that once a truthful article is deemed newsworthy, it would violate the First Amendment to return a damage award in favor of the offended plaintiff. In Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), the court gave constitutional force to the newsworthiness defense contained in the Second Restatement of Torts, which states:

In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. [Id. at 1129 (quoting Restatement (Second) of Torts Section 652D, comment h).]

The Virgil case illustrates how a seemingly innocuous feature story can lead to expensive litigation. Sports Illustrated magazine prepared a profile of Mike Virgil, an expert body surfer. At first, Virgil cooperated with the magazine.  Later, he attempted to revoke his consent to the interviews already given. The story portrayed Virgil as a showoff who, on various occasions, put out a cigarette in his mouth, dived down a flight of stairs to impress some women, purposely injured himself so he could collect unemployment compensation and go surfing, ate spiders, and bit off the cheek of a man in a gang fight.

When the case was returned by the Ninth Circuit to the trial court, Sports Illustrated won a summary judgment on the grounds that the facts were newsworthy and were not so highly offensive as to invade Virgil’s privacy. The court found the strange details of Virgil’s life neither morbid nor sensational:

In fact, they connote nearly as strong a positive image as they do a negative one. On the one hand, Mr. Virgil can be seen as a juvenile exhibitionist, but on the other hand he also comes across as the tough, aggressive maverick, an archetypal character occupying a respected place in the American consciousness. Given this ambiguity as to whether or not the facts disclosed are offensive at all, no reasonable juror could conclude that they were highly offensive. [Virgil v. Time, Inc., 424 F. Supp. 1286, 1289 (S.D. Cal. 1976).]

A more difficult question arises when a newspaper publishes the name of the victim of a sex crime and the name was gathered from sources not in public records. A jury in Jacksonville returned a large verdict against a small weekly newspaper for the truthful publication of the name of a rape victim who reported the crime to the police. The newspaper learned the woman’s name from reviewing police reports and inadvertently — and against its own newsroom policy — failed to delete the woman’s name. Although the plaintiff relied on the Florida statute barring publication of the name of a rape victim rather than traditional invasion of privacy concepts, the lawsuit still must be considered a privacy case.

The U.S. Supreme Court, in a landmark June 1989 decision that overturned the jury verdict against the newspaper, held that damages cannot be awarded against a party publishing truthful information obtained by lawful means ‘about a matter of public significance’ unless doing so serves a state interest of the highest order. [See The Florida Star v. B.J.F., 491 U.S. 524 (1989).] The Florida statute which gave rise to the lawsuit and prohibits the disclosure of a rape victim’s name, even when lawfully obtained, was found not to meet the constitutional criteria.

Public entities increasingly excuse refusal of access to public records by citing their fear of liability for disclosure of private facts within public records. In Doe v. New York City, 15 F.3d 264 (2d Cir. 1994), the Second Circuit Court of Appeals addressed the invasion of privacy claims against New York City for its announcement in a press release of the settlement of a discrimination claim — arising out of Doe’s HIV positive condition — brought by Doe. Although Doe was not named in the release, he was identifiable. Such settlements usually are a matter of public record, but the city agreed to confidentiality in Doe’s case. Overruling the district court, the Second Circuit held that an individual has a constitutional right of privacy in medical information and that, therefore, its disclosure could form the basis of an invasion of privacy cause of action.  The case was remanded for trial.

FLORIDA CASES INVOLVING PRIVATE FACTS

The Florida Supreme Court first recognized the tort of invasion of privacy in the 1944 case, Cason v. Baskin, 20 So. 2d 243 (Fla. 1944). A Florida census taker who was described in a book as an “ageless spinster” sued the author for invasion of privacy. [Id. at 247.] The court recognized the principle that public figures give up certain rights to privacy:

It is true that a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public legitimate interest in his doings, his affairs, and his character, may be said to have become a public personage, and to that extent thereby relinquishes at least a part of his right of privacy. There may be a limited scrutiny of the “private life” of any person who has achieved, or who has thrust upon him, the status of a “public figure.” [Cason v. Baskin, 30 So. 2d 635, 638 (Fla. 1947) (citations omitted).]

Invasion of privacy by publication of private facts could be accomplished, according to the Florida Supreme Court, only when ‘the community has no legitimate concern’ in those facts. [Id.; see also Doe v. Beasley Broad. Grp., Inc., 105 So. 3d 1 (Fla. 2d DCA 2012) (holding claim asserted by disc jockey’s ex-girlfriend for “disparag[ing]” her on numerous on-air broadcasts to be valid given that disc jockey allegedly disclosed private facts of relationship).] More recent Florida cases continue to recognize the existence of the newsworthiness defense to this form of invasion of privacy:

1. In a 1989 decision, the Florida Supreme Court held that a newspaper publisher could not be liable for damages for disclosing the contents of a confidential Department of Health and Rehabilitative Services report mistakenly released by the trial judge’s secretary to a reporter after the conclusion of a child-abuse trial. The report, containing allegations of child abuse that were the subject of the trial, was confidential under Sec. 827.07(15), Fla. Stat. In reversing the trial court’s finding that the contents of the report were not of legitimate public concern (a prerequisite to filing a lawsuit based on publication of “private facts”), the Florida Supreme Court found that criminal prosecutions are by their very nature ‘without question events of legitimate concern to the public’ and emphasized that the published information was obtained lawfully and legitimately in the public domain. [Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989)];
2. Florida’s Third District Court of Appeal in 1993 denied recovery to a woman who claimed that a television news broadcast invaded her privacy by revealing her name change that occurred when she got divorced. The name change was a matter of public record. [Woodard v. Sunbeam Television Corp., 616 So. 2d 501 (Fla. 3d DCA 1993). Accord Florida v. Johnson, 22 Media L. Rep. (BNA) 1058 (Fla. Palm Beach Cty. Ct. 1993) (mayor’s publication of names of persons arrested for solicitation of sexual activity — found in public record — not actionable invasion of privacy); accord Florida v. Mackie, 22 Media L. Rep. (BNA) 1060 (Fla. Palm Beach Cty. Ct. 1993) (same)];
3. It did not invade a widow’s right of privacy to publish a factual account of the murder of her husband, according to a trial court decision in Duval County in Nelson v. Globe Communication Corp., 2 Media L. Rep. (BNA) 1219 (Fla. 4th Cir. Ct. 1977);
4. A newspaper article about a drug treatment program did not invade a woman’s privacy when it published the factual statement that she had attempted to escape from the program’s custody in Stevenson v. Nottingham, 4 Media L. Rep. (BNA) 1585 (Fla. Cir. Ct. 1978), aff’d, 371 So. 2d 604 (Fla. 2d DCA 1979);
5. However, there was no newsworthiness in a newspaper advertisement stating “Wanna Hear a Sexy Telephone Voice? Call and Ask for Louise.” The listed number was the correct telephone number for one Louise Harms, who successfully maintained a privacy lawsuit against a newspaper in Harms v. Miami Daily News, Inc., 127 So. 2d 715 (Fla. 3d DCA 1961);
6. A newspaper published an article describing plaintiff’s involvement in an altercation that took place in a public office. The information for the article was gleaned from the public records. The court in El Amin v. Miami Herald, 9 Media L. Rep. (BNA) 1079 (Fla. Cir. Ct. 1983), held the publication was not actionable;
7. A witness who testified at a murder trial had no claim for invasion of privacy against writers of a song that implied her participation in the murder. While she was not a voluntary participant in the trial, she nonetheless was involved in an event of public interest, and her claim was precluded by the decision of a federal appeals court in Valentine v. CBS, 698 F.2d 430 (11th Cir. 1983); and
8. Florida appellate courts have relied upon the Cox decision. The Second District Court of Appeal denied a claim by a rape victim against a television station that broadcast her testimony. [Doe v. Sarasota- Bradenton Television, 436 So. 2d 328 (Fla. 2d DCA 1983). Accord Williams v. New York Times, 462 So. 2d 38 (Fla. 1st DCA 1984).]
9. A contract right to publish does not necessarily extinguish a plaintiff s invasion of privacy claim against the publisher. In Facchina v. Mutual Benefits Corp., 27 Med. L. Rptr. 2168 (Fla. 4th DCA 1999), the plaintiff entered into a contract with defendants that gave defendants the right to use his photograph for advertisements regarding the purchasing of life insurance policies. Plaintiff alleged that defendant published his picture in such a way that the ad to imply that he was homosexual and afflicted with AIDS. The appeals court held that “a person may have a contractual right to publish the likeness of another without breaching a contract giving him the right to publish, but may still abuse that right and publish in such a manner as to violate the subject’s personal, privacy interests.” The insurer-publisher essentially exceeded the scope of the plaintiff’s consent to appropriate his name and likeness for commercial gain in violation of 540.08 of the Florida Statutes and invaded the plaintiff s privacy by publishing private facts.
10. In a recent case that caught nationwide attention and illustrates the magnitude of potential liability for private facts publication, a Florida court held that a media distributor had a constitutional right to publish and otherwise distribute a report of a well-known professional wrestler’s extra-marital affair that included video excerpts of a sexual encounter allegedly taped without his consent. [Gawker Media, LLC v. Bollea, 129 So. 3d 1196 (Fla. 2d DCA 2014).] The wrestler sought to temporarily enjoin the publication, and although the trial court initially agreed the Florida Second District Court of Appeal reversed the injunction, holding that it was within the media distributor’s editorial discretion to publish the written report and video excerpts because they were linked to a matter of public concern. [Id. at 1202.] Yet following that appeal, the case was tried to a Tampa area jury, which returned a $130 million verdict against the defendant publisher.

But one 1991 Florida state court decision, while finding a traditional publication of private facts claim legally insufficient, offers a specter of another variety of invasion of privacy liability for publication of private facts. In Armstrong v. H & C Communications, Inc., 575 So. 2d 280 (Fla. 5th DCA 1991), the Florida Fifth District Court of Appeal used a modern-day application of the ancient “outrage” claim as a means to avoid the hurdles to a traditional publication of private facts invasion of privacy claim. The case arose from a broadcast by an Orlando area television station of a video tape of a missing child’s skull on the 6:00 news. Relatives of the missing child sued the station.  Not surprisingly, the traditional publication of private facts claim was found insufficient as a matter of law because the subject matter was deemed to be of legitimate public interest (a finding that triggers First Amendment protection of suits aimed at publication of true, but ‘private,’ facts). What makes the Fifth District’s decision anomalous is that, despite its findings that the subject matter was of legitimate public interest, the court allowed the “outrage” claim to survive by holding that proof of publication of anything that could be found by a jury to be “outrageous” (which is only one of several requirements for a publication of private facts/invasion of privacy claim) could entitle a claimant to civil damages.

“Private facts” may come into play beyond the confines of civil lawsuits based upon invasion of privacy. In an important 1988 decision, the Florida Supreme Court found that a litigant’s interest in preventing the disclosure of private facts is normally not sufficient to justify closure of judicial proceedings involving that person. A Panama City newspaper contested the closure of the divorce proceedings of Dempsey Barron, a Florida senator. The trial court, finding that there was “private” civil litigation in Florida, had closed the proceedings to the public and sealed the court file to prevent the disclosure of certain sensitive information affecting one of the parties. The intermediate appellate court reversed, ordering the court files opened to the public. In so doing, the appellate court found that the provision of the Florida Constitution precluding governmental intrusion into private lives did not create a right to private judicial proceedings. [Florida Freedom Newspapers, Inc. v. Sirmons, 508 So. 2d 462, 463 (Fla. 1st DCA 1987).] The Florida Supreme Court affirmed the decision, but noted that the Florida constitutional right to privacy could form a basis for closure under appropriate circumstances. [Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (1988).] Such circumstances include, inter alia, complying with public policy as set forth in the constitution, statutes, and case law; protecting trade secrets or a compelling governmental interest (e.g., national security, confidential informants); and avoiding injury to innocent third parties. The court further noted that “it is generally the content of the subject matter rather than the status of a party that determines whether a privacy interest exists and closure should be permitted,” and emphasized that a privacy claim may be negated if the subject matter concerns a position of “public trust” held by the individual seeking closure. [Id. at 118.]

A Florida trial court extended the Barron reasoning dangerously far in finding that the family members of murder victims have a disclosural right of privacy in even records that are public. [Florida v. Rolling, Case No. 91- 3832 CF A (Fla. 8th Cir. Ct. Jul. 27, 1994).] However, Florida’s Third District Court of Appeal squarely rejected the disclosural right in Doe v. American Lawyer Media, L.P., 639 So. 2d 1021 (Fla. 3d DCA 1994).

And in 1993, Florida’s Fourth District Court of Appeal, following the lead of the United States Supreme Court in The Florida Star, affirmed the Palm Beach County Circuit Court’s October 24, 1991 order in State v. Globe Communications Corp., 622 So. 2d 1066 (Fla. 4th DCA 1993), striking down as unconstitutional Sec. 794.03, Fla. Stat., which prohibits the publication of a rape victim’s name. Although the decision is not binding on state courts outside Palm Beach County, it is instructive. Unlike the situation in The Florida Star case, the publisher in the Globe case had no public records source for the information; it was obtained through community sources. The court held that because the information was truthful, of legitimate public interest, and was in “the public domain” at the time of publication, publishing the victim’s name could not be prohibited lawfully.

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D. FALSE LIGHT PUBLICITY

The Restatement (Second) of Torts Section 652E (1977) provides that:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if the false light in which the other was placed would be highly offensive to a reasonable person, and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Creating a false image for an individual may constitute an invasion of privacy. This is the one area of invasion of privacy where publication is not truthful. Rather, the offended person is placed in a false light through misleading descriptions, confusion of the person’s identity with another, fictionalization of actual events, or photographs taken out of context.

While libel, slander, and false light publicity each require that false statements be made or implied about an individual, a false light privacy claim has special features. First, invasion of privacy by false light publicity does not require that the individual be defamed, that is, held up to scorn and ridicule. It is enough that he is given unreasonable and highly objectionable publicity that attributes false characteristics, conduct or beliefs to him. For example, calling a liberal Democrat a “conservative Republican” may not be defamatory, but it does place the politician in a false light before the public. In addition, “false light” claimant generally need prove only nominal or minimal damages, whereas a defamation plaintiff must allege and prove special damages (e.g., mental anguish, damage to reputation). Finally, the challenged material must not be published merely to a third person, as in defamation, but publicized; that is, published to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.

In Fudge v. Penthouse, 840 F.2d 1012 (1st Cir. 1988), four elementary school students were photographed with their thumbs down in objection to being separated from their male classmates at recess because of fighting. Later, a photograph and a story headlined “Little Amazons Attack Boys” appeared in Penthouse magazine. A brief editorial comment followed the article, stating: “In the battle of the sexes, we’d certainly score this round for the girls.” In the same issue of the magazine, “amazon” was defined as “a sexually aggressive and insatiable female whose desires can only be quelled and satisfied” through the use of mechanical devices. In addition to alleging libel, plaintiffs alleged that the article presented them in a false light by implying their consent to Penthouse’s use of the photograph and story, failing to note the girls’ objection to the recess segregation, implying association with and endorsement of the magazine’s views, and implying that the girls were masculine and dominating.

Addressing plaintiffs’ false light claim that the article and photograph implied the plaintiffs’ consent to Penthouse’s use of the material and their endorsement of the magazine’s editorial views, and, therefore, an “association between the plaintiffs and Penthouse,” the First Circuit found that the photograph and article were described clearly in the magazine as having been “culled from the nation’s press,” thereby negating any inference that the magazine obtained the material from the plaintiffs. [Id. at 1019.] Further, the court noted that the magazine’s editorial that followed the news article was attributed expressly to the magazine’s editor and was in a different typeface from the body of the article, and, therefore, was not capable of bearing the implication that the plaintiffs had become associated with Penthouse by endorsing its views. [Id.]  In Braun v. Flynt, 726 F.2d 245 (5th Cir. 1984), cert. denied, 469 U.S. 883 (1984), plaintiff sued Chic, a hard-core men’s pornographic magazine, for false light invasion of privacy. Plaintiff was an amusement park employee who performed a novelty act with Ralph, the Diving Pig. The amusement park sold a postcard depicting Ralph diving toward the plaintiff, who was shown in the pool extending a bottle to the pig. Chic had obtained the consent of the amusement park’s management to use of the photograph by misrepresenting the true nature of the magazine. Plaintiff successfully contended that the ordinary reader automatically would form an unfavorable opinion about the character of a woman whose picture appeared in Chic. Even if, as Chic contended, no reader would assume the plaintiff to be unchaste or promiscuous on the basis of her picture’s publication, the court noted that the jury could have found that the publication of the picture implied the plaintiff’s consent to the publication or her approval of the opinions expressed in Chic. In affirming the liability verdict against the magazine, the court noted that either finding would support the verdict that the publication placed the plaintiff in a false light highly offensive to a reasonable person. Further, the appellate court found the trial court correct in admitting the entire magazine into evidence rather than just the photograph so that the jury could be placed in the position of the ordinary reader in evaluating whether the publication placed the plaintiff in “false light.” [Cf. Dempsey v. National Enquirer, 702 F. Supp. 927 (D. Me. 1988) (content of National Enquirer such that highly objectionable association between that publication and plaintiff would not be made automatically by ordinary reader).]

Photographs often provide the news media with problems in this area. Using generic or stock television film to illustrate crime or corruption stories can lead to lawsuits. [See Jacova v. Southern Radio & Television Co., 83 So. 2d 34 (Fla. 1955).] Newspapers and magazines that use file photos out of context also invite false light publicity litigation. [See, e.g., Fils-Aime v. Enlightenment Press, 133 Misc. 2d 559, 507 N.Y.S.2d 947 (N.Y. App. Div. 1986) (suit for invasion of privacy where newspaper article on child pornography was accompanied by old photograph of plaintiff originally used by newspaper to illustrate story on beginning of school year).]

THE FIRST AMENDMENT AND FALSE LIGHT PUBLICITY

The constitutional defense to damage actions is a comparatively recent event in First Amendment law. In 1964, the Supreme Court ruled in New York Times v. Sullivan, 376 U.S. 54 (1964) that a public official may not recover damages for a defamatory falsehood relating to his official conduct unless he proves with convincing clarity that the statement is made with actual malice. The Court defined actual malice as the knowledge that the statement is false, or the “reckless disregard” of its truth or falsity.  Later decisions expanded the defense to include libel actions brought by “public figures.” [Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Associated Press v. Walker, 388 U.S. 130 (1967).] A plurality of the Court in 1971 appeared to extend the First Amendment protection to any article or broadcast of public interest or concern, regardless of the public figure status of the plaintiff.  [Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).]

However, the expansion of First Amendment protection was short-lived. In 1974, a majority of the Court rejected Rosenbloom and held once again that the constitutional privilege applies only to cases involving defamation of public officials or public figures. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).] The Supreme Court first applied the constitutional defense to a privacy action in Time, Inc. v. Hill, 385 U.S. 374 (1967). James Hill filed a lawsuit against Life magazine for reporting that the Broadway play, “The Desperate Hours,” was a factual presentation of an incident involving the Hill family. The Hills had been held captive in their home by three escaped convicts. The play sensationalized the incident and added physical violence that had not occurred. While the article did not ridicule the family and thus was not defamatory, the article’s suggestion that the play was factual arguably placed the Hills in a false light before the public inasmuch as all of the incidents in the play did not take place. A jury awarded Hill $75,000 in damages.  The sum later was reduced to $30,000, and the Supreme Court reversed that judgment in its entirety upon the ground that the First Amendment provided a constitutional defense:

Sanctions against either innocent or negligent misstatement would represent a grave hazard of discouraging the press from exercising the constitutional guarantees.

But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function.  We held in New York Times that calculated falsehood enjoyed no immunity in the case of alleged defamation of a public official concerning his official conduct.

We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of  the application of the New York statute in cases involving private individuals.

[385 U.S. at 389-90. Accord, Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994) (rejecting false light claim of convicted former undercover narcotics agent against his former spouse/colleague’s account in the book and movie ‘Rush’). See also Lamonaco v. CBS, Inc., 21 Media L. Rep. (BNA) 2193 (D.N.J. 1993), aff’d, 27 F. 3d 557 (3d Cir. 1994) (false light claim cannot be raised by family members).]

UNDER THE FIRST AMENDMENT, NEGLIGENCE IS NOT ENOUGH

The courts have held that “a plaintiff may not avoid the strictures of the burdens of proof associated with defamation by resorting to a claim of false light invasion.” [Moldea v. New York Times, 22 F.3d 310 (D.C. Cir. 1994); accord Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).] And in some respects, the First Amendment protections against invasion of privacy claims are greater than against defamation claims.

Simple negligence or carelessness on the part of the writer will not be sufficient to hold the publication liable. Unless there is proof of reckless or knowing falsity, the publication cannot be held liable for false light invasion of privacy where the subject matter of the article is one of public interest. To this extent, therefore, the news media have more protection in a false light invasion of privacy case than they do in a defamation action. The First Amendment serves as a defense in defamation cases where the plaintiff is a public official or public figure. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).] Yet, the defense applies in privacy actions in all cases involving matters of public interest whether the plaintiff is a private or a public person.

Inasmuch as the Supreme Court recently has narrowed the category of persons considered public figures, it may be well for news media lawyers to attempt to characterize lawsuits as false light privacy cases, rather than libel lawsuits, when that is possible. Two decisions released the same day in 1979 by the Supreme Court appear to require that a person “thrust himself or his views into public controversy to influence others…in order to be considered a public figure.” In Hutchinson v. Proxmire, 443 U.S. 111 (1979), a research scientist who was well-known in his field, but was not known generally, was considered to be a private person for purposes of his libel suit against a U.S. senator. Likewise, Wolston v. Readers Digest Association, 443 U.S. 157 (1979) determined that a person involved in an espionage probe and convicted of contempt of court was not a public figure. He had not “engaged the attention of the public in an attempt to influence the resolution of the issues involved.” [Id. at 168.]

Once the constitutional privilege is found to apply, the news media defendant generally will win the case, whether for libel or invasion of privacy. A plaintiff faces an extraordinary task in proving with “convincing clarity” that the writer either knew the falsity of his statements, or recklessly disregarded the truth. While it is difficult to prove actual malice, i.e., knowing or reckless falsity, it is not impossible. The surest path to trouble in either a libel or privacy case is for a writer to invent details and events. When a reporter described the appearance of a woman he had never seen and misrepresented her family’s poverty and the conditions of her home, the Supreme Court determined that false light invasion of privacy was proven with actual malice. [See Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974).] The Court reasoned that the writer must have known of the falsity of his account because he fabricated much of the account. [Id. at 253.]

FLORIDA DOES NOT RECOGNIZE FALSE LIGHT RECOVERY OF DAMAGES

The enduring problem with the false light publicity claim is that it duplicates a defamation claim. Not surprisingly, a number of states — Georgia, Mississippi, North Carolina, and Texas to name a few — have renounced false light as a viable theory of recovery.

In 2008, the Florida Supreme Court ended the debate for Florida state courts, determining that false light publicity is “not a viable cause of action in this state[.]” [Anderson v. Gannett Co., 994 So. 2d 1048, 1051 (Fla. 2008); Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)] Prior to that decision, Florida courts had struggled with the issue. Take Gannett v. Anderson, for example.  The Pensacola News Journal suffered an $18 million jury verdict in that so-called “false light” case at the hands of a plaintiff who alleged that the publisher defamed him through the positioning of true statements in a news story. The Florida First District Court of Appeal overturned the verdict, highlighting the treatment of false light claims in other states and holding that especially where a false light claim doubles as a libel action – as it did in Gannett — libel defenses apply.  Thanks to the Florida Supreme Court’s affirming the First District’s decision, this litigation ended a reporter’s risk of being sued for false light invasion of privacy under Florida law.

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Conclusion

Just as in libel cases, a reporter’s invasion of privacy liability risk often can be minimized by adequate prepublication counseling. Even more so than with libel, potential invasion of privacy problems can be overlooked by writers and editors.  Simply being in a location claimed to be in a subject’s personal zone of privacy while gathering news or publishing a seemingly sympathetic or favorable story often can lead to an invasion of privacy action. And so it is that until newsgathering and truthful publication are immunized from liability — and that day is not near — caution is the watchword for reporters, photojournalists, and editors when covering and reporting news in the zone of personal privacy.

ABOUT THE AUTHORS

John Bussian represents the media in courts across the country from his offices in Florida and North Carolina.  A graduate of Duke University and Georgetown University Law School, he is national counsel to AIM Media, First Amendment and Legislative Counsel to the North Carolina Press Association, and serves on the Board of Directors for the 1,000+ members of America’s Newspapers.

Paul Levine graduated from the University of Miami Law School, served as counsel to numerous media interests as a partner with Morgan Lewis, and is now a nationally acclaimed author of more than 25 legal thrillers and mysteries.

Patrick Cross is a graduate of the University of North Carolina at Chapel Hill School of Law and is a practicing media and civil litigator with the Brooks Pierce firm in Raleigh, NC.

Revised June, 2020

Frequently Asked Questions about Lawyer Regulation

Media Law Resource List

Compiled by J. Scott McKee

The Grand Jury

By Gregg D. Thomas, Carol Jean LoCicero and Linda R. Norbut

I. Florida’s Grand Jury Structure
II. Secrecy and Disclosure
III. Florida’s Statewide Grand Jury System
IV. The Federal Grand Jury Structure
About the Authors
Footnotes

Both the Florida and federal judicial systems employ grand juries. Because those systems are similar, the Florida grand jury system will be discussed first. At the conclusion of this chapter, the Florida statewide grand jury and the differences present in the federal grand jury system will be noted.

Traditionally, grand juries served as a shield between unjust prosecution by the state and the individual. Grand juries serve dual functions. The grand jury’s primary role is to determine whether sufficient evidence exists to justify indicting an accused individual.¹ To make such determinations, a grand jury also serves as an investigating body with subpoena powers.² In Florida, a grand jury indictment is required only to try a person for a capital offense; i.e., one where the death penalty may be given.³ Otherwise, the state attorney has concurrent authority to file a formal accusation of the commission of a crime (an ‘information’).⁴ The information is used routinely to charge individuals in Florida. In addition to capital cases, grand juries often are utilized for controversial cases such as those involving alleged wrongdoing by public officials.

I. Florida’s Grand Jury Structure

A grand jury must consist of between 15 and 21 persons.⁵ Grand jurors are appointed for one term of court, normally five to six months of intermittent service.⁶ The concurrence of 12 grand jurors is necessary to indict an individual.⁷ Whether or not an indictment is returned, the grand jury may issue presentments or reports recording their findings.⁸ In Florida, grand juries may investigate and report on official misconduct and matters generally concerning the public welfare – even if no criminal activity is suspected.

The grand jury must be distinguished from the petit or trial jury. The petit or trial jury normally consists of six members⁹ (12 in capital cases and in cases of land condemnation).¹⁰ The trial jury is the body which determines the ultimate guilt or innocence of the accused following a trial. Unlike the trial jury, however, the grand jury simply makes a predicate determination of whether there is probable cause that a crime has been committed and that the person accused committed the crime. In contrast to the trial jury’s strict standard of guilt beyond a reasonable doubt,¹¹ this probable cause standard has been defined as “a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in the belief that the named suspect is guilty of the offense charged.”¹² In essence, the grand jury merely initiates a criminal prosecution.

In practice, the prosecuting attorney selects those cases he believes warrant prosecution. The prosecutor then determines whether to proceed by indictment or information. If the prosecutor is required to or chooses to seek an indictment, he then presents his case to a grand jury by interrogating the witnesses he has subpoenaed and presenting other evidence relevant to the alleged offense. The grand jurors themselves also may question witnesses and request additional witnesses or evidence. After that evidence is presented to the grand jury, it decides whether there is probable cause to indict the accused. The accused is not given the opportunity to present evidence in his defense or cross-examine witnesses at the grand jury phase. If the accused is subpoenaed to testify before a state grand jury, that testimony cannot be used against him at trial.

Persons appearing under subpoena before a grand jury are absolutely privileged from liability for libel and slander in conjunction with testimony given before the grand jury.¹³ Grand jury witnesses, however, are subject to conviction for the crime of perjury.¹⁴

Whether or not an indictment is returned, the grand jury subsequently may issue a report or presentment. That report will contain the grand jury’s findings and may make recommendations. Florida Statutes Section 905.28(1) (2019) provides a mechanism for redacting or suppressing presentments which name unindicted individuals:

A report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall not be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.

That provision is intended to prohibit the release of presentments until the expiration of the 15-day period (if no motion to repress is filed) or the resolution of a motion to repress occurs. The Second District Court of Appeal in Tribune v. State (In re Grand Jury Investigation, Fall Term, 1986), 528 So. 2d 51, 53 (Fla. 2d DCA 1988) (hereinafter ‘Afendoulis‘), held that motions to repress or expunge and proceedings concerning such motions are secret.

However, the Second District Court of Appeal in State v. Womack, 127 So. 3d 839, 842-43 (Fla. 2d DCA 2013), also reiterated that “the right of the people to be informed” is an important and necessary aspect of representative government, and as such, Section 905.28 does not authorize the expungement or repression of statements that are supported by any facts. In so holding, the court made it clear that statements in a presentment, particularly about public figures, should not be expunged simply because a court concludes them to be “unnecessary.”

Nonetheless, the grand jury is in essence the prosecutor’s mechanism. In large part, the prosecutor is the only official present. The presiding judge rarely participates in a grand jury session. In fact, the judge normally appears only to resolve legal issues which arise (for instance, questions concerning witness immunity).

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II. Secrecy and Disclosure

Historically, grand juries proceed in secret. The grand jury session, deliberations, and voting are closed.¹⁵ The courts so zealously guard that veil of secrecy they have closed proceedings merely ancillary to the grand jury session. In Palm Beach Newspapers, Inc. v. Doe, 460 So. 2d 406, 409 (Fla. 4th DCA 1984), the court held that the grand jury statute required closure of ancillary hearings conducted out of the grand jury’s presence, but while the grand jury was in session. As discussed, the court in Afendoulis determined the grand jury statute mandated closure of motions to repress and hearings on the motions. In sum, although most of the interests in grand jury secrecy are protected if the grand jury session itself is closed, the courts have been receptive to arguments which urge that the cloak of secrecy be extended beyond the grand jury session itself. That cloak, however, does not exempt criminal investigative records compiled independent of, and prior to, a grand jury session, although presented to the grand jury, from disclosure under the Florida Public Records Act.¹⁶

The United States Supreme Court has enumerated the policies underlying grand jury secrecy:

1. The fear that witnesses will not come forward voluntarily if their identity is not protected;
2. The fear that witnesses will be less likely to give full and frank testimony if their identity is known so that they become subject to retribution or inducements;
3. The risk that the indicted will flee if indictments are made public prior to arrest;
4. The danger that a potential defendant might influence the votes of grand jurors; and
5. The protection of the reputation of an individual who is accused but not indicted by the grand jury.¹⁷

Florida Statutes Section 905.24 (2019), codifies those policies and mandates: “Grand jury proceedings are secret, and a grand juror or an interpreter appointed pursuant to s. 90.6063(2) shall not disclose the nature or substance of the deliberations or vote of the grand jury.” Although there are no criminal sanctions which apply to a violation of that section, the courts routinely rely on that provision to deny access to grand jury-related matters.

In addition, Florida Statutes Section 905.27(2019) prohibits grand jurors, state attorneys and all other court personnel from disclosing to anyone, except under certain narrowly-specified circumstances, the testimony of a witness examined before the grand jury or other evidence received by it. The statute declares it unlawful:

for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person,… in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding.¹⁸

In effect, the statute attempts to prevent the press and grand jury witnesses from forever publishing truthful information concerning merely the gist of a grand jury witness’ testimony. The United States Supreme Court, however, deemed this statute unconstitutional insofar as it applied to witnesses speaking about the nature of their own grand jury testimony after the investigation has been completed.¹⁹ Florida Statutes Section 905.27 (2019), no longer should impede state grand jury witnesses from discussing with reporters their grand jury testimony once the grand jury proceeding has concluded.

Reporters also are free to observe the coming and going of witnesses into the grand jury room. Normally, the state attorney, who guides, counsels and strongly influences the conduct of the grand jury, announces, in general terms, the subject of the grand jury inquiry. Often leaks occur and the diligent reporter may gather information from sources close to the grand jury, the grand jury’s target and the court’s files themselves.

Of course, there are potential risks involved in publishing grand jury-related information. Privacy rights may be implicated. For example, if a grand jury witness’ testimony containing derogatory or very personal information concerning an unindicted individual is published, the individual may have an action for invasion of privacy or negligent violation of the grand jury statute – especially because the state has declared as a matter of public policy that such information is secret.²⁰ The United States Supreme Court, in 1989, addressed a case concerning the publication of statutorily confidential rape victim information. 21 The majority held that as long as the information is obtained lawfully and is of public significance, the First Amendment supersedes the statutory limitation. However, the state may be able to proscribe such a publication when its interest is shown to be very compelling and there are no less drastic means of achieving the result.²²

The greatest risk is the probability the reporter will be subpoenaed to reveal the source of a leak and risk contempt should she refuse to divulge the source’s identity. For example, Florida Statutes Section 905.17(3) (2019), prohibits anyone from being present while the grand jurors deliberate and vote. That section also proscribes the release of the notes, records, and transcripts of a grand jury. An intentional violation of those provisions constitutes indirect criminal contempt of court.²³ If information is leaked to the press, the prosecutor or the court might seek to punish the source by contempt.

The Florida Supreme Court has addressed similar situations on two occasions.²⁴ Both times the court decided that the newsgathering process and the need to protect confidential sources of information outweighed the state’s interest in a possible prosecution. In fact, in Morgan v. State, 337 So. 2d 951, 956 (Fla. 1976), the Florida Supreme Court overturned a contempt citation involving a reporter who refused to divulge the name of the individual who leaked a grand jury presentment in contravention of Florida Statutes Section 905.24.

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III. Florida’s Statewide Grand Jury System

Florida Statutes Section 905.31 (2019) creates a statewide grand jury. The statewide grand jury is comprised of 18 members, 15 of whom constitute a quorum.²⁵

The purpose of the statewide grand jury is to enable the state to combat organized criminal activity that involves more than one county.²⁶ Through the Act, the Legislature sought to improve the evidence-gathering process for crimes which cross county lines.²⁷ A statewide grand jury, like a county grand jury, may return indictments and issue presentments.²⁸

The Governor may petition the Florida Supreme Court to impanel a statewide grand jury “[w]henever the Governor, for good and sufficient reason, deems it to be in the public interest to impanel a statewide grand jury.”²⁹ No comparable mechanism exists in the county grand jury system. The Governor must state the general crimes or wrongs to be investigated and the fact that those activities affect more than one county.³⁰ The Florida Supreme Court may, in its discretion, impanel a statewide grand jury pursuant to the Governor’s request.³¹

Florida Statutes Section 905.395 (2019) prescribes penalties for disclosure, broadcast or publication of the “proceedings or identity of persons referred to or being investigated by the statewide grand jury.”³² The additional secrecy provisions concerning county grand juries also apply to statewide grand juries.³³

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IV. The Federal Grand Jury Structure

Federal grand juries are organized under the supervision and direction of the chief judge of a federal district court. They are composed of between 16 and 23 members. 34 The concurrence of 12 members is required to return an indictment.³⁵

Several differences exist between the federal and Florida state grand jury systems. First, an indictment from a federal grand jury (versus an information) must issue before an individual can be tried for any felony offense arising under federal law.³⁶ Federal grand juries lack the civil investigative power accorded to Florida grand juries except in one narrow area of investigative responsibility granted to special federal grand juries.

Special federal grand juries may be impaneled by the chief judges of the various federal districts to investigate criminal activity.³⁷ The special grand juries are utilized to conduct lengthy and complex investigations. They are authorized to submit reports:

1. concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or
2. regarding organized crime conditions in the district.³⁸

The secrecy rules attending a federal grand jury are less stringent than those pertaining to Florida grand juries. As in Florida, no person other than the grand jurors themselves may be privy to the grand jury’s deliberations or the vote of any juror. 39 Jurors, attorneys, and other court personnel attending the grand jury are prohibited from disclosing the testimony and other matters occurring before the grand jury unless the individual is a government attorney or personnel whom has been authorized by the government attorney to receive the information, or if the information is received in the course of duty as a government attorney.⁴⁰ Unlike Florida, federal witnesses, however, are generally free to announce their own testimony and other occurrences in the grand jury room while they were present.⁴¹ A federal prosecutor may reveal internal deliberations within the prosecutor’s office, as long as he or she does not directly reveal grand jury proceedings.⁴² In certain limited circumstances, a federal judge may limit the extent of a witness’ freedom to speak regarding grand jury matters. The court has discretion to determine whether or not an indictment shall be kept secret until the defendant is in custody or permitted to post bail.⁴³

In addition, a court has the discretion to permit or prohibit the disclosure of grand jury materials.⁴⁴ In 2004, the United States Court of Appeals for the Eleventh Circuit reversed and vacated an order from the United States District Court for the Middle District of Florida compelling the disclosure of grand jury transcripts in the Aisenberg case.⁴⁵ In 1997, the Aisenberg’s child was abducted and to date, remains missing.⁴⁶ The Aisenbergs were indicted and charged with making false statements of material facts to law enforcement officials and six counts of making false statements to law enforcement official during the initial missing child report and subsequent investigation.⁴⁷ Ultimately, the indictment against the Aisenbergs was dismissed.⁴⁸ Consequently, the Aisenbergs moved for an award of attorney’s fees and the disclosure of the grand jury transcripts to support their claims for attorney’s fees.⁴⁹

The district court ordered a wholesale disclosure of all of the grand jury transcripts in the Aisenberg case. Under Federal Rule of Criminal Procedure 6(e)(3), a district court has inherent authority to require the disclosure of grand jury material in narrow and exceptional circumstances.⁵⁰ The Eleventh Circuit reversed and vacated the order and held that the district court abused its discretion by ordering the disclosure of the grand jury transcripts because the Aisenberg case was not an exceptional case and the Aisenberg’s failed to meet the requisite burden to overcome historical and well-settled grand jury secrecy principles.⁵¹ Specifically, the Aisenberg’s did not show a compelling and a particularized need for disclosure, that the need for disclosure was greater that the need for continued secrecy, and that their request was structured to cover only the material needed.⁵² As a result, the court ordered the grand jury transcripts to remain sealed.

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ABOUT THE AUTHORS

Gregg D. Thomas is a member of the law firm Thomas & LoCicero PL in Tampa and South Florida. Mr. Thomas graduated with honors from the University of Florida College of Law in 1976, where he was executive editor of the Law Review. Before joining Thomas & LoCicero, he was a partner at Holland & Knight LLP for 22 years and clerked for two federal judges in the Middle District of Florida. He chaired the 1987 Media Law Conference and represents various media clients throughout Florida. In 1990, Mr. Thomas successfully argued Butterworth v. Smith, a United States Supreme Court case concerning the First Amendment rights of a reporter who was subpoenaed before a Florida grand jury and then silenced for life about his testimony. The Court’s unanimous decision ensures that the government cannot silence reporters.

Carol Jean LoCicero is a partner in the media law firm of Thomas & LoCicero PL in Tampa and South Florida. She received her J.D. with honors from the University of Florida College of Law in 1986, where she was elected to the Order of the Coif. Ms. LoCicero has represented various media interests in attempts to gain access to grand jury-related matters and participated in a case before the United States Supreme Court, which resulted in a declaration that Florida’s permanent ban on speech by grand jury witnesses is unconstitutional. Her practice includes access to court records and proceedings, defamation, invasion of privacy, reporter subpoenas, Public Records Act and Sunshine Act litigation, and trademark matters.

Linda Norbut is an associate attorney in the Tampa office of Thomas & LoCicero PL, with a practice concentration in media and communications law, including defamation and invasion of privacy. Linda also focuses her practice on business litigation and intellectual property matters. She graduated with honors from the University of Florida Levin College of Law in 2017 and earned her Master of Arts in Mass Communication Law from the University of Florida College of Journalism and Communications in 2013. Prior to joining Thomas & LoCiciero, Linda worked as a legal fellow at the Brechner Center for Freedom of Information, a think-tank focused on the public’s right of access to civically valuable documents and data.

FOOTNOTES

1 Fla. Stat. 905.16 (2019).
2 See Fla. Stat. 905.185 (2019).
3 Fla. Const. Art. I, Sec. 15(a).
4 Id.
5 Fla. Stat. 905.01(1), Fla. Stat. (2019).
6 See Fla. Stat. 905.095 (2019).
7 Fla. Stat. 905.23 (2019).
8 Fla. Stat. 905.165 (2019).
9 Fla. Const. Art. 1, Sec. 22.
10 See Fla. Stat. 913.10 (2019) and Fla. Stat. 73.071(1) (2019), respectively.
11 15 Fla. Jur. 2d Criminal Law Sec. 2026 (2020).
12 Douglas v. U.S., 796 F. Supp. 2d 1354 (M.D. Fla. 2011) (construing Florida law).
13 19 Fla. Jur. 2d Defamation & Privacy Sec. 87 (2020).
14 See Fla. Stat. 905.27(1)(b) (2019).
15 Fla. Stat. 905.24 (2019).
16 Tribune v. State (In re Grand Jury Investigation, Spring Term, 1988), 543 So. 2d 757, 759 (Fla. 2d DCA 1989).
17 Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979).
18 Fla. Stat. 905.27(2) (2019).
19 Butterworth v. Smith, 494 U.S. 624, 626 (1990).
20 See The Florida Star v. B.J.F., 499 So. 2d 883 (Fla. 1st DCA 1986), rev’d 491 U.S. 524 (1989).
21 The Florida Star v. B.J.F., 491 U.S. 524, 526 (1989).
22 Id. at 541.
23 Fla. Stat. 905.17(4) (2019).
24 Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986); Morgan v. State, 337 So. 2d 951 (Fla. 1976).
25 Fla. Stat. 905.37(3) (2019).
26 Fla. Stat. 905.32 (2019).
27 Id.
28 See Fla. Stat. 905.34 (2019).
29 Fla. Stat. 905.33(1) (2019).
30 Id.
31 Id.
32 Fla. Stat. 905.395 (2019).
33 See Fla. Stat. 905.34 (2019).
34 18 U.S.C. 3321.
35 Fed. R. Crim. P. 6(f).
36 U.S. Const. amend. V.
37 18 U.S.C. 3331, et. seq..
38 18 U.S.C. 3333(a).
39 Fed. R. Crim. P. 6(d).
40 Fed. R. Crim. P. 6(e)(2)-(3); 18 U.S.C. 3322(a)
41 Fed. R. Crim. P. 6(e)(2).
42 See In re Sealed Case No. 99-3091, 192 F.3d 995, 1002-04 (D.C. Cir. 1999).
43 Fed. R. Crim. P. 6(e)(4).
44 See United States of America v. Aisenberg, 358 F.3d 1327, 1349 (11th Cir. 2004).
45 Id. at 1331.
46 Id.
47 Id. at 1332.
48 Id. at 1334.
49 Id. at 1335-36.
50 Id. at 1347.
51 Id. at 1349-52.
52 Id. at 1350-51

Revised August, 2020

The Reporter’s Right of Access to Courtrooms and Court Records

by Karen Williams Kammer

Access to Courtrooms and Court Records in Florida
Access to Federal Courtrooms and Court Records
So, What Do You Do If…
Gag Orders

Access to Courtrooms and Court Records in Florida

Florida enjoys a long and storied history of supporting the public’s right of access not only to the records and meetings of state agencies but also to its courtrooms and court records. In an unbroken line of decisions in both criminal and civil cases Florida courts have recognized court proceedings and records are presumptively open where the burden of proving a need for closure rests solely with the party seeking to foreclose access. Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla. 1982) (access to criminal proceedings and records); Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla. 1988) (access to civil proceedings and records). In general, closure only may occur when necessary to protect certain delineated interests, there must be no alternatives, and closure must be no broader than necessary to accomplish its intended purpose. Lewis, 426 So.2d 1; Barron, 531 So.2d at 118. Even were litigants to agree among themselves that closure may be desired in a given instance, courts consistently have rejected such an approach. See, for example, BDO Seidman, LLP v. Banco Espirito Santo International, Ltd., 201 So.3d 1, 2 n. 1 (Fla. 3d DCA 2009) (recognizing “[d]enial of access ‘may not be based solely upon the wishes of the parties to the litigation.’”) (citation omitted). In short, impediments to public access are to be the rare exception, not the rule. Florida has made the right of access to courtrooms and court records a state constitutional right. See Article 1, Section 24 of Florida’s Constitution.

More than a generation ago, the Florida Supreme Court identified the procedures governing a court’s handling of a request to close courtrooms and seal court records in both criminal and civil cases.

For criminal cases:

There is a common law right to attend pretrial hearings. The person asking to close the courtroom must satisfy a three-part test with evidence, not just speculation or argument of his or her lawyer, in order to overcome the presumption of access. A court may foreclose access to pretrial hearings only when the proponent of closure proves by the greater weight of the evidence that:

1. closure is “necessary to prevent a serious and imminent threat to the administration of justice;”
2. there are no less restrictive alternatives other than a change of venue; and
3. closure will be effective in protecting the rights of the accused.

Lewis, 426 So.2d at 7-8 .

For trials, the right to attend is grounded in the First Amendment (unlike pretrial hearings) and is thus even stronger, but the court still may restrict access if it finds an overriding interest requires it and there are no alternatives to restricting access. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).

For criminal court records – Rule 2.420 of the Florida Rules of General Practice and Judicial Administration governs access to court records in a criminal case just as it does in civil cases. See Rule 2.420(f) of the Florida Rules of General Practice and Judicial Administration, and discussion below regarding court records in civil cases.

For pretrial discovery such as depositions – the public has no right to attend depositions or to obtain copies of deposition transcripts not filed in the court file. Palm Beach Newspapers v. Burk, 504 So.2d 378 (Fla. 1987). However, if other discovery material (such as documents the state may have gathered to prepare its case) is turned over to the defendant, no statutory exemption under the Public Records Act applies to those documents, and they are otherwise not made confidential by law, then they become available for the press and public to inspect and copy. Florida Freedom Newspapers v. McCrary, 520 So.2d 32 (Fla. 1988).

For civil cases:

*Both pretrial proceedings and trials are public events which the press and public may attend. If a person (party, witness or juror) wants to close any portion of the proceedings, he or she must meet the test the Florida Supreme Court set out in Barron v. Florida Freedom Newspapers:

(1)Closure should occur “only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed;”

(2) there are no alternatives; and

(3) closure is no broader than necessary.

Barron, 531 So.2d at 118.

For pretrial discovery – Here, too, as in the criminal context discussed above, the press and public do not have a right to attend depositions or to obtain deposition transcripts or other documents the parties in a lawsuit have that are not filed in the court file.

For court records – As in the criminal context, Rule 2.420 of the Florida Rules of General Practice and Judicial Administration governs access to court records in civil cases. Rule 2.420 provides strict guidelines a party in a civil case must follow to request the sealing of a judicial record or any portion of such record when the material sought to be closed to public access does not automatically qualify as confidential and exempt under certain sections of the Rule. In such instances, the party who wants to seal court records “must” follow these strict requirements:

1. file a written motion captioned, “Motion To Determine Confidentiality Of Court Records;”
2. “identify the particular court records or portion” of such records sought to be determined confidential;
3. “specify the bases” for such determination;
4. set forth the “specific legal authority” and “applicable legal standards” for determining such records to be confidential;
5. include a written certification that the motion is “made in good faith and is supported by a sound factual and legal basis;” and
6. include a statement that if the motion is denied then the subject material will not be treated as confidential by the court clerk.

Rule 2.420(e)(1) and (d)(4)(D)(i) of the Florida Rules of General Practice and Judicial Administration.

Any non-party (including the press) can move to unseal such court records (or vacate a sealing order) pursuant to Rule 2.420 (e)(5). If the motion to unseal is contested, the court must hold an evidentiary hearing in open court within 30 days.  And the burden of proof lies with the person who wants to keep such records sealed.

Key takeaways:

1. The press, as a surrogate for members of the public, always has standing to challenge any attempt to close a courtroom or seal court records.
2. As such, the press must be given prior notice and an opportunity to be heard on the issue of closure.
3. The person asking to close the courtroom or seal records (such as a party, witness or juror) always bears the burden of producing evidence to satisfy the legal test.

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Access to Federal Courtrooms and Court Records

Like Florida state law regarding access to state courtrooms and court records, federal law also recognizes an overwhelming presumption in favor of access to federal courtrooms and court records. As a result, the circumstances under which the press and public can be barred from federal courtrooms and obtaining federal court records are narrow. Generally, the party seeking to bar the press and public must demonstrate closure is necessary to satisfy a compelling government interest and closure is no broader than necessary to preserve that interest, a test that is similar to the test Florida state courts employ.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1982); Craig v. Harney, 331 U.S. 367, 374 (1947) (holding, “[a] trial is a public event. What transpires in the court room is public property….There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.”) Like its state counterpart, the federal system does not guarantee a right of access to unfiled discovery or to depositions. In re Alexander Grant & Co., 820 F.2d 352 (11^th Cir. 1987).

And, also as in Florida state courts, the press is the public’s surrogate and thus has standing to challenge any efforts to close courtrooms or seal records.  U.S. v. Hernandez, 124 F.Supp.2d 698 (S.D. Fla. 2000) (in prosecution of five Cuban spies, granting access to items admitted into evidence); U.S. v. Noriega, 752 F.Supp. 1037 (S.D. Fla.1990) (granting access to transcripts of Noriega’s taped jailhouse conversations with counsel and others where trial court, in ruling on defense motion to enjoin broadcast of tapes, had relied on transcripts to determine impact of disclosure on Noriega’s fair trial rights); U.S. v. Rosenthal, 763 F.2d 1291, 1292-93 (11th Cir.1985) (granting access to Title III wiretap tapes played in open court and admitted into evidence, holding “no legitimate reason” existed to bar access); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) (granting access to prisoner lists court had considered in making prisoner release decisions).

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So, What Do You Do If…

…A judge or litigant wants to close courtroom

Regardless whether you are in state or federal court, if a court proceeding has not been closed yet, but closure has been proposed, notify your news director or editor and, through her, your lawyer if there is time. Even 15 or 30 minutes may be enough for your lawyer to get involved and prevent closure or at least assert your rights.

If there is no time, as, for example, where the judge literally is about to rule on a closure request, do not leave the courtroom. Instead have someone else make the call to your news director or editor (for example, if there is more than one reporter present, one can make the call and the rest stay), and take the following steps:

On behalf of yourself, your news organization, and the public, object to the closure on the record (that is, before the judge’s court reporter) and ask for the right to be heard through counsel before the closed proceedings begin. You might say something like the following:

“I am ___________, a reporter for _____________, and a citizen of this community. On behalf of myself, my news organization, and the rest of the public, in accordance with Florida law I object to the proposed closure of this proceeding to the press and public, and request an opportunity to be heard through counsel as Florida law requires.

I am not an attorney, but I understand the public has a constitutional and common law right of access to this and all other court proceedings. At the very least, the law requires that a hearing be held, with the press and public having an opportunity to be heard through counsel prior to closure. I therefore request such a hearing so our attorney can be heard on our behalf.”

If you are in Florida state court — On the record, if you have the time, opportunity, and presence of mind, you might advise the court that the Florida Supreme Court in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) (criminal cases), and Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988) (civil cases), held there can be no closure until after a hearing, with an opportunity to be heard by the press through counsel, and that the person seeking closure must produce evidence to meet the following evidentiary test:

In criminal cases:

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;
2. No alternatives to closure are available, other than a change of venue, which would protect the administration of justice; and
3. Closure would be effective without being broader than necessary to accomplish this purpose.

In civil cases:

1. Closure is necessary to protect a recognized right (such as protecting trade secrets);
2. There are no alternatives to closure; and
3. Closure is no broader than necessary to protect that right.

If you are in Florida federal court — On the record, if you have the time, opportunity, and presence of mind, you might advise the court that the United States Court of Appeals for the Eleventh Circuit, following an unbroken line of cases in the United States Supreme Court, held in Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983), there can be no closure until after a hearing, with an opportunity to be heard by the press through counsel, and that the party seeking closure must produce evidence to show:

1. Closure is necessary to serve a compelling governmental interest (which you could argue is similar to the first part of the Florida state court test); and
2. The closure to be ordered is narrowly tailored to that interest (which you could argue combines the second and third parts of the Florida state court test).

If the judge agrees to a hearing, immediately notify your news director or editor and, through her, counsel.

If the judge does not agree to a hearing, on the record ask that she ‘stay’ (postpone) the proceedings which are about to be closed until your attorney can apply to a higher court for relief. If you can, also request that the judge enter a written order or at least direct the court reporter to provide you with a transcript of your objection and the judge’s order.

If you are ordered to leave the courtroom (or the judge’s chambers, if that is where the proceedings are taking place), even if the judge refused all requests for a hearing and postponement, do not refuse to leave. Immediately let your news director or editor know.

…the courtroom is already closed

If closed proceedings already have begun, notify your news director or editor immediately. Send the judge a written objection and request for access to the proceedings. Any readable handwritten note will do, preferably including the statement suggested above as well as the date and time. You should ask a bailiff, the judge’s secretary, or other court employee to deliver the written objection and request to the judge immediately. You should also request that the proceedings be stopped until either a hearing is held or an application for review of the court’s closure order can be made to a higher court. If possible, keep a copy of your note for your lawyer.

Just as you should not refuse to leave a courtroom when ordered to do so, do not attempt to force your way into a closed courtroom, although there is no harm in asking.

…you are denied access to court records

As discussed above, there is a presumptive and fundamental right of access to court records. Here are some tips on what to do if access is denied:

If you are prevented from inspecting and copying documents of any court, whether state or federal, and there is an immediate need for access, notify the news director or editor.

If there is no immediate need for the records, you should do the following:

1. Make a written request for access to the documents. If the records were ordered sealed by a judge, make the request to the judge who issued the order. If it is the clerk who is holding back, direct the request to the clerk.
2. Identify in the request the records that you seek to inspect as narrowly and with as much detail as possible.
3. Do not disclose your reason for asking to see the records (it is irrelevant as a matter of law).
4. If the written request is denied, ask that the denial be put in writing, together with a statement of the reasons for the denial. Then consult with your news director or editor.

…a do-not-publish order is issued

Virtually all orders directing the press not to publish information it has obtained lawfully are unconstitutional prior restraints. However, you should know that violation of even an obviously invalid order legally subjects you to contempt and jail. If such an order is about to be entered, ask the judge if you might be heard through counsel before the order is entered. You might say something like the following on the record:

“I am _______________, a reporter for___________, and a citizen of this community. On behalf of myself, my news organization, and the rest of the public, I object to entry of the proposed prior restraint and request an opportunity to be heard through counsel.

I am not an attorney, but I understand the U.S. Constitution prohibits entry of the proposed prior restraint. Both the United States Supreme Court and the Florida Supreme Court have held prior restraints to be unconstitutional. See the United States Supreme Court decision in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), and the Florida Supreme Court decision in Florida ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla. 1976). I therefore request a hearing prior to entry of the order so our attorney can be heard on our behalf.”

If an order is entered prohibiting you from publishing information you received, you should do the following:

1. Immediately notify your news director or editor.
2. Request a copy of the order. If the order is not in writing, request that it be put in writing. If the order is entered orally on the record, request that a copy of the transcript be prepared immediately and, if possible, signed by the judge and formally filed with the clerk of the court.
3. Make your request for a copy of the order on the record. If no court reporter is available or if the judge refuses to do so ‘on the record,’ deliver a letter to the judge and the clerk of the court setting forth your requests, including the date and time. Keep a copy.
4. As described above, on the record object to the order and ask for the opportunity to be heard immediately through counsel. Advise the judge that it is your understanding that no such order is ever valid.
5. Do not enter into an agreement with the judge not to publish matters relating to the proceedings, even if your access to the proceeding is conditioned on such an agreement. If the judge seeks such an agreement, state that you have no authority to make such agreements and have been instructed not to do so by your news director or editor. Additionally, conditioning access to an agreement not to publish is an unconstitutional prior restraint.

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Gag Orders

Although orders telling the press not to publish are presumptively invalid, such is not the case with orders to trial participants not to talk to the press. In cases where a judge orders trial participants not to discuss the case with the press, that is, enters a ‘gag order,’ you should do the following:

1. Attempt to obtain a copy of the order if it is in writing. If the order was entered orally but on the record, request a copy of the transcript.
2. Notify your editor or news director and, through her, legal counsel.
3. You may and should continue to ask questions of trial participants.
4. If you and your editor or news director wish to challenge such an order, consult your news organization’s lawyer.
5. As long as you don’t ask the participants to violate the gag order, you can publish anything you receive from the trial participants, even if by telling you they violate the judge’s gag order.

ABOUT THE AUTHOR

Karen Williams Kammer is Of Counsel to Mitrani Rynor & Adamsky, P.A. in Miami, and is a past chair and long-time member of the Florida Bar’s Media and Communications Law Committee. Kammer, a former reporter and editor for major- and mid-market news organizations, has been practicing law in South Florida since 1988, regularly advising media clients on libel, public records and open meeting laws, news gathering, reporter’s privilege, access, and privacy matters, and litigating numerous such matters to a successful conclusion. Her clients have included WPLG Inc., BH Media Group Inc., Post-Newsweek, Graham Media, NBC, Telemundo, CBS, Fort Myers Broadcasting Company, and an international financial network. She is a 1988 graduate of the University of Chicago Law School. In 1979 she received a Bachelor of Science degree in journalism, and in 1980 a Master of Science degree in journalism, from the Medill School of Journalism at Northwestern University.  During her tenure with the Media and Communications Law Committee she created a program to educate judges about First Amendment and related issues, and regularly appears on panels discussing such issues including judicial studies conferences for Florida state judges, the National Association of Hispanic Journalists, and conferences sponsored by the Media Law Resource Center.

Revised May 2020

The State Courts System

The Florida court system is composed of the Supreme Court, five district courts of appeal, 20 circuit courts and 67 county courts. Each layer of the Florida judicial system has a distinct role in providing justice to all Floridians.

Article V of the Constitution of Florida establishes state courts in which judicial power is vested and provides for the creation, organization, jurisdiction, and administration of the judicial branch of Florida. A revision to Article V, adopted by the voters of Florida on March 14, 1972, effective January 1, 1973, established a uniform state courts system consisting of the following courts:

APPELLATE COURTS

The Supreme Court
District Courts of Appeal

TRIAL COURTS

Circuit Courts
County Courts

See The State Courts System article for an overview and a deep dive into Appellate Courts, Trial Courts, and the Office of the State Courts Administrator.