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Florida Shield Law Invoked for First Time

Magazine article Editor & Publisher

Florida Shield Law Invoked for First Time

Article excerpt

Court rules that a St. Petersburg Times bureau chief can't be forced to answer questions about how insurance executives spied on a state official

CITING FLORIDA'S NEW shield law, a federal judge has ruled that a St. Petersburg Times reporter can't be forced to answer questions about an interview she had with insurance executives who said they spied on a state official.

U.S. District Judge Maurice Paul, in a June 9 decision, rejected an effort to force Lucy Morgan, the Tallahassee bureau chief of the newspaper, from giving a deposition about her interviews with executives of the Bankers Insurance Co. of St. Petersburg. Kevin McCarty, a state Department of Insurance official, who sued Bankers, is seeking information on the spying claim.

Morgan's story, which ran on June 17, 1996, quotes Bankers officials as saying they hired a private investigator to dig up something on McCarty that would cause State Insurance Commissioner Bill Nelson to fire him. Subsequently, McCarty filed suit against the insurance company.

McCarty oversaw regulatory matters dealing with Bankers when the private eye was hired. The FBI later found an illegal wiretap had been placed on McCarty's home telephone by the investigator, who pleaded guilty to federal wiretap charges. Bankers officials have reportedly denied saying they hired a private eye to gather dirt on McCarty.

"Based on the recent change in Florida law as it relates to the journalist's privilege, the Court has determined that application of either the federal common law standard or the newly announced Florida standard will yield the same result, as factors are virtually indistinguishable," wrote Paul in a 19-page decision.

EDITORS HESITANT ABOUT NEW LAW

Some Florida newspaper editors said they were hesitant about having a state shield law, but needed to do something to stem the tide of subpoenas for everything from car wrecks to boating accidents.

The new law, which went into effect in May, spells out the criteria that attorneys and other investigative bodies must meet when seeking to force a reporter to testify: The information must be relevant to the case; there has to be a compelling need for the reporter to produce it; and the information cannot be obtained from another source.

Prior to the bill becoming law, reporters were subject to existing case law that provided the same three-part test.

Nationwide, 30 states and the District of Columbia have adopted shield laws. Most states provide reporters with a "qualified" privilege, while in seven states members of the Fourth Estate have "absolute" immunity from revealing sources.

A "qualified privilege" means that a reporter can be forced to testify as a last resort. An "absolute privilege" means that reporters can't be forced to testify about their sources or the things they witnessed during their reporting.

INCREASE IN SUBPOENAS

One of the arguments made in favor of a shield law was that it would cut down on the number of subpoenas issued to reporters. A 1993 study by the Brechner Center for Freedom of Information in Gainesville, Fla., found a nearly 71% increase -- from 268 to 458 -- in the number of subpoenas issued to reporters during a 21-month period following a 1990 decision by the Florida Supreme Court in a case involving the Miami Herald.

In that case, the court did not recognize a journalist's right to decline to testify about something they witnessed.

"I guess I belong to that school of us who didn't want to ask the legislature for anything on the theory I don't want to ask a bunch of politicians I cover for a favor and so I hated to have to go there, but in the end so many of us were getting so many subpoenas for stupid stuff that it was probably the only way we could avoid these huge legal expenses," said Morgan. …

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