Legal Update

From the Legal Hotline (877-NEWS-LAW)

Take-down requests, digital edition pricing and more in today’s Legal Hotline recap.

Q. Can you provide me with the general legal and journalistic guidelines for when I should (if ever) take down a story or other information posted on our website?

A. This is a frequent question to the hotline. See this white paper that goes into the issue in detail.


Q. Can you review and advise or refer me to some helpful AGO or case law. I am simply trying to have the newspaper included in the notice of regular, special and emergency meetings (sent to board members) and attempting to be added to the email distribution list for memos, etc. from the superintendent to board members.

I have noticed very little discussion on items at meetings (that seemingly would need some discussion before approval) and it seems board members are regularly being provided memos, letters, etc. by the superintendent and staff members (principals), finance director, facilities director, etc. that I would think would fall under the definition of public records.

I asked if they could add my email to the school board members email list for (notifications of meetings and dissemination of other information). They say they are reluctant to do so because sending “outside” addressees may result in confidential information meant only for internal recipients being sent in error to these “outside” courtesy recipients.

My counter would be that no one (including the newspaper) would know to check the board website for a meeting agenda if they don’t get an email advising there is a meeting.  The implication is that the public would need to check the district’s website daily.

A. As I understand it, the schedule of meetings is noticed on the district website. While the district must provide reasonable notice of meetings, with reasonableness defined by the circumstances, it isn’t specifically required to provide email notice of meetings, although the superintendent can certainly direct that as a courtesy.  I would think that in analyzing the benefit v. the burden to staff in maintaining two separate email address strings, it would be minor (and with little downside despite the concern) to add you as you have requested.


Q. Video taken today at our local courthouse features three sheriff’s office employees (included the sheriff) ordering an individual out of the courthouse because he had his camera out filming.   We have never previously been prohibited from taking photos in the courthouse and there has never been any such notice posted. It appears this individual has a history of testing this policy.  I am being told the sheriff has drafted a policy prohibiting it (today after the incident) and will have it posted tomorrow.

Is there any existing law or case law supporting this action?  Thank you for any light you can shed on this.

A. As a general rule, a government agency cannot prohibit photographing or video recording in spaces in the courthouse generally open to the public.  In other words, it¹s okay to video record in a public reception area or hall; it would not be okay in a private office.

But the important issue here is that the sheriff’s office is making policy for the courthouse—as opposed to the chief judge for the circuit, who is supposed to be doing that.  When the sheriff makes rules about how the media and others gather news in the courthouse, there may be a separation of powers problem.  Jim Maguire at Thomas & LoCicero firm in Tampa sent me an older Florida Supreme Court case from 1976 that calls this type of ban into question.  Here is the link.


Q. I have a quick question for you.  I have an attorney that needs to publish a lot of legals at one time and they need to run two consecutive weeks.  Can we publish a section just with their legals and put the month, the two days and year on the header and just insert the same insert for the two dates instead of running two separate runs with individual dates on header? In other words, the only difference is that we would have two runs of the paper but each would have an additional insert with just this attorney’s legals. It would run full circulation. We would just like to print once and insert it twice, since these are all full-page display ads and the number of legals equals approximately 60 full pages. [I was planning on doing individual affidavits for each ad with a unique ID number since each one has a unique case number.]

A. The statutes refer to “publication in a newspaper.” On one hand, this seems ok as long as it does not confuse the reader. As you indicate, you will be making the insert appear as an integral part of the main edition by linking it with corresponding dates in the header.

I also reached out to Wayne Malaney, a Florida attorney who is an expert in this area, and he has another view. He thinks there could be some confusion when the insert is attached to the affidavit of publication.  If there is any confusion, a creative lawyer might somehow use the one-time printing as an issue to challenge the notice. Although more costly, he thinks printing it twice with each run would be the best route.

Bottom line is that while nothing prohibits this, nothing specifically authorizes it either.  I think if it ever came up, you could argue based on existing AG opinions that “published” is broader than just “printed” and that if the insert is “circulated’ with the edition, it is in fact “published” even if it is not actually “printed” again.

A final note of caution since there are so many ads—the advertiser should be aware that for some ads there may be more restrictive requirements for placement and these should be followed.

It’s a good question. I think you could do it this way but I do think there is some risk, maybe even a small risk.


Q. I recall that the minimum charge would be 70 cents a square inch–has this changed?

A. You can charge your “established minimum commercial rate” in place of the 70 cent rate if that minimum commercial rate is higher. See 50.061.


Q. We have an active citizen group that has recently taken to attending city commission meetings where they take the podium to use words like “f___,” “bull____” and other vulgarities that my reporter won’t even share aloud with me.

They seem to be leaning on some Supreme Court cases that give them the right to do this, and want to press the point with the commission.

OK, so in our news story about this, we used the words “vulgar,” “obscene” and “vile” to describe the language.

Now the citizen’s group’s representative, who won’t share his name or telephone number (just email) has telephoned threatening to sue us for libeling members of his group by thus characterizing their language … UNLESS we publish a strongly-worded retraction admitting how wrong we are.

(He is also recruiting others to call and harangue us similarly. He estimates we’ll get 500 such calls. We’ve gotten one so far.)

After a tough 45-minute phone call with this man (my editor was on for the first 20 minutes), I realized I wasn’t defending myself adequately. Can you help?

I actually wouldn’t mind publishing, not a retraction, but a clarification, if you will, explaining that in certain cases, the Supreme Court has found that some words that are generally regarded as vulgar are, indeed, not so, legally.

What do you think?

A. I think the member of the citizen group is confused.

The commission’s actions regarding the group will be subject to the First Amendment and cases construing it.  “Obscene” content is not protected by the First Amendment, and the commission can ban that content at its meetings.  For content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person’s prurient interest; depict or describe sexual conduct in a “patently offensive” way; and, taken as a whole, lack serious literary, artistic, political or scientific value. This is based on the Supreme Court’s 1964 landmark case on obscenity and pornography where Justice Potter Stewart famously wrote: “I know it when I see it.”

I don’t think the use of profanity or vulgar words will rise to the level of obscene content since it does not appear to meet the second prong (depicting sexual conduct), at a minimum. Thus, if the group is entirely barred from the meeting solely for dropping f-bombs from time to time and there is no real disruption of the meeting as a result of their conduct, then the group might have a point.

If challenged, a court will looked at the Commission’s actions and the conduct of the group in the context of all the facts at hand.

But this has nothing to do with what you are allowed to publish. You can publish what you want according to your own editorial standards, and further, you will be protected from any defamation suit by the group (or the commissioners for that matter) if you report what is said at the public meeting in a fair and accurate manner. This is called the fair report privilege.  You are totally within your rights to describe their speech as noted. In fact, to do otherwise would broach your own editorial review standards and commitment to your readers.

[Finally, I would just note (because you hear this all the time) that licensed broadcasters are indeed barred from broadcasting certain profane/indecent language during certain child-present hours but this is ban is based on a longstanding FCC rule.]

Jim Maguire, our defamation expert, adds that he agrees with this analysis but one thing struck him:  he wonders if the people in the group are upset because the paper characterized their speech as “obscene,” which could, in a technical sense, mean that the language is not protected by the First Amendment.  That’s the only legitimate gripe he thinks they could have.  Describing their speech as vulgar or vile is a matter of opinion and clearly permissible.

Finally, if you decide to run an editorial, I’m happy to take a look at it before publication.


Q. I’m the circulation manager for my newspaper and I had a question that I was hoping you could help me with. We are considering lowering the prices for our digital version of the paper. Are we within our rights to have varying prices for the digital version or does it have to be equal to the print version–our reasoning is that with digital there isn’t the overhead we have with print (printing costs, postage). Just wanted to cover all our bases before we consider moving forward with this. I look forward to hearing from you soon.

A. Yes that is entirely appropriate and many newspapers and other publications use this model.