Florida Shield Law Invoked For First Time p.10

By: David Noack 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.
In Florida, there have been attempts over the last few years to get lawmakers in Tallahassee to pass a shield law and legislation was approved five years ago, but was vetoed by Gov. Lawton Chiles, because the bill gave reporters total immunity from having to testify.
Dick Shelton, executive director of the Florida Press Association, said some newspaper editors were reluctant to go to lawmakers, fearing that they might fare worse than under the existing judicial privilege.

Case law decisions varied too much
"A lot of the editors were concerned that we would get worse than what we had under case law. We had that three-part test under case law. But then we started getting varying decisions on the case law. Judges in some areas were not applying the three-part test, so we thought we better put something on the books," said Shelton.
Bob Shaw, president of the First Amendment Foundation who is also on the board of the Florida Society of Newspaper Editors, said there was vigorous debate within both groups about how to get state lawmakers to approve a shield law. "This shield law does away with a lot of civil subpoenas. . . . It's clear from the outset that the burden is on the attorney who is issuing the subpoena. The lawyer has to show to the court why the testimony would meet this three-part test," said Shaw, managing editor of the Tallahassee Democrat.
Doug Clifton, executive editor of the Miami Herald, said he regrets having to go to lawmakers to get a law passed, since the courts were not upholding the three-part test provisions. "It was only because we so consistently met with resistance in the courts . . . both the criminal and civil bar realized that reporters cover a lot of stuff, developing pertinent information. So we were being seen as an investigative source for them. Especially in civil matters," said Clifton.

Nuisance subpoenas
Phil Lewis, editor of the Naples Daily News, said that while there have been a few high-profile cases of reporters being sent to jail for refusing to name sources, the bigger issue was the increase in the number of "nuisance" subpoenas.
"I believe the shield law passed this year because more newspapers were solidly behind it. In past years, support was lukewarm from some of the major metros. It wasn't a 'Kidwell' case (the Miami Herald reporter sent to jail for refusing to testify about a jail house interview) that united editors, it was the growing number of nuisance subpoenas from private attorneys, public defenders and prosecutors, who were using newspaper staffs to do their preliminary research for them," said Lewis.
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, said that until several years ago, the courts in Florida had been expanding journalists' privilege. "The problem in Florida was unusual, because, up until 1990, the courts had been quite expansive in their interpretation of the scope of the privilege. No one seemed to feel a shield law was necessary, and many viewed the development of a court-created privilege as more flexible than a rigid statute would be," said Kirtley.
?(Editor & Publisher Web Site: http: www.mediainfo. com) [caption]
?(Editor & Publisher, July 4, 1998) [Caption]