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February 9, 2010 |
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| October 14, 2006 |
By: Julie Kay |
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Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The venerated First Amendment to the U.S. Constitution has taken some hits in South Florida in recent years. But it keeps fighting back.
This June, the Miami-Dade County School Board removed a book that Cuban-American critics said favorably portrayed life in Cuba under Fidel Castro.
In May, the Florida Legislature banned the use at state universities of private, state or federal funds for travel to certain countries deemed enemies by the U.S. government — notably, Cuba.
Last month, the Miami Herald reported that a number of South Florida journalists, including some at Miami Herald, El Nuevo Herald and WLRN-TV, were paid by the federal government for appearing on U.S. government-produced radio and TV shows featuring anti-Castro propaganda.
On the freedom of religion front, the U.S. Department of Justice and an ultra-orthodox Jewish group filed a federal religious discrimination lawsuit against the city of Hollywood for trying to bar the group from locating its synagogue in a residential neighborhood.
Last week, the Justice Department said it made a mistake in labeling a Broward County antiwar group “subversive” and monitoring the group on its terrorist-tracking data base.
The American Civil Liberties Union of Florida, which obtained that information through the Freedom of Information Act, said the Pentagon action threatened the freedom of Americans to speak out against the Iraq war. Documents indicated that the Miami-Dade Police Department passed along the information to the military.
Then there’s the continuing fallout and civil rights litigation over the heavy-handed police response to demonstrators during the Free Trade Area of the Americas conference in Miami in 2003.
To commemorate National Freedom of Speech Week, a project by journalism, law and media groups led by the Media Institute, a nonprofit think tank in Arlington, Va., the Daily Business Review asked First Amendment experts to take the temperature of freedom of speech, press, assembly and religion in South Florida.
Everyone interviewed expressed concern about the number and level of First Amendment challenges. But they felt encouraged that the courts have continued to uphold the First Amendment — even if the public and members of the executive and legislative branches of government sometimes have not.
“The biggest problem in South Florida is we lack respect for the values of the First Amendment,” said Sanford Bohrer, a media lawyer who is a partner at Holland & Knight in Miami. “Everyone is for their own freedom of speech. But we need to think of everyone, particularly when it comes to religious freedoms.”
“There are consistently First Amendment issues being litigated in South Florida,” said Randall Marshall, legal director for the ACLU of Florida. “Especially, there has been a long history of litigation on issues related to Cuba and Fidel Castro.
Banning books
Bohrer, like most of the lawyers interviewed, was particularly concerned about the Miami-Dade School Board’s decision to remove the book “Vamos a Cuba” from all school libraries. A split School Board overruled the recommendations of two review committees and Superintendent Rudy Crew in making the decision.
The ACLU sued the School Board in U.S. District Court in Miami. Judge Alan Gold quickly ordered the school district to return the books to the shelves immediately. The board is appealing. It has spent more than $100,000 on legal bills so far.
“Every time a book is banned, the First Amendment takes a step backward,” said Sam Terilli Jr., a journalism professor at the University of Miami and of counsel at Ford & Harrison in Miami. “The solution is more speech and discussion, not taking a book off the shelf. We as a community need to learn that.”
Indeed, the Cuban American National Foundation publicly opposed banning the book. As an alternative, the foundation offered to donate books portraying “the real Cuba” to the schools, said Alfredo Mesa, who serves on the foundation’s board of directors.
“Obviously there is a lot of emotion involving the plight of what Cubans go through every day,” Mesa said. “But at the end of the day, banning books is wrong. The way you educate kids is to put out more books.”
Travel and religion
The ACLU also filed suit in federal court challenging the constitutionality of the new Florida law effectively banning state university professors and students from traveling to Cuba, Iran, Libya, North Korea, Sudan and Syria for study and research.
“The primary effect of this legislation is to deny Americans information about other parts of the world,” said Howard Simon, executive director of the ACLU of Florida. He called the law “crude censorship.”
The ACLU also has considered becoming involved in a federal suit in Miami filed last month by the Associated Press and five television networks challenging a Florida statute barring exit polling within 100 feet of polling places. “Florida has a long history of trying to regulate both news organizations and polling firms,” Marshall said.
Freedom of religion has also been litigated locally.
In Hollywood, after the Chabad Lubavitchers began holding services out of two houses in a Hollywood neighborhood five years ago, neighbors complained about excess noise and traffic. City commissioners agreed that the neighborhood was not zoned for a synagogue and ordered them to leave. But the issue ignited charges of interference with religion.
In July, U.S. District Judge Joan Lenard approved a legal settlement between the city and the Chabad that allows the synagogue to stay and expand, pays it $2 million and requires the city to rewrite zoning criteria used to grant permits to religious groups that want to open in neighborhoods.
FTAA and freedom of assembly
First Amendment watchers say one of the biggest setbacks to free speech and assembly in Florida occurred in November 2003, when police officers from dozens of police agencies were deployed under the leadership of the Miami Police Department to keep order during the FTAA summit conference.
In June, after more than two years of investigation, Miami’s independent Civilian Investigative Panel issued a final report concluding that police used excessive force and failed to adequately protect the First Amendment rights of demonstrators. The panel recommended better training for police in safeguarding citizens’ constitutional rights.
Last week, union members and retirees gathered in Miami to urge Florida Attorney General Charlie Crist to investigate the police conduct.
Nearly a dozen federal suits have been filed in Miami against various cities and police agencies, including Miami, Miami-Dade County, and the Broward Sheriff’s Office.
The suits allege that thousands of protesters who showed up at the permitted meetings were harassed, threatened, injured and arrested by police in violation of their First and Fourth Amendment rights. Some were injured by police after being hit with batons, sprayed with tear gas or shot with so-called less lethal projectiles like rubber bullets.
One suit, filed by documentary filmmaker Carl Kesser against the city of Miami, recently was dismissed by U.S. District Judge Adalberto Jordan on the grounds that while Kesser “may have sustained a deprivation of his constitutional rights, the alleged unconstitutional conduct [i.e., the shooting] was not pursuant to a city policy, custom or practice.” Nevertheless, Kesser and his wife won a settlement from the city on a negligence claim.
Miami attorney Ray Taseff represents six plaintiffs in two cases who claimed they were “trapped into false arrest” and injured by police during the FTAA conference.
“The First Amendment took a beating that day,” Taseff said. “The police are very good at protecting people and property, at identifying rabble rousers. But they’re not so good at protecting peoples’ rights under the First Amendment.”
Also this year, civil liberties lawyers took up the cases of nearly 20 University of Miami students who faced university disciplinary action for participating in peaceful campus demonstrations in support of janitors seeking better pay, benefits and union organizing rights.
Lida Rodriguez-Taseff, a partner at Duane Morris in Miami, recently filed suit in Miami-Dade Circuit Court on behalf of one student, Brian Lemmerman, alleging that the university’s violations of due process breached its contract with the student.
The press and open information
Restrictions on press freedom are of particular concern to groups such as the First Amendment Foundation and the Society of Professional Journalists.
One area is the growing trend of prosecutors, criminal defense lawyers and even civil litigants to subpoena reporters or seek reporters’ notes to prove their cases. Reporters at the South Florida Sun-Sentinel, New Times Broward Palm Beach and Daily Business Review recently have been subpoenaed. So far, however, these subpoenas have been quashed or delayed.
The fear is that such moves could chill vigorous news coverage of important events and issues, because reporters and their sources have to worry about whether confidential sources and materials will be revealed in court.
Recently, the Tallahassee-based First Amendment Foundation expressed concern about the removal from the public court docket of hundreds of civil and criminal cases in Broward and Palm Beach counties and elsewhere in Florida. That hampers the ability of the public and the news media to spot important public policy issues embedded in court cases and to hold the courts accountable.
“Obviously that makes the hair on the back of our necks stand up,” said foundation director Adria Harper. “To think there is a secret judiciary implies it is catering to individuals in power.”
Florida has open-records laws that are the envy of press and open-government advocates around the country. Yet special interest groups and legislators constantly are trying to pass exemptions. There are nearly 1,000 exemptions on the books. The foundation constantly fights to block bills to exempt more public records.
Sam Terilli said the press issue that particularly worries him is the recent disclosure of journalists being paid by the federally operated Radio Marti and TV Marti to appear on their programs.
“The whole question of government propaganda and the government’s use of journalists is going to become more and more of an issue,” Terelli predicted. “It’s reprehensible for the journalists to do it and for the government to do it. The government ought to stand up and be honest and not hide what they’re doing.”
Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.
Randall Marshall photo by Aixa Montero
Coming Tuesday
Under Seal: More and more petitions and briefs are being filed with the U.S. Supreme Court under seal or in redacted form. A look at why, and the reactions from access advocates.
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