Walking on sunshine laws: how Florida's free press history in the U.S. supreme court undermines open government.

• Author: Eagleton, Joseph T.

"Our liberty depends on the freedom of the press, and that cannot be limited without being lost."--Thomas Jefferson (1)

One of the First Amendment's most powerful values is freedom of the press. (2) In the modern 24 hours a day, seven days a week world of instant news, however, freedom of the press is largely taken for granted and has even, perhaps, lost some of its luster. The decline of newspapers, (3) the growth of online tabloid journalism, (4) and the punditry of a cable news machine convinced that every story has two sides (5) have removed the Cronkite-esque mystique that once surrounded the media, making it easier than ever to overlook its role as the linchpin of a democratic society. (6)

Only 15 percent of people around the globe live in a nation that embraces freedom of the press, meaning that the vast majority of the world has its news filtered, stifled, tainted, propagandized, or controlled entirely. (7) The Arab Spring (8) (as the pro-democracy protests in the Middle East and Northern Africa that erupted during 2011 and toppled governments in Tunisia, Egypt, and Libya, have come to be known)is a stark and powerful reminder of what can happen when a country's citizens are silenced and repressed by secretive and authoritarian government regimes. While these protests have yet to translate officially into greater press freedom in a region dominated by state-sponsored media, (9) there is little doubt that freedom of the press is one of the key reforms at the heart of these protests--and for good reason.

Freedom of the press is, as Winston Churchill once asserted, "the unsleeping guardian of every other right that free men prize" and "the most dangerous foe of tyranny." (10) It has been, and continues to be, the best way to expose corruption, educate the public, and hold leaders accountable. Without information, citizens are powerless to impact their government. Without citizens impacting government, power becomes concentrated in an elite few. Without the fear of public outcry, the will of the few trumps the will of the many. And absolute power, it has long been said, corrupts absolutely. (11)

Freedom of the press is hollow, however, without open government. Transparency, along with public access to records and meetings, is how the press is able to communicate with citizens about the decisions of those in charge. Open government is key to the democratic process because it instills public trust in government conduct while ensuring that those in power are called to account for their actions.

As anyone who watched the legal battle in the aftermath of the 2000 U.S. presidential election play out live on television knows, ballot designing and chad-hanging aside, the state of Florida has one of the most well-established open government traditions among the 50 states. Florida's constitution contains an express, self-executing provision guaranteeing access to public records and meetings; (12) the Florida Supreme Court televises and provides an online archive of its oral arguments dating to October 1997; (13) and Florida's Government-in-the-Sunshine law (14) remains one of the broadest in the country. While the state government is perhaps most nationally renowned for its electoral mishaps, it has long been a national leader in fostering open government. (15)

Yet, despite its tradition of transparency, Florida's national legacy with respect to freedom of the press is somewhat more mixed. Over the course of the last half-century, there have been several instances in which the U.S. Supreme Court has stepped in to invalidate a Florida policy as contrary to the First Amendment's free press clause. From the Court's rebuke of a Florida statute banning publication of rape victims' names, (16) to the Court's reversal of a contempt citation for editorials critical of the state's judicial system, (17) to the oft-cited "right of reply" ruling, (18) Florida and the free press clause have an interesting and often contentious history together.

This article traverses that largely unexplored history through the lens of four U.S. Supreme Court free press cases that originated in Florida, weaving together, along the way, a narrative about the Sunshine State's role in the development of American free press jurisprudence. It begins by briefly exploring Florida's history of open government, which sets the stage for an in-depth review of Florida's impact on the free press clause in the nation's highest court. After describing the case law, this article highlights the tension between the state's longstanding practice of fostering open government and its experience with respect to free press cases at the U.S. Supreme Court, ultimately concluding that these cases may serve negatively to impact outsiders' perceptions of Florida's state government.

The Sunshine State and Sunshine Laws: Florida and Open Government

Florida's open government laws are widely regarded as some of the broadest and most all-encompassing in the country. (19) The state's attorney general, Pam Bondi, has declared that, "[i]n Florida, transparency is not up to the whim or grace of public officials. Instead, it is an enforceable right." (20) That right is found in an amalgamation of provisions within Florida's statutes and in its state constitution.

Florida's first open government law, known as the "Public Records Law," was passed in 1909, (21) designating a state policy generally to keep all government records open for any person to view. (22) Pursuant to this enactment, which remains good law today, any public records received by a state agency during the course of its official government business, absent a special exemption by the legislature, (23) are presumed to be open for inspection and copying, at any reasonable time, under reasonable conditions, by any person desiring to do so. (24) The term "public records" is expansively defined in the statute to include documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, and data processing software--regardless of the form, place of storage, or means of transmission. (25)

In 1967, the Florida Legislature passed the "Government-in-the-Sunshine" law, which reaffirmed the principles of the 1909 Public Records Law and became the nation's first open meetings law. (26) The Sunshine Law is well known to most Floridians, perhaps as a result of its uniquely apropos name, and it remains a benchmark for other states' open government laws. The law, now codified in F.S. Ch. 286, (27) provides that all board and commission meetings at which official acts are undertaken must be publicly open, that reasonable notice of all such meetings must be given, and that minutes of the meetings must be promptly recorded and made available for public inspection. (28) The Florida Supreme Court has broadly interpreted the Sunshine Law's open meetings provision to apply to any gathering of a covered entity--which the court has said includes every board or commission over which the legislature has "dominion or control" (29)--"where the members deal with some matter on which foreseeable action will be taken by the board." (30) The Sunshine Law ensures that formal government business is conducted in the open and--coupled with the Public Records Law's mandate that all official government communications be subject to inspection--ensures that Florida's state government is accountable to its citizens. (31)

Florida's openness is not confined just to these statutory rights, however. In 1992, Florida voters overwhelmingly approved a proposed constitutional amendment guaranteeing a right of access to public records and meetings. (32) This provision, now part of Fla. Const. art. I, (33) serves as yet another pronouncement of Florida's commitment to open government, and ensures that the legislative and judicial branches are also subject to transparency standards. (34) The constitutional language tracks the Public Records Law with respect to the right of any person to inspect or copy any public record created during the course of official state business, but it goes further in defining the specific entities to which this right of access applies. (35) These enumerated entities include all three branches of state government and their affiliated agencies and departments; all counties, municipalities, and...