Judge rejects losing politician's libel claim

A judge has rejected a libel lawsuit by a former county commissioner against his successor. Brian Blair is a former professional wrestler who in 2008 sought re-election as a commissioner of Hillsborough County, Florida. Blair lost that race to political newcomer Kevin Beckner. In March 2009, Blair sued Beckner, claiming that the upstart's campain ads falsely defamed Blair. The losing candidate challenged statements concerning his position on such issues as commissioners' pay, funding for a women's shelter, a proclamation honoring Robert E. Lee, and enviornmental matters.

Blair contended that the campaign advertising was false and defamatory. But Judge Bernard C. Silver found that Blair had insufficient evidence to support his case.

“The freedom of exchange of ideas on divisive political issues is the cornerstone of our democracy,” Judge Silver wrote. “No evidence has been presented to show that Beckner made the statements at issue with knowledge of their falsity or recklessly disregarded their truth.” Consequently, Judge Silver concluded, Beckner was entitled to summary judgment. The Beckner campaign statements, Judge Silver’s opinion noted, were based upon newspaper articles and public records. The First Amendment entitles a speaker to rely upon such sources, Judge Silver found.

“We are very pleased with Judge Silver’s ruling,” said attorney Gregg Thomas. “This lawsuit was simply a losing political candidate’s effort to silence his critics. Judge Silver’s opinion recognizes that political speech is protected by the First Amendment.” A story concerning the ruling is available on TBO.com.

David Bralow Returning To Tribune Company

David S. Bralow has announced his departure from Thomas & LoCicero PL and will return to Tribune Company to serve as its lead newsroom lawyer for East Coast newspapers.

Bralow was Tribune’s assistant general counsel prior to joining Thomas & LoCicero on March 1, 2009.

“As Tribune Company prepares to emerge from Chapter 11, the company quite sensibly looked to David to serve its legal needs full-time,” said Gregg Thomas, president of Thomas & LoCicero.  “We will miss him greatly as a partner, but we are excited about having David as a client again.”

“I have truly enjoyed my time at Thomas & LoCicero, and I look forward to my continued relationship with my friends there,” said Bralow.

David is admitted to the bars of Florida, New York and Pennsylvania.  He is also a member of The Florida Bar Media Law Committee and the American Bar Association Forum on Communications Law.

Thomas & LoCicero represents clients in a variety of legal matters, including commercial litigation, media law, intellectual property issues, and marketing matters.  The firm’s offices are in Tampa and South Florida.  For more information, call 813-984-3060, or see the firm’s web site, which is available at www.tlolawfirm.com.

High-profile public records dispute continues
NCAA seeks Florida Supreme Court review of appellate court decision requiring release of documents provided to state university

The NCAA is seeking Florida Supreme Court review of a lower court decision that a private party in possession of public records must produce them in response to a public records request.

The case concerns the NCAA's investigation of an academic cheating scandal at Florida State University. In addition to asking the Florida Supreme Court to review the case, the NCAA has asked that Court to stay for the time being any lower court orders requiring the NCAA to disclose the records. Attorneys from Thomas & LoCicero, representing the plaintiffs (including the Florida Press Association), have filed papers opposing the NCAA's request for a stay.

On October 14, after Florida's First District Court of Appeal ruled that the records must be disclosed, FSU released its copies of the records. To date, however, the NCAA has not released its copies of the records.

On October 20, the NCAA asked the Florida Supreme Court to expedite its decision on whether it will grant a stay and whether it will review the case on the merits. The plaintiffs have informed the Court that they agree that expedited review is necessary. The Court has not yet ruled on expedited consideration or whether it will grant a stay.

The Florida Supreme Court has designated the case as a high profile case. Filings in the case are available online at: http://www.floridasupremecourt.org/pub_info/summaries/briefs/09/09-1909/index.html.

NCAA must produce public records
Appeals court affirms decision forcing release of documents that state university lawyers reviewed

Any person who holds a public record must produce it upon request, a Florida appellate court has ruled.

Adopting arguments from Thomas & LoCicero lawyers, Florida's First District Court of Appeal on October 1 found that a lower court correctly ordered the NCAA, a private sports organization consisting of most major U.S. universities and colleges, to disclose documents that Florida State University lawyers had reviewed in the course of contesting NCAA sanctions against the school.

Those records include a transcript of a closed-door hearing by an NCAA committee and a response that committee prepared when FSU first challenged the committee's sanctions ruling.

The NCAA had argued it was not subject to Florida's Public Records Act. The trial and appellate courts agreed that ordinary NCAA documents would not be public records. But the documents FSU's lawyers reviewed, the courts found, became subject to the open-records law when those lawyers reviewed them in the course of their work for the public university.

In an effort to keep the documents from public view, the NCAA made the FSU lawyers sign confidentiality agreements, allowed the lawyers to see the documents only on a password-protected NCAA web site, and did not allow the FSU lawyers to make copies. Those steps did not trump the Florida Public Records Act, the courts found.

"The appeal by the University is a matter of public concern," the appellate panel concluded. "It is not transformed into a private matter merely because the documents the University lawyers used to prepare the appeal reside on a computer owned by a private organization."

The Public Records Act, the appellate court noted, requires "every person who has custody of a public record" to allow inspection and copying of that document. "The plain meaning of this statute," the court said, "is that the public records law can be enforced against any person who has custody of public records, whether that person is employed by the public agency creating or receiving the records or not. It makes no difference that the records in question are in the hands of a private party. If they are public records, they are subject to compelled disclosure under the law."

The case was tried by Carol LoCicero and Rachel Fugate of Thomas & LoCicero on behalf of nearly 30 news organizations from across Florida.  Fugate argued the case on appeal.  With her on the briefs were LoCicero, Gregg Thomas, and James McGuire.

Florida courts to allow access to electronic court recordings

Accepting arguments by lawyers from Thomas & LoCicero, the Florida Supreme Court has rejected efforts to conceal electronic recordings of court proceedings.

In a July 16 opinion, the Florida Supreme Court shot down a proposal to exclude "electronic records, videotapes, or stenographic tapes of court proceedings" from the definition of "court records." The proposal would have allowed public access to court-made video or audio recordings of trials and other court proceedings only with a judge's permission.

"Such a provision is overly restrictive and is contrary to Florida's well established public policy of government in the sunshine and this Court's longstanding presumption in favor of openness," the Florida Supreme Court held. Public "access to these recordings should not be denied or left to the unfettered discretion of the trial court."

The Florida Supreme Court criticized a recent, contrary opinion in which Florida's Second District Court of Appeal denied access to a recording of a sentencing hearing in Pasco County, Florida.

For more on the Florida Supreme Court's ruling, see this news article.

Dead wrestler's mother allowed to sue Hustler over photos
The Eleventh Circuit's decision highlights differences in state laws
By Jim Lake

Twenty years after wrestler Nancy Benoit posed nude for a photographer and two years after her murder, a federal appeals court has said her mother can sue Hustler magazine for publishing the photos. The decision highlights differences in how some states treat rights of privacy and publicity.

The case arose because Nancy Benoit allowed a photographer to take photographs and record video images of her while she posed naked in 1987. After the photo shoot, Benoit's mother claimed, Benoit asked the photographer to destroy the photos and video. In fact, Benoit's mother alleged, the photographer retained the video.

Twenty years later, in June 2007, Benoit was murdered by her husband, himself a well-known professional wrestler, who also killed their son and committed suicide. The following spring, Hustler published images from the video with an article about the murders. Her mother sued the magazine. A federal district court dismissed the case. Benoit's mother appealed that dismissal to the U.S. Eleventh Circuit Court of Appeals.

Because Benoit died years before the photos were published, Hustler could not be sued for either of the most common forms of invasion of privacy - i.e., the disclosure of private facts or intrusion. Claims of that nature can be brought only by living individuals. Instead, Benoit's mother, as administrator and personal representative of Benoit's estate, claimed Hustler invaded Benoit's right of publicity. This less common form of invasion of privacy - also known as commercial misappropriation - can be brought in many states after a person's death.

But as the name "commercial misappropriation" implies, this cause of action is intended to provide a remedy if a person's name or likeness is used for a commercial purpose, such as to sell a product or service. The classic example of such a use would be putting a famous athlete's photo on a box of cereal, thus implying the athlete endorses that product. Courts have typically rejected misappropriation claims based upon uses that lack such an implied endorsement. For example, in Tyne v. Time Warner Entertainment Co., 901 So. 2d 802 (Fla. 2005), the Florida Supreme Court rejected claims that the movie The Perfect Storm misappropriated the names and likenesses of a boat captain and crew and their families. The use of names and likenesses in a movie, the court reasoned, did not imply any commercial endorsement of a product or service.

In Benoit's case, however, the appeals court was willing to extend the misappropriation doctrine beyond the advertising context. Although noting that misappropriation means use of a person's name or likeness "for the commercial benefit of another", the court did not explain how or why Hustler's use of Benoit's photos was commercial. If the mere fact that Hustler is sold makes the use commercial, then this decision marks a significant change in the law. Newspapers are sold and daily contain photos of people without their consent. Are those uses commercial? If so, this aspect of the Eleventh Circuit's opinion carries troubling implications for publishers.

Fortunately, the Eleventh Circuit went on to limit its interpretation of the misappropriation doctrine in two respects. First, the court analyzed whether the images were newsworthy - an issue usually addressed in a private facts case. If the photos were newsworthy, the court indicated, their publication would not be a misappropriation. In Benoit's case, however, the court concluded that, despite Benoit's murder, the images were not related to a matter of public concern. The photographs did not relate to her homicide, the court noted, and were taken 20 years earlier. The photographs "were in no conceivable way" related to her murder. Therefore, the court concluded, Hustler could be sued for its use of the photos years after Benoit's death.

Second, the implications of the Eleventh Circuit's opinion are further limited by the fact that Benoit was naked when photographed. The right of publicity, the court stated, attaches "to that which is not open to public observation." Although Benoit allowed the photos to be taken, neither she nor her estate allowed them to be published. Therefore, the court reasoned, Hustler could be said to have appropriated private images of Nancy Benoit without her consent. This private nature of the photos suggests a further limitation on the scope of the court's decision.

Jim Lake is a member of Thomas & LoCicero PL.

Florida sends libel tourists packing
Florida welcomes tourists from around the globe to enjoy its beautiful beaches, world class golf, and mammoth theme parks. Libel tourists, however, are not welcome in the Sunshine State.

On June 24, 2009, Florida Governor Charlie Crist signed into law a mechanism for nonrecognition of foreign defamation judgments. Specifically, the new statute provides that a Florida court need not recognize a foreign judgment in a libel case unless the Florida court first determines that the foreign court's law provided at least as much protection for freedom of speech and press as would be provided by the U.S. and Florida constitutions. The law also allows Florida residents faced with adverse foreign judgments to seek declaratory relief under the law. The new law goes into effect on July 1, 2009, but would also apply to judgments entered prior to that date.

"Libel tourism" refers to the practice of foreign plaintiffs filing defamation lawsuits against U.S. publishers in foreign jurisdictions, where the publishers may have little or nothing more than an internet presence, laws are more plaintiff-friendly, and constitutional protections afforded American publishers are not applicable. Similar laws protect publishers in New York and Illinois. The Florida law is modeled after New York's legislation. A similar law is being contemplated in California.

A federal bill, which would allow U.S. residents to seek declaratory relief even prior to judgment, has been introduced in Congress the past several legislative sessions but has not become law. The 2009 version, titled the "Free Speech Protection Act of 2009," has been in committee since early March.

Thomas & LoCicero Attorneys Selected as Super Lawyers and Rising Stars
June 2009
Florida Super Lawyers magazine is honoring four attorneys from Thomas & LoCicero, PL. The publication named Gregg Thomas and Carol LoCicero as "Florida Super Lawyers" and named Deanna Shullman and Rachel Fugate as "Rising Stars." The attorneys were nominated by their Florida peers, who submitted names of lawyers they personally observed in action. The magazine's research department evaluated the nominees based on twelve professional factors. The Rising Stars were selected from the resulting group. Rising Stars must either be under age 40 or must have practiced law for ten years or less. To select the "Super Lawyers," a blue ribbon panel of attorneys did a second round of evaluation and selected lawyers, based on firm size, to be named "Super Lawyers." Attorneys do not pay or make any purchase to be listed. Only 5% of Florida Lawyers can be named Super Lawyers and only 2.5% can be named Rising Stars.

Thomas & LoCicero PL is a Tampa-based law firm with offices in Tampa, Ft. Lauderdale and New York City. The firm's practice areas include First Amendment and media law, commercial litigation, trademark, copyright, online publishing, and advertising.

Thomas & LoCicero attorneys contribute to Supreme Court ruling abolishing false light tort in Florida.
The Florida Supreme Court has rejected the false light invasion of privacy tort. In Jews for Jesus, Inc. v. Rapp, Case No. SC06-2491 (Fla. Oct. 23, 2008) (posted at http://www.floridasupremecourt.org/decisions/2008/sc06-2491.pdf), the five participating justices unanimously agreed that false light is largely duplicative of defamation and poses an unnecessary threat to freedom of speech. The decision means that lawsuits alleging false speech will be subject to well-established principles of defamation law and not the amorphous tort of false light.

The same day as its decision in Rapp, the Florida Supreme Court rejected an $18 million judgment in another false light case. In Anderson v. Gannett Co., Case No. 06-2175 (Fla. Oct. 23, 2008) (posted at http://www.floridasupremecourt.org/decisions/2008/sc06-2174.pdf), the Court held that its decision in Rapp foreclosed a false light claim by a paving company executive against the Pensacola News Journal.

Four members of Thomas & LoCicero are among Florida’s “Legal Elite,” according to the 2008 listing in Florida Trend magazine.
Gregg Thomas and Jim McGuire were voted elite lawyers in the area of commercial litigation. Jim Lake and Carol LoCicero were honored in the area of intellectual property rights.

The "Legal Elite" are chosen in balloting open to all in-state members of The Florida Bar, the magazine's July issue reported. Lawyers were asked to name attorneys whom they hold in highest regard and have worked with or would recommend to others. After more than 18,051 votes were cast, the magazine named as elite practitioners fewer than two percent of Florida's approximately 61,500 active in-state lawyers.

This is Florida Trend's fifth year ranking Florida's top attorneys.

Gregg and Carol were also two of only four attorneys honored as "Florida Super Lawyers" in the area of First Amendment, Media, and Advertising Law. Super Lawyers magazine is published by Minneapolis-based Law & Politics.

Deanna K. Shullman named Vice-Chair of the Media & Communications Law Committee.
President-elect of the Florida Bar, John G. White, has appointed Deanna Shullman Vice-Chair of the Media & Communications Law Committee for the Florida Bar. Her term as Vice-Chair begins July 1, 2008 and runs through June 30, 2009. The Media & Communications Law Committee provides bar members a forum for discussing free speech and communications law issues. The Committee also provides valuable education to Florida Bar members, the media, and the public through seminars and conferences. The Committee also plans the annual Florida Bar Media Awards and updates the Reporter's Handbook, which is available on the Florida Bar's website (http://www.floridabar.org/). Deanna Shullman is not the first member of Thomas & LoCicero to serve as an officer of the Committee. Gregg Thomas and Carol LoCicero are both past chairs of the Media & Communications Law Committee, and Rachel Fugate's term as Chair of the Committee ends June 30, 2008.

Thomas & LoCicero lawyers Recognized as Best in America
Gregg D. Thomas and Carol Jean LoCicero will both be listed among the best First Amendment attorneys in the country in the 2008 edition of The Best Lawyers in America. The 25th anniversary edition of the highly-regarded publication will name both Mr. Thomas and Ms. LoCicero among the best media lawyers, as chosen by a rigorous survey of their peers in the legal profession. They will be two of only fourteen First Amendment Lawyers listed from Florida. The Best Lawyers in America is noted as the top guide to legal excellence in the United States, because lawyers are nominated by their peers, are carefully screened, and do not pay or make any purchase to be listed. In addition, the peers of both Mr. Thomas and Ms. LoCicero have awarded them "AV" ratings, the highest ratings assigned by the Martindale Hubbell legal directory.