From the Legal Hotline (1-877-NEWS-LAW)
Q. I’m a reporter with a local newspaper and currently working on a story regarding a local government official recently removed from his position at the city. I wanted to contact you regarding a redaction in a public records request and to see if the redaction was legally merited. I specifically want to clarify whether a redaction in a document pertaining to an investigation of the official’s removal has legal grounds. Specifically, it looks like the name of the citizen complaining about the terminated city employee in the investigation record has been redacted. Do you think the redaction is legal?
A.In general, complaints of misconduct filed with an agency (e.g., a municipality) against an agency employee and all information obtained pursuant to an investigation by the agency of the complaint is confidential and exempt until the investigation ceases to be active, or until the agency provides written notice to the employee that the agency has either concluded the investigation with a finding to proceed or not to proceed with disciplinary action. Section 119.071(2)(k), F.S.
It appears that the city relied on 119.071(2)(k) to redact the information. As a result, you should ask the city to confirm that there is an ongoing agency investigation of the employee. (That appears to be the case since the employee has been terminated.) If the firing has ended the “investigation,” then the records are no longer confidential and exempt.
If the above is not the basis for the redaction, the custodian is required to state the basis, and, upon request, state in writing and with particularity the reasons for the conclusion that the record is exempt. Section 119.07(1)(f), F.S.
Q. One of our towing company clients indicates that due to a change in the state statute they are moving away from paper-published ads. Can you confirm what the law changes on 7/1/24 was? Does it just impact towing companies? I knew there were some proposals – but I hadn’t heard any firm changes had been approved.
A. The email is correct. We fought exclusion of newspaper notice for towing liens (included in a large industry bill) during the 2024 session with allies and from various angles and with reach out to leadership, but we were not successful. These bills allow notification on a “publicly available website maintained by an approved third-party service.” The third-party service also must “electronically report to the agency via an electronic data exchange process using a web interface” the lien sale and vehicle information. See House bill 179.
Q. Can you send me the rulings that cite a publisher’s first amendment rights to deliver a newspaper in a planned community with public street? If you have an official FPA recap/summary about these rulings, that would also be helpful.
We are targeting for newspaper distribution a master planned community where few of the streets are gated. Reviewing the covenants, conditions and restrictions of the three HOA communities we do not see any restriction regarding distribution of newspapers, advertising circulars or door hangers, and do not anticipate any problems with home delivery.
However, my experience with HOAs is that board members are sometimes resistant to home delivery and push back by claiming their HOA docs restrict distribution of all advertising material and view a community newspaper no differently than a pizza flyer.
The only restrictions I’ve found in the HOA docs are for signs and newspaper boxes but I don’t believe signage applies to newspapers, and we will seek approval from the HOAs for newspaper boxes. What are your thoughts?
A. I am attaching the NNA brochure that discusses mainly news racks but also includes (starting on page 28) a discussion of delivery of free newspaper and provides several cases.
In general, the distribution of newspapers can have freedom of speech, First Amendment, protections even if they are distributed inside a private community with an HOA (gated or not). Although the First Amendment typically applies to government action, it has been extended in certain limited circumstances to reach private individuals and property when the individuals and land are the functional equivalent of a municipality or of a public forum. These analogous cases would be those involving trespass actions against individuals exercising their free speech rights–such as passing out religious leaflets or campaigning door to door–in a private community or apartment complex.
There are few cases involving newspapers. An older California case did extend to distributing unsolicited newspapers in a large private retirement community where the community had already permitted the distribution of another unsolicited newspaper to residents (see Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816 [182 Cal.Rptr. 813]).
As a practical matter, most newspapers maintain that they have the right to distribute in private communities until told by the individual homeowner that they cannot. As you are aware, some newspapers notify recipients that they can be placed on a do-not-throw list if they do not want the paper. That way, if the HOA or homeowner complains, the newspaper can tell them there is such a list set up and it has been given to the independent contractor carrier to honor.
The HOA rules in this case prohibit “signs, advertisements, billboards, solicitation or advertising structures of any kind…” This is a bit confusing to me—can the language be read to ban “solicitation” in general or just “solicitation structures” like signs and billboards? If it’s read broadly to ban solicitation, I would argue a newspaper should not be categorized as solicitation pieces (like a pizza flyer as you note) just because it is free–there is no subscription being “solicited.” I don’t think that merely carrying third party ads in the newspaper makes the newspaper the solicitor of those goods and services. If you get any push-back on delivery, let me know.
Q. It’s your favorite newspaper guy. We have an advertiser that likes to run tiny artistic ads in our classifieds section. A series she wants to publish include the statue of David which is a nude. I’ve attached a pdf of the actual size it would appear in the newspaper. I just wanted to make sure that as art it is legally okay that it depicts the image of a nude male.
A. I have read stories about the controversy surrounding the use of David-like images at a local charter middle school, but I don’t think the image of the statue itself is illegal. Rather, my question would be whether the advertiser has the right to commercially use this particular image that appears to be an artistic representation of the David statue along with another image of a Roman soldier/Caesar. If the advertiser created the image from their own artistic endeavor (colors, image juxtaposition, formatting, etc.), it would probably be ok. But if it is someone else’s creation they copied from the web, then there might be copyright concerns over its use and permission from the creator might be required.
This is more nitpicky but photographs of iconic images like the David statute might be protected from commercial use without permission. It seems like this should not be of concern, but I know that there are companies (e.g., Getty Images) that have ownership rights to images (even photographs of iconic images like this), and they scrape websites for use of them, and send demand letters where the use is unauthorized.