From the Legal Hotline (1-877-NEWS-LAW)

Q. Our city recently passed an ordinance designed to “designate the degree of public access within city-owned, controlled, and leased property according to the purpose and use of areas within such property.”

It is designed to do a couple of things: prohibit sleeping or similar actions by those who are homeless within city owned, controlled or leased buildings, and to prohibit recording in most areas of the city’s public buildings.

In particular, the provisions restrict recording to, pretty much, only the council chambers or other spaces where council is meeting:

The city council chambers, city council offices and lobby, and conference rooms in city hall and any other enclosed city-owned, controlled, and leased property, are hereby declared to be nonpublic forums unless or until a public meeting is convened in such areas pursuant to public notice.

Except within the city council chambers, conference rooms, and other locations in which a public meeting is being conducted pursuant to a public notice, it shall be unlawful and a violation of this ordinance, to record video and/or audio within city-owned, controlled, and leased property, without the consent of all persons whose voice of image is being recorded….”

Our question: Is this consistent with current case law? Does the ordinance pass constitutional muster?

A. The ordinance in question is similar to a City of Punta Gorda ordinance addressed by a 2019 Florida federal court case and would likely be analyzed in a similar fashion.

In the Punta Gorda case, the City’s ordinance prohibited video and sound recording without consent of those being recorded. The prohibition applied to city hall and the annex [with an exemption for “public meetings.”]

To test the ordinance, Sheets, wearing a body camera, walked into the Punta Gorda City clerk’s office, and asked for a copy of the ordinance. The clerk said she did not consent to being recorded but gave Sheets a copy of the ordinance and he left City Hall. He then went to the police station, where an officer issued him a trespass warning and directed him not to return. Thereafter, Sheets filed a complaint alleging the ordinance violates the First Amendment, specifically “the right to gather information about what public officials do on public property, and specifically the right to record matters of public interest.”

The court said that individuals have a right to record City employees while they worked in City Hall but that the City can impose restrictions on such private speech. Those government restrictions depend on the type of forum in question, which in this case the parties agreed was a “limited public forum.” Speech in this type of forum is less scrutinized than more open public forums like “designated public forums” such as parts of a city park. These “limited public forums” are “not open to the public at large for discussion of any and all topics…and can be set up to grant only selective access to the classes for which it is reserved.” Such forum restrictions need only be “reasonable” and “viewpoint neutral.”

The court proceeded to analyze whether the ordinance met these two requirements, finding that it did.

First, the ordinance was reasonable because it restricted recording only without the consent of those being recorded. If someone violates the ordinance and refuses to stop recording, the City considers that person as “disruptor of City business.”

Second, the ordinance was viewpoint neutral because it did not target any viewpoint, ideology, or opinion but rather regulated conduct of visitors equally.

The ordinance in this case is similar to Punta Gorda’s in that both restrict recording within city hall “without the consent of those being recorded” with exceptions for public meetings. If someone violates the ordinance and refuses to stop recording, both ordinances consider that person a disruption of city business, and the city manager or designee can “require any person who so refuses to immediately leave the premises.” If they refuse, then they shall be considered a trespasser and law enforcement can be called.

In other words, both ordinances seem to apply only if someone from city manager’s office asks the recorder to comply with them. [I would also note that the current ordinance doesn’t really provide any enforcement mechanism. It is not a crime to violate the ordinance, there is no fee attached, and the ordinance doesn’t even say if the recorder can be kicked out of the building.]

As for viewpoint neutrality, the ordinance here appears to be neutral and under the related “unbridled discretion doctrine” doesn’t give government officials “unbridled discretion over whether to restrict recordings.”

I think based on at least this case, the current ordinance, like the Punta Gorda ordinance, on its face arguably passes First Amendment review.

Q. We received a request from a citizen asking if she can run a guns-for-sale classified ad. In Illinois we could only run ads from registered dealers who met certain licensing requirements. Is the same true down here in FL? I’m thinking we can’t accept it due to potential liability. Please advise.

A. There are no statutes or cases which would prohibit the running of classified advertisements for guns in a newspaper. That said, I know some newspapers have internal policies not to run certain firearm ads. For example, some of the larger national newspapers do not accept advertisements for firearms or ammunition sold by mail-order, online or at gun shows, nor any advertisements for handguns, though they will accept ads for retail rifle sales, or for antique guns sold at auction or retail. Whether you run the ad will be your decision based on your own internal policies.

Q. Do you happen to have a standard template enabling an outside publication to use our content on a one-time basis?

A. I don’t have such a form, but here is some basic language I cobbled together using some draft forms I had on hand. If it’s helpful, please edit as you see fit.

Q. I have a legal question regarding the use of AI tools – most notably AI Copilot Image Creator. It would be very handy if we could publish art we create using AI tools in the paper without any copyright issues. I believe this is an issue that has already been resolved but wanted to be safe and hope you’re able to help. Are we legally good if we use the art we create as our own?

A. Generative AI is a new technology, and the courts are just starting to grapple with all the legal issues associated with its use.

AI image generators like AI Copilot are trained on vast datasets that include copyrighted material and can present potential copyright issues because the AI may generate images that are “substantially similar” to existing copyrighted works, leading to infringement claims.

A copyright owner can establish infringement if the AI output is “substantially similar” to their copyrighted work and the AI had access to that work during its training.
While Microsoft pledges to defend customers against these claims, users remain responsible for ensuring their output doesn’t violate third-party rights, as they bear the legal liability if an image infringes.

A key concern in these matters is who owns the copyright in the original (unaltered) work, and when they licensed the work, did they grant the right to alter or revise it? In other words, even if an alteration might not violate the copyright laws, it might breach the license agreement with the author of the image or photo.

Similarly, if the art you create from AI tools depicts a person or persons, what rights were granted by the model posing in the photo? Did they agree that their image could be used even if their attire/appearance was changed? If not, using the image could violate their rights of publicity.

Until the law is clearer, my rule of thumb would be to treat AI-generated images and photographs like you treat photos in general, that is, with caution. I would steer clear of photos you are not authorized to use or where there is uncertainty about ownership.