Florida law punishing internal-investigation leaks violates First Amendment

• A law making internal-investigation leaks a crime is a content-based restriction on speech, the Eleventh Circuit ruled, paving the way for a newspaper publisher’s civil suit against a former Key West police chief.

March 25, 2005 — A Key West weekly newspaper publisher who was arrested for reporting details of a complaint he filed against a local police officer may proceed with his civil suit against the city, a federal appeals court in Atlanta ruled Tuesday.

The U.S. Court of Appeals (11th Cir.) held that a Florida law prohibiting leaks by any participant in an internal police investigation, including the person who filed the complaint, violates the First Amendment.

By “proscribing speech critical of government officials, [the law] purports to regulate speech which ‘lies near the core of the First Amendment’ without a compelling justification for doing so,” Judge Stanley F. Birch Jr. wrote for the three-judge panel.

Dennis Reeves Cooper, editor and publisher of Key West The Newspaper, published a series of articles in May and June 2001, claiming that Key West Police investigator Robert Christensen failed to investigate a citizen’s complaint of perjury against another officer. As a result of the information he gathered, Cooper subsequently filed his own complaint against Christensen with the Florida Department of Law Enforcement. The department notified Cooper that it had instructed Key West’s then-Police Chief Gordon Dillon to look into the matter and report back within 45 days.

In June 2001, Christensen reported in his newspaper that he had filed a complaint against Christensen and that the department had given Dillon 45 days to investigate it. One week later, Cooper published a commentary recounting his allegations against Christensen and urging Dillon to “tell the truth . . . and let the chips fall where they may.” That same day, Dillon obtained a warrant for Cooper’s arrest for allegedly violating Florida law chapter 112533(4), by naming Christensen as the target of the investigation and stating that Dillon had 45 days to respond to the department.

The law makes it a misdemeanor for anyone who participates in a law enforcement agency’s internal investigation to disclose any information learned as a result of the investigation before it becomes public record. With the help of the Florida chapter of the American Civil Liberties Union, Cooper sued Dillon for enforcing the law, claiming it imposed an unconstitutional prior restraint on his speech.

“This was just a case of a publisher publishing the truth,” Cooper told The Associated Press.

A federal district judge dismissed Cooper’s suit in February, finding that the statute was content-neutral and not unconstitutional. Cooper appealed to the Eleventh Circuit.

The appeals court ruled that the statute was not a prior restraint because it “did not silence Cooper before he could speak.” Rather, the law aimed to stifle a particular kind of speech, pertaining to “pending investigations of law enforcement officers,” the court ruled. As a content-based restriction on speech, the law therefore had to be narrowly tailored to promote a compelling government interest.

The court found that the three state interests cited by Dillon — shielding witnesses from influential information, protecting the reputations of wrongfully accused officers, and preserving the privacy interests of the participants in the investigation — were not sufficiently “compelling” to justify the law’s infringement on free speech. Because it deemed the law unconstitutional, the court declined to analyze whether the statute was narrowly tailored.

The court determined that through Dillon’s actions, the city of Key West had adopted a policy that deprived Cooper of his constitutional rights and is therefore liable to Cooper under federal law.

(Cooper v. Dillon, Media Counsel: Randall C. Marshall, ACLU, Miami) — KK

Related stories:

• Judge throws out publisher’s First Amendment lawsuit (02/13/2004)
• ACLU challenges arrest of Key West newspaper publisher in court (02/06/2002)
• Publisher faces criminal charges over report on police investigation (06/26/2001)

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