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Judge throws out publisher's First Amendment lawsuit

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Judge throws out publisher’s First Amendment lawsuit

  • A Florida publisher will appeal a federal judge’s ruling that a state statute prohibiting publication of information about police internal affairs investigations not yet publicly released is constitutional.

Feb. 13, 2004 — A federal judge on Tuesday threw out the First Amendment lawsuit of a journalist in Key West, Fla., who sued the city in 2001 after being arrested for printing information about an ongoing internal affairs investigation.

Judge Lawrence J. King of U.S. District Court in Miami ruled Feb. 10 that the statute used to charge Dennis Reeves Cooper, editor and publisher of the weekly Key West The Newspaper, is constitutional, despite a federal magistrate’s November 2003 recommendation that the city be found liable for violating Cooper’s First Amendment rights.

Cooper was arrested by former Police Chief Gordon “Buz” Dillon in June 2001 for violating an obscure state statute. According to the law it is a misdemeanor for anyone “who is a participant in an internal investigation, including the complainant” to disclose information about the investigation “before such complaint, document, action or proceeding becomes a public record.”

Cooper was arrested after publishing a series of articles about an internal police investigation, sparked by a complaint Cooper himself filed. He charged that Key West internal affairs investigator Robert Christensen failed to investigate a perjury complaint against another officer.

While no criminal charges were ever brought against Cooper, the American Civil Liberties Union of Florida in December 2001 filed a lawsuit on his behalf, as well as a request for an injunction to prevent future use of the statute.

“Nowhere in America should a publisher be arrested for printing the news,” said James K. Green, Cooper’s lead attorney and former president of the ACLU. “Cooper was arrested for doing what good journalists do every day — reporting the truth.”

Federal Magistrate John J. O’Sullivan recommended late last year that the statute be deemed unconstitutional and that the city be held liable for violating Cooper’s rights. The statute used to arrest Cooper was also declared unconstitutional by, among others, a federal judge in 1990, but it was reworded soon thereafter by lawmakers.

King rejected both of O’Sullivan’s recommendations, according to court documents.

The statute in question serves three substantial government interests, King said in his order. It protects the integrity of investigations, the reputation and public perception of law enforcement officers, and the privacy interests of individuals involved in the investigation, including the complainant, he said.

However, Green noted that King’s ruling did not discuss how the statute violates the First Amendment.

“The statute allows police chiefs to disclose the same information on an investigation which [Cooper] was prohibited from disclosing,” Green said.

The ACLU will appeal the ruling to the U.S. Court of Appeals in Atlanta (11th Cir.), Green said.

Key West City Manager Julio Avael requested and received Dillon’s resignation last month, six months before his contract expired, reported.

(Cooper v. Dillon; Media Counsel: James K. Green, Esq., West Palm Beach, Fla.) MG

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