Roundup: Federal appeals panel won’t halt Virginia minute-of-silence law

Wednesday, September 6, 2000

A divided federal appeals court refused yesterday to issue an injunction blocking a state law that requires public school students to observe a minute of silence. The 2-1 ruling by a 4th U.S. Circuit Court of Appeals panel came on the opening day for most Virginia public schools. The court gave no reason for its decision. The law, which took effect July 1, requires all school districts to impose a minute of silence so students can meditate, pray or engage in any other silent activity. The American Civil Liberties Union of Virginia filed an appeal on Sept. 1 on behalf of eight students who said the new law violates their First Amendment rights. U.S. District Court Chief Judge Claude Hilton had declined on Aug. 30 to issue the injunction, saying that students would suffer no irreparable harm if the law remained in effect until a final decision is made. One student plaintiff, Jordan Kupersmith, 16, has already been given detention for walking out of class during the minute of silence. A hearing is set for Sept. 8 before Hilton in Alexandria. Associated Press

Georgia: City's performance ordinance raises free-speech questions

Street artists in Savannah must now pay to perform and could get the hook if city officials decide they're not entertaining. City officials say the new performance rules, which took effect Sept. 1, are needed to keep an increasing number of street performers from turning heavy tourist-traffic areas into a free-for-all of free expression. But the American Civil Liberties Union says the city went too far by drafting rules that restrict where artists can perform, how long they can perform and that give city officials the power to decide which artists are legitimate. “There are not similar rules for those handing out leaflets or those protesting or making speeches,” said Gerry Weber, legal director for the Georgia ACLU. “You don't receive less protection under the Constitution just because you sing it rather than say it.” The ordinance requires street performers to pay $25 annually for a permit. It also bars them from asking for money other than by posting a small sign, limits performances to a few designated areas and says artists must keep a distance of 50 to 150 feet from one another. The ACLU wants to work with city officials to change the ordinance. Joseph Shearhouse, Savannah's director of Leisure Services, said that if the ordinance is in violation of the First Amendment, city officials “will do whatever we can to fix it.” Shearhouse said rules came mostly at the request of performers. Associated Press

New Jersey: Judge dismisses N.J. officers' suit against ABC

A judge has dismissed a $3 million lawsuit filed against ABC by three patrolmen who claimed they were unfairly portrayed in a show about racial profiling. Superior Court Judge Bryan Garruto ruled Aug. 28 that the officers failed to prove ABC's “PrimeTime Live” acted with malice when it aired a hidden-camera traffic stop. The judge backed a key allegation of the news program, asserting that the officers, who are white, had no legal basis to search a Mercedes-Benz luxury car occupied by three young black men. Jamesburg patrolmen Louis Hornberger, Robert Tonkery and James Mennuti charged that ABC wrongly portrayed them as racist in a Nov. 27, 1996, report. Titled “Driving While Black,” the report said police used race as a factor in stopping the Mercedes as it cruised through Jamesburg. The officers denied any wrongdoing, asserting the network had set them up and broadcast a biased account of the traffic stop. ABC said it was not improper to hide a camera and a microphone in the Mercedes to record the search. Neville Johnson, an attorney representing the officers, said an appeal is likely, based on “a plethora of misconduct by ABC.” Associated Press

New Mexico: Judge bars media from custody hearing for overweight toddler

Attorneys representing the news media have appealed a judge's ruling barring reporters from an Albuquerque custody hearing involving an overweight 3-year-old girl because of the intense news coverage. Children's Court Judge Tommy Jewell kicked the media out of yesterday's hearing, saying “the court has basically lost control” of the case due to the publicity it has gained. Jewell also said the state and Anamarie Martinez-Regino's family had agreed to a gag order. The girl's parents went to court yesterday hoping to regain custody of their daughter, who was taken by the state Aug. 25. At the time, she was 120 pounds and 3 1/2 feet tall. Doctors tested Anamarie for a variety of conditions, but court documents don't specify the cause of the weight gain and rapid growth. Media attorney Martin Esquivel appealed the decision to the state Supreme Court today, asking that the transcript of yesterday's hearing be made available, that all future proceedings be open and that the gag order be lifted. “If there is a gag order, why was the secretary of (state) Children, Youth and Families on the 'Today' show this morning?” Esquivel said outside court yesterday. Esquivel is representing the Associated Press, the Albuquerque Journal, The Albuquerque Tribune, KRQE-TV and KOAT-TV. Associated Press

Virginia: Lynchburg school board to censor illustration in anatomy textbook

The Lynchburg City School Board has voted to censor a science textbook because it includes a picture of a woman's vagina. Board members had agreed to purchase the anatomy and physiology textbooks only if the illustration was removed. School officials will black out, tear out or place some sort of unremovable label over the picture before it is given to students. “I might have preferred that the publisher pick a less startling illustration of the female genitalia,” said board member Julie Doyle, adding that she did think the information was important to have in the classroom. A committee of parents, teachers and students had earlier approved the science text. Brenda Erickson, a teacher on the committee, said the textbook was the best she had ever seen. “It's interesting. It's informative. To focus on one or two illustrations, you're missing the point,” she said. The 200 books, minus the vagina picture, will be available in the next few months for use in biology courses. Associated Press

Kentucky: Attorney general orders release of some records in murder-suicide case

The Barren County sheriff improperly made a blanket denial when asked for records of a grisly murder-suicide involving two neighbors, an attorney general's opinion says. Some records should have been released when one victim's mother requested them under the state's Open Records Act, the opinion said. Others, including photos of one of the dead and a recording of a frantic 911 call by his wife, were properly withheld, the opinion said. Privacy rights of the woman, herself a victim of the crime, outweighed public interest in the materials, Assistant Attorney General Amye L. Bensenhaver said. The attorney general's opinion has the force of law in public-records cases. The case began Feb. 21, when Joey P. Sowers shot and killed his neighbor, Shane Smith. Sowers abducted Cynthia Smith, the dead man's wife, forced her into the home of another neighbor, then killed himself in her presence. Sowers' mother, Roberta Sowers, had asked Sheriff Barney Jones for a copy of “the entire report, including pictures and any other documents,” from the investigation. Kentucky law allows authorities to withhold a record containing personal information if its release would be a “clearly unwarranted invasion of personal privacy.” Cynthia Smith's privacy interests don't outweigh the public's right to inspect the remaining, more mundane portions of the file, such as an investigator's notes, crime scene diagram, a witness statement and lab reports, the opinion said. Associated Press

Wisconsin: Governor's spokesman defends memo published by paper

The governor's chief spokesman on Sept. 3 defended a memo he wrote instructing state public relations officers to track how much time they spent answering records requests by the Milwaukee Journal Sentinel. The newspaper published Kevin Keane's June 2 e-mail on Sept. 3 along with a story about how taxpayers spend $9 million a year on salaries for information handlers representing elected officials and other government employees. Keane's memo, obtained from an unnamed source, alerted the public relations officers that the newspaper was planning a story about their salaries and responsibilities. The main reason for the memo was to show the PR officers he would support them and fight for them if they came under attack, Keane said. He added that if there weren't so many requests from the paper for public records, at least one salaried position could be eliminated in his office. Journal Sentinel managing editor George Stanley said some government PR officers like to control media access to public records. Associated Press

Oklahoma: Poll finds public supports open records

Oklahomans overwhelmingly favor public access to government documents at a minimal cost, a new poll shows. The poll, sponsored by The DailyOklahoman, found that 97% of Oklahomans think they should be able to see the activities their government undertakes and 89% said the government should not be able to sell public records to the public for a profit. The Oklahoma Open Records Act limits the cost of getting copies of documents that are in the public interest to 25 cents per page. But in a recent open-records survey by the Oklahoman and the Tulsa World, a reporter who visited the Pauls Valley Police Department was charged eight times the amount allowed by law. Another reporter was told that obtaining a copy of the Oklahoma City Police Department radio log would cost several thousand dollars. Oklahoma City Police Chief M.T. Berry said the state open- records act allows the department to charge businesses a fee equal to the amount of work it would take to process their request. But the act exempts all but copying costs if a newspaper or broadcast organization requests records for news purposes. Berry said the records clerk misunderstood that. Associated Press Related story

Mississippi: Gag order issued in murder trial

Ernest H. Avants, a man federal prosecutors believe killed a black farm worker three decades ago, won't have details of his pretrial hearings made public. Government attorneys asked for, and received, a seal on the hearings Sept. 1 in federal court in Jackson. Avants was indicted in June by a federal grand jury in the slaying of Ben Chester White on June 10, 1966, in a plot that may have been designed to bring Martin Luther King Jr. to Mississippi so he could be killed. Avants was acquitted in a Mississippi court in 1967. Federal prosecutors, who claimed jurisdiction after learning that the slaying took place in the Homochitto National Forest, said the jury in that trial was never informed that Avants had confessed. A hearing in federal court to suppress Avants' original confession is still continuing. And because of the seal, the decision from that hearing won't be known until a jury is seated in the federal trial, which is set for Nov. 7. Associated Press

Obits: Theodore Trautwein, judge in landmark press case, dies at 80

Theodore W. Trautwein, a New Jersey judge who jailed a reporter in 1978 for refusing to turn over his notes, died Aug. 17 in Hollywood, Fla. He was 80. In the celebrated case that tested the boundaries of press freedom and fair trials, Trautwein found New York Times reporter M.A. Farber guilty of criminal contempt and sentenced him to six months in prison in 1978. He also fined the Times $5,000 per day until Farber's notes were turned over as evidence in a murder case. The trial involved Dr. Mario E. Jascalevich, a surgeon who was accused of killing three of his patients by injecting them with lethal doses of curare, a muscle relaxant. Farber wrote front-page articles that led the case to be re-opened after the Bergen County prosecutor's office had abandoned the case 10 years before. Farber actually spent 40 days in jail, which is one of the longest jail times served by an American reporter for not disclosing his sources. Though he answered questions from lawyers defending the surgeon, Farber refused to turn over thousands of pages of notes demanded by the defense, saying the First Amendment compelled him to protect those who had spoken to him in confidence. The New York Times

… Bruce Giles, 53, ex-leader of press group

Bruce Giles, executive editor of TheTuscaloosa News and former chairman of the Freedom of Information Committee of the Associated Press Managing Editors association, died on Aug. 31 in Tuscaloosa, Ala. He was 53. Giles had also served as managing editor of The Ledger in Lakeland, Fla., and the Sarasota (Fla.) Herald-Tribune, all owned by The New York Times Co. The New York Times

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