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Federal Magistrate Rules Police Violated Rights of Key West Journalist Arrested for Making Critical Statements
November 12, 2003
KEY WEST ? In a victory for free speech, a federal magistrate today struck down a law that makes it a crime to publish facts relating to active police investigations in a case brought by the American Civil Liberties Union of Florida on behalf of a newspaper reporter who was arrested under the so-called "gag law."
In his 23-page ruling, U.S. Magistrate John O'Sullivan ruled that Key West Police Chief Gordon Dillon violated the First Amendment rights of Dennis Cooper, the outspoken editor of the weekly Key West The Newspaper, who was arrested on June 22, 2001 for publishing stories that were critical of the Key West Police Department.
Key West Police Chief Gordon Dillon cited Florida statute 112.533 to arrest Cooper. The statute makes it a criminal misdemeanor for anyone involved in an active internal police probe - including the person who filed the complaint - to publicize information about the investigation. The statute was declared unconstitutional in 1990 by U.S. District Court Judge William J. Zloch, who found that the statute "chills free speech and chills the expression of truthful information." But the Florida Legislature changed the language slightly, technically making it a new statute, which Dillon used to arrest Cooper.
Although the criminal charges against Cooper were ultimately dropped, the ACLU of Florida filed a civil lawsuit seeking compensation for Cooper's illegal arrest and to prevent the use of the unconstitutional statute in the future. The magistrate did not find Police Chief Dillon personally liable, but he ruled that the city should not be "exonerated for the violation."
"Nowhere in America should a newspaper editor be arrested for printing the news," said Randall Marshall, Legal Director of the ACLU of Florida.
As editor of the weekly Key West The Newspaper, Cooper wrote numerous investigative stories that suggested that the police department was covering up corruption among its officers. He gathered much of the information by filing a public records request and reviewing documents in a closed police file.
When the police department failed to adequately investigate the allegations of misconduct, Cooper filed a complaint with the Florida Department of Law Enforcement (FDLE). FDLE then asked the police chief for a response to the complaint and notified Cooper of its request to the chief.
"I couldn't get any answers from the police department so I went to the FDLE," said Cooper, who founded the independent newspaper in 1994. "Some say that's breaking the rules for journalists, but my attitude is, why bother to publish a newspaper if you're not going to report the facts, uncover the truth, and really make a difference?"
Shortly after the FDLE requested that Chief Dillon provide additional information about the alleged police misconduct, the Police Chief personally signed an arrest warrant that claimed Cooper's statements in the press could "substantially jeopardize the success and completion of the active investigation." The arrest came on the same day Cooper published yet another article about the on-going investigation brought about by his complaint to the FDLE.
Less than two weeks after the arrest, State Attorney Mark E. Kohl issued a memo declining to prosecute, in which he cited Hickox v. Tyre ? the 1990 case in which Judge Zloch ruled in favor of William Hickox, who was threatened with an arrest by the Juno Beach Police Department if he filed a complaint about a "confidential" police investigation.
Cooperating attorneys: Michael Barnes, of Key West, James Green, an ACLU cooperating attorney in West Palm Beach and Randall Marshall, ACLU of Florida Legal Director.
