Fla. judge rules student TV station need not hand over videotape

FLORIDA — The news director of the University ofFlorida’s student television station avoided subpoena when a state judgeruled Jan. 10 he was not required to turn over the videotape of an interviewrequested by the Florida Bar Association.The state association, whichoversees attorneys, was seeking a copy of an interview taped in July 2001 with aFlorida-licensed attorney who allegedly made statements about pendinglitigation. The bar said the comments violated ethical obligations under therules of the Florida Bar. WUFT, the university’s student TV station, tapedthe interview and aired about 5 minutes in one of its broadcasts. NewsDirector G. Stuart Smith, on behalf of WUFT, declined to provide the tape,asserting journalistic privilege under the Florida Shield Law. The statute,which applies to both confidential and non-confidential material, states thatprofessional journalists are not required to disclose information obtained whileactively gathering news. The privilege can be overcome only if all threeof the following can be proven: The information sought is relevant and materialto unresolved issues in this case; the information cannot be obtained fromalternative sources; and, a compelling interest exists requiring disclosure ofthe information. Circuit Judge Larry G. Turner ruled that the tape wasboth “relevant” and “compelling.” However, he said thebar failed to prove that no alternative sources were available within themeaning of the privilege. Although WUFT was the only group that taped theinterview, at least two others witnessed the event.“The FloridaBar has identified at least two alternative sources that can testify as totheir firsthand observations of the interview contained on the videotape,”he wrote. “Therefore, the information can be obtained from alternativesources, and the second prong of the test is not met.”Ken Marvin,attorney for the Florida Bar, said the alternative sources offered conflictingstories, making the videotape the only true account of what happened. TheFlorida Bar has until Monday to appeal, but Marvin said he does not plan tofile.In an earlier hearing in front of a Florida Bar GrievanceCommittee, the attorney association argued that because WUFT is a student-runtelevision station and because the tape was filmed by a student journalist,journalistic privilege did not apply. However, since the subpoena was issued tonews director Smith, a full-time, paid employee of WUFT, the argument becameirrelevant.Under the statute, a professional journalist is “aperson regularly engaging in collecting, photographing, recording, writing,editing, reporting or publishing news, for gain or livelihood, who obtained theinformation sought while working as a salaried employee of, or independentcontractor for, a newspaper, news journal, news agency, press association, wireservice, radio or television station, network or newsmagazine.”According to Deanna Shullman, attorney for theUniversity of Florida, if the subpoena had been issued to a student journalistrather than a full-time employee of WUFT, the judge’s decision could havebeen drastically different.“If they had issued it to the studentjournalist, we would have faced a very serious question here in Florida for thefirst time about whether student journalists can invoke the protection of aprivilege that requires that you’re engaged in the business of gatheringnews for ‘gain or livelihood,’” Shullman said. She added thatif it had been the case, she would have argued that student journalists aregathering news for gain, even if they are not compensated.Turner seemedto imply that student journalists would be protected under the shield law whenhe stated in his decision that “the videotape was obtained while gatheringnews.” WUFT student reporters conducted the interview, not Smith, so theywere effectively the “qualified” news gatherers.Smith saidstudent journalists should be afforded the same protections as professionaljournalists and that they fit the criteria outlined in thestatute.“Implicitly one of our concerns was that they would notrecognize us as full-fledged journalists also because our reporters andphotographers are students just learning their trade, but we’re producinga newscast for the public, so implicit in that is also that we’rerecognized as full-fledged journalists,” Smith said.

Florida Bar v. G. Stuart Smith, No. 2002 CA 4147 (Fla. Cir. Ct. Jan. 10, 2003).