Court Strikes Down Florida Internal Affairs Privacy Law

Dennis Cooper is the publisher and editor of Key West The Newspaper, a free weekly newspaper that is distributed to several hundred locations in Key West, Florida. In a series of articles published by the newspaper in May and June of 2001, Cooper reported that Robert Christensen, an internal affairs investigator with the Key West Police Department, failed to investigate a complaint filed with the Florida Department of Law Enforcement (FDLE). Based on information he collected while writing these articles, Cooper filed a formal complaint against Christensen with the FDLE for Christensen’s alleged failure to investigate and falsification of information in his report.

The FDLE assigned Gordon Dillon to investigate the matter, and notified Cooper of the assignment. Cooper then published an article reporting that he had lodged a complaint against Christensen and that the FDLE had instructed Dillon to investigate the matter within 45 days. In a “Commentary,” Cooper recounted the allegations set forth in the previous week’s article and implored Dillon to “tell the truth [about the result of his investigation] and let the chips fall where they may.”

The same day that Cooper’s “Commentary” was published, Dillon swore an affidavit and obtained a warrant for Cooper’s arrest. The affidavit alleged that Cooper violated a Florida statute prohibiting disclosure of non-public information obtained as a participant in the internal investigation of a law enforcement officer. When the State Attorney subsequently declined to pursue the charges against Cooper, Cooper sued a variety of individuals and public entities for violation of his free speech rights.

The central issue in the case became the constitutionality of the internal investigations statute.

A federal appeals court found the statute to be impermissibly “content-based.” The Court noted that “laws that distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based. Content-based restrictions are found where the statute’s prohibition is “directed only at works with a specified content. By contrast, content-neutral statutes are those which can be ‘justified without reference to the content of the regulated speech.’”

The Court found that the Florida statute was content-based “because the purpose of the statute is to stifle speech of a particular content, namely, speech regarding pending investigations of law enforcement officers.” That meant, in the Court’s judgment, that the law could only be upheld if it was narrowly tailored to “promote a compelling governmental interest.”

The State of Florida argued that three compelling interests existed: (1) The interest in maintaining the integrity of the investigative process by shielding potential witnesses from information which could alter their testimony; (2) the interest in protecting the reputations of wrongfully-accused officers; and (3) the privacy interests of complainants, witnesses, and persons conducting the investigations. The State also argued that the statute was narrowly tailored to serve these interests because: (1) It limited only the speech of participants in an investigation; (2) it applied only to speech obtained pursuant to the investigation; and (3) it prohibited speech only for a limited time until the investigation becomes public record.

The Court of Appeals was unimpressed by each of the State’s arguments. The Court held that “the maintenance of the integrity of an investigative process constitutes a sufficiently compelling justification for a content-based restriction on speech. While the Supreme Court has recognized that secrecy and confidentiality may be constitutionally permissible in the context of grand jury proceedings, the context of an FDLE internal investigation can be distinguished from such litigation-related activities which historically have been afforded greater protections for their confidentiality.”

The Court also found wanting the claimed interest in protecting wrongfully-accused officers from defamation. Quoting from a Supreme Court decision, the Court decided that “injury to official reputation is an insufficient reason for repressing speech that would otherwise be free.”

Lastly, the Court rejected the notion that there was a compelling interest safeguarding the privacy interests of targets, witnesses, and complainants in the investigation as a compelling state interest. Again citing prior Supreme Court decisions, the Court noted that “interests in privacy are insufficient to support criminal sanctions for the publication of lawfully obtained information.”

Cooper v. Dillon, 2005 WL 653313 (11th Cir. 2005).

This article appears in the June 2005 issue