Op-Ed: The First Amendment, Florida’s Government in the Sunshine, The Fourth Branch of Government and The Public’s Right to Know


St. Petersburg Attorney

Chances are it’s been some time since you took the time to think about the United States Constitution and the dramatic impact it has on your everyday life.  It has undoubtedly been longer—if ever—since you considered our Florida Constitution. But this country and this state are in the midst of some of the most profound challenges we have ever faced. As we confront these challenges and consider what we must do to overcome them, it’s time we all carefully examine some of the key principles upon which our country and this state are founded.

First and foremost, our founding forefathers recognized that this country would not survive unless citizens had free and unfettered access to information from all levels of government and a means to distribute and debate this information in all public places. So essential was this right, it was enshrined as the First Amendment to our United States Constitution.

And when our Florida Constitution was adopted these same rights were placed high on the priority list where our state’s early leaders boldly asserted: No law shall be passed to restrain or abridge the liberty of speech or the press. The fundamental liberty of free speech is not at all exclusive to the formal press. Indeed, as asserted by Florida’s Supreme Court in 1977:

Freedom of the press is not, and has never been a private property right granted to those who own the news media. It is a cherished and almost sacred right of each citizen to be informed about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people, and the Nation.

Throughout our state’s history our leaders have expanded and reaffirmed those basic rights by passing a series of so-called Sunshine Laws which remain among the most comprehensive in the nation. These laws proclaim that the work produced by Florida’s government is owned by the people of the State of Florida and further affirm that all citizens have a near absolute right to unfettered and unrestrained access to information from all every branch of government.

These important rights of access and information should especially apply to every bit of information and every decision made in courtrooms all across this state, but in this terrifying new world in which we live where the interests of Wall Street and corporations reign supreme, these fundamental rights are under attack. Indeed, just last year, at a time when law enforcement, health care and education budgets were being cut to the bone, our legislature conjured up $9.6 million dollars and used that money to establish the so called Foreclosure Rocket Docket a separate and grossly unequal court system that is repugnant to the fundamental principles of open government, equity and fairness.

When these so-called “Rocket Docket” courtrooms first began hearing cases, attorneys and advocates from across the state began reporting Kafka-esque star chamber courtrooms where judges, clerks and attorneys for the foreclosure mills churn through thousands of foreclosure files and where homeowners and their attorneys had to fight to gain access and clamor to have their basic rights recognized. Such struggles are expressly forbidden by Florida’s Supreme Court when it warned that: To prevent star-chamber injustice the public should generally have unrestricted access to all proceedings.

When reports of these Rocket Docket proceedings reached this state’s news organizations, they immediately took action, demanding that our courtrooms be made open and accessible and insisting that all citizens have free access to information and decisions made in these tribunals. To our court’s credit, the Chief Justice of the Florida Supreme Court immediately issued an advisory reminding every judge in the state that all courtrooms must remain open and accessible to all. This action was a triumph for the rights of all Floridians and it dramatically emphasized the essential role our free press plays in protecting the basic rights of every American. The problems with these courtrooms have not been eliminated, and the episode serves as a reminder that we must all be vigilant when it comes to protecting fundamental constitutional rights.

The foreclosure fight is not just about the fact that in this decimated economy millions of Americans are not able to make their mortgage payments. The larger battle is a fight to reclaim our courtrooms and to protect our entire judicial system and the foundations of our democracy from the full frontal assault that is occurring right before our eyes. The robo signer controversy was not about sloppy paperwork, it exposed the very real problem that our courts have little or no idea who they are transferring property all across this country to and the fact that the foreclosure mills that are churning through these cases are ignoring basic rules of evidence and court procedure that have been in place for hundreds of years and which help to ensure that basic rights are protected.

Our nation’s free press is often referred to as the fourth branch of government and in these trying times our country faces, we need a strong fourth branch and the protections provided by our constitutions more than ever before. Attorneys and advocates that have been speaking out against these abuses are subject to very real threats, reprisals and intimidation and all these problems might have gone unchecked were it not for the active investigation and reporting from news outlets across this state and nationally. The unprecedented budget pressures faced by government at all levels produces an environment that is ripe for fraud, corruption and fundamental unfairness that is repugnant to the essential requirements of a healthy democracy. Now more than ever we all need our free and open press to be aggressively asserting the public’s rights of access and open information from government at all levels. At the same time, the general public has an obligation to recognize the absolutely essential the fourth branch of government plays in our country and we must do all that we can to support our free and open press.