Cooper v. Dillon

• Decision Date: 22 March 2005
• Docket Number: No. 04-11150.,04-11150.
• Parties: Dennis Reeves COOPER, Plaintiff-Appellant, v. Gordon A. DILLON, individually and in his official capacity as Chief of Police of Key West, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1208

403 F.3d 1208

Dennis Reeves COOPER, Plaintiff-Appellant, v. Gordon A. DILLON, individually and in his official capacity as Chief of Police of Key West, Defendant-Appellee.

No. 04-11150.

United States Court of Appeals, Eleventh Circuit.

March 22, 2005.

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Randall C. Marshall, American Civil Liberties Union of Florida, ACLU Foundation of Florida, Inc., Miami, FL, M. David Gelfand, Tulane Law School, Thomas W. Milliner, New Orleans, LA, for Plaintiff-Appellant.

Michael T. Burke, Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, Ft. Lauderdale, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH, KRAVITCH and GIBSON^*, Circuit Judges.

BIRCH, Circuit Judge:

This appeal requires us to determine the constitutionality under the First Amendment of a Florida statutory provision which makes it a misdemeanor for a participant in an internal investigation of a law enforcement officer to disclose any information obtained pursuant to the investigation before it becomes public record.¹ The district court found that the statute did not abridge fundamental freedoms of speech and of the press guaranteed by the United States Constitution. Because the statute is a content-based restriction which chills speech that "lies near the core of the First Amendment," Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1 (1978), we REVERSE and REMAND to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Plaintiff-appellant Dennis Reeves Cooper is the publisher and editor of Key West The Newspaper ("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 ("KWPD"), failed to investigate a complaint filed with the Florida Department of Law Enforcement ("FDLE").² Based on information he collected while writing these articles, Cooper, in his capacities as a citizen and as the publisher of a newspaper,³ filed a formal complaint against Christensen with the FDLE for Christensen's alleged failure to investigate and falsification of information in his report.

Cooper subsequently received two letters from the FDLE. The first letter, which was addressed to Cooper, indicated that the FDLE had received his complaint and had instructed Defendant-appellee Gordon A. Dillon to investigate the matter. The second letter was a courtesy copy of a letter sent by the FDLE to Dillon requesting that he investigate Cooper's complaint and report back to the FDLE within forty-five days. Following his receipt of these letters, Cooper published a 15 June 2001 article reporting that he had lodged a complaint against Christensen and that the FDLE had instructed Dillon to investigate the matter within forty-five days. In a 22 June 2001 "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." R2-55 at 3.

On 22 June 2001, 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 Fla. Stat. ch. 112.533(3)⁴ by disclosing in his articles two items of information he obtained as a participant in an internal investigation — that Christensen was the subject of an official investigation and that Dillon had forty-five days to respond to the FDLE. Following his arrest, Cooper was held in the county jail for approximately three hours and then released on his own recognizance. The State Attorney subsequently declined to pursue the charges against Cooper because the statute under which Cooper was charged, Fla. Stat. ch. 112.533(3), had been declared unconstitutional.

On 21 December 2001, Cooper filed suit for declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983 for Dillon's enforcement of Fla. Stat. ch. 112.533(4) allegedly in violation of his First, Fourth, and Fourteenth Amendment rights. Cooper sued Dillon both as an individual and in his official capacity as Chief of Police of Key West. Dillon, in his individual capacity, subsequently moved for summary judgment on the grounds that he was entitled to qualified immunity. He also asserted he was entitled to summary judgment in his official capacity because Cooper had failed to show that Dillon's enforcement of the statute constituted a deprivation of constitutional rights. Cooper then moved for partial summary judgment on the ground that Fla. Stat. ch. 112.533(4) was unconstitutional. The magistrate judge's recommendation and report recommended that Cooper's motion for partial summary judgment be granted because Fla. Stat. ch. 112.533(4) was an unconstitutional content-based restriction on speech. The district court rejected the magistrate judge's report, found that the statute was content-neutral and not unconstitutional, and consequently granted Dillon's motions for summary judgment. On appeal, Cooper argues that the statute is unconstitutional and that Dillon's enforcement of it subjected Dillon in his individual and official capacities to liability under 42 U.S.C. § 1983.

II. DISCUSSION

A. Constitutionality of Fla. Stat. ch. 112.533(4)

"The constitutionality of a statute is a question of law subject to de novo review." Doe v. O'Brien, 329 F.3d 1286,1293 (11th Cir.), cert. denied, 540 U.S. 947, 124 S.Ct. 389, 157 L.Ed.2d 277 (2003).

The First Amendment, made applicable to the states by the Fourteenth Amendment, provides that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people ... to petition the Government for a redress of grievances." U.S. Const. amend. I. These sacrosanct freedoms are widely recognized as necessary to foster the uninhibited self-expression which is characteristic of our free society. See Watchtower Bible, Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 165-66, 122 S.Ct. 2080, 2089, 153 L.Ed.2d 205 (2002); Procunier v. Martinez, 416 U.S. 396, 427, 94 S.Ct. 1800, 1818, 40 L.Ed.2d 224 (1974) (Marshall, J., concurring), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). But more importantly, these First Amendment freedoms are also understood to be essential to the maintenance of our democratic polity, which depends upon an informed citizenry to hold government officials accountable for error and abuse and to seek redress and change by lawful means. See Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964) ("[S]peech concerning public affairs is more than self-expression; it is the essence of self-government."); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931). Indeed, it was a desire for government accountability in the face of perceived abuses that ignited the movement toward the foundation of our country, see The Declaration of Independence para. 30 (U.S.1776); and this same desire subsequently inspired the Framers to guarantee the rights to speak, to publish, and to petition government, see Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring) (noting that the Framers believed that "the path of safety lies in the opportunity to discuss freely supposed grievances"), overruled on other grounds, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Based on this understanding, it has been universally recognized that one of the primary purposes of the First Amendment is to "protect the free discussion of governmental affairs" because the maintenance of a responsible democratic government depends upon it. Landmark Communications, Inc., 435 U.S. at 838, 98 S.Ct. at 1541 (citation omitted); Wood v. Georgia, 370 U.S. 375, 392, 82 S.Ct. 1364, 1374, 8 L.Ed.2d 569 (1962) (noting that the "purpose of the First Amendment includes the need: ... to protect parties in the free publication of matters of public concern, [including] ... any just criticism upon [government officials'] conduct in the exercise of the authority which the people have conferred upon them") (citation omitted).

Crucial to the democratic task of holding government officials accountable and informing the citizenry is a free press. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975); Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966) ("The press ... guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."). By investigating government abuse and providing a forum for citizens to amplify their complaints against government and inform their fellow citizens, a vigilant, responsible, and, most importantly, free press guarantees that "debate on public issues [can] be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). Recognizing the importance of the press in our democratic society, the United States Supreme Court has found that if the press "lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 2671, 61 L.Ed.2d 399 (1979).

The Court in Smith thus recognized that, despite the centrality of the First Amendment protections to our democratic society, the freedoms of speech and of the press can be...