V.                                                                             CASE NO. 98-2439 Div. B 

OF TAMPA, INC. d/b/a WTVT-TV, a 
Florida corporation, 


            DEFENDANT NEW WORLD COMMUNICATIONS OF TAMPA, INC. ("New World"), by and though undersigned counsel pursuant to Fla. R. Civ. P. 1. 1 10(b) and 1.140, hereby moves this Court for dismissal of the action filed here and says: 

The complaint is prolix and violates Rule 1.110(b) 

        1. The plaintiffs are two reporters formerly employed by New World, who are suing over events surrounding a four-part news report that was never broadcast. Their complaint is a 71-paragraph, 29-page document, nineteen pages of which contain a narrative, blow-by-blow, novelistic recounting of evidentiary facts, nearly all un- necessary to the stated causes of action. In addition, Plaintiffs have attached 129 pages of documents and one videotape as exhibits. The complaint is much more a press  

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 release and much less a complaint. 1/ 

        2. Fla. R. Civ. P. 1. 1 10(b) provides, in pertinent part, that a complaint "shall contain... (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief..." (emphasis supplied) See also Fla. R. Civ. P. 1.900(b), 

 ("....So long as the substance is expressed without prolixity, the forms may be varied to meet the-facts of a particular case"). 

        3. Here, Plaintiffs have larded their complaint with such inessential evidentiary facts as the contents of letters attached to the complaint as exhibits see, e.g., ¶18 and Exhibit C; quotes from conversations allegedly had that are of no legal import, see ¶¶27 and 28; and a narrative description of failed settlement negotiations, see 30, as well as an unsigned settlement agreement. Exhibit H. These latter items are clearly inadmissible and were included in the complaint strictly for reasons of publicity, unrelated to the legal process. § 90.408 Fla. Stat. (1997)(offers to compromise inadmissible to prove liability) 

        4. Plaintiffs have abused the doctrine of privilege for matters asserted in pleadings. Now that the initial flurry of publicity has occurred, they should be required to re-plead their complaint in conformance with ordinary rules of pleading, as any other litigant is required to do. The observation of the Third District applies here: "This pleading effort was prolix, duplicitous, scandalous, and impertinent."        Buckner  v. Lower   _____________________________ 
            1/  Indeed, the plaintiffs conducted two press conferences the day they filed their suit and distributed copies of the complaint and exhibits to reporters present, along with other documents They have also created a web site to publicize their issues, where they have posted the complaint and exhibits and where they are soliciting public comments. 

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Florida Keys Hospital District, 403 So.2d 1025, 1027 (Fla. 3d DCA 1981)(100- paragraph complaint; 59 pages of exhibits). 

The complaint fails to state a cause of action 

        5. Aside from the pleading deficiencies, Plaintiffs at bottom are asking this Court to scrutinize a pre-broadcast review process and to substitute the Court's news judgment and editorial discretion for that of New World. This the Court cannot do, without running afoul of the free press guarantees of the First Amendment to the United States Constitution and Art. 1, § 4 of the Florida Constitution. 

        6. Decisions as to word choice, editing, tone, and other matters of editorial discretion are in the exclusive domain of professional journalists, in our system of self-government. In stark contrast to this bedrock principle of First Amendment jurisprudence, these Plaintiffs have sued for breach of contract (Count 1), a declaratory judgment (Count 11), and whistleblower relief (Count III), requesting in each instance an adjudication that New World was in error in its exercise of news judgment and editorial discretion during its pre-broadcast review process.2/ 
            a. Plaintiffs dress their suit up as employment claims, but the underlying, predicate adjudication common to all of Plaintiffs' theories would encroach dramatically and egregiously upon New World's First Amendment rights. The Government -- even 
           2/In Count II, the Plaintiffs seek a declaration that New World required them "to participate in the preparation and broadcast of the BGH news report containing false or misleading information  T 65. This is a pure invitation to second-guess New World's news judgment and editorial discretion. 

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a judge or a jury -- cannot decide what should or should not be broadcast on the six o'clock news. 

      A newspaper is more than a passive receptacle or conduit for 
      news, comment, and advertising. The choice of material to go 
      into a newspaper, and the decisions made as to limitation on 
      the size and content of the paper, and treatment of public 
      issues and public officials -- whether fair or unfair -- 
      constitute the exercise of editorial control and judgment. It 
      has yet to be demonstrated how governmental regulation of 
      this crucial process can be exercised consistent with First 
      Amendment guarantees of a free press as they have evolved to 
      this time.
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974). 

            b. Likewise, even in the area of broadcast news where Congress has seen fit to require licensees to operate in the public interest, the Federal Communications Agency and the courts are historically reluctant to interfere in the types of matters alleged in this complaint and adhere to a strict standard that gives due deference to news decisions. 

      The key elements of this standard are, first, that the distortion 
      or staging be deliberately intended to slant or mislead. It is 
      not enough to dispute the accuracy of a news report; [citation 
      omitted], or to question the legitimate editorial decisions of 
      the broadcaster, [citations omitted]  Second, the distortion 
      must involve a significant event and not merely a minor or 
      incidental aspect of the news report.
Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985)(emphasis supplied). 
                c. The Court should be mindful that Plaintiffs are complaining about a broadcast that never occurred. It is extremely doubtful whether any FCC regulation 
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applies in this instance, for the FCC does not purport to operate or control newsrooms; its concern --limited though it may be -- is with the broadcast product, which is completely absent here due to these Plaintiffs' *intransigence and unreasonable conduct during the review process. See Exhibit C, Forrest letter to Plaintiffs, April 10, 1997, at 2: "A final, publishable version of your story could have been achieved many versions (and weeks) ago if the needed changes had been made by you without rancor, argument and personal attacks on Greg Jones, Sue Kawalerski and me.. . If you are chafing under the editorial and legal scrutiny, you may find it more useful to actively cooperate in producing a fair and balanced report." In any event, even a cursory examination of the complaint and exhibits reveals that these Plaintiffs wanted to tell their story one way, and New World believed it should more fairly be told in another, more balanced way. That is not the grist of FCC regulation. The FCC may examine a given broadcast for violations of its regulations, but the FCC never examines an editorial process where no broadcast was made, as the Plaintiffs want this court to do. 

        7. Likewise, Plaintiffs claim in their Whistleblower Act count, brought pursuant to § 448.102, Fla. Stat.(1997), that New World's conduct of the pre-broadcast review process violated "laws, rules, and regulations, including violations of the Federal Communications Act" and that Plaintiffs were retaliated against for threatening to disclose such conduct to the FCC and for refusing to cooperate in such violations. ¶68). 

              a. Whistleblower protection is limited to those instances in which the employee notifies the employer of the alleged misconduct or misdeed, in writing, and  gives the 

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employer the opportunity to cure. Violations of enacted statutes, rules, or regulations -- only --will give rise to employer liability, for obvious due process reasons. 

                b. Here, Plaintiffs never notified New World in writing of exactly what "laws, rules, or regulations" New World allegedly was violating, as Florida law requires, nor do they plead they did so, nor can they save their claim at this late date by specifying any such- "law, rule or regulation." Potomac Systems Engineering, Inc. v. Deering, 683 So.2d 180 (Fla. .2d DCA 1996). In effect, the Second DCA has made proper notice a condition precedent to a whistleblower claim. The wisdom of this rule of law is readily apparent in this case, for New World should not be required to speculate about what law Plaintiffs believe it violated. 

            c. To the extent Plaintiffs rely on the so-called Fairness Doctrine of the FCC, that doctrine has been defunct for ten years, having been declared contrary to public policy. Syracuse Peace Council v. Federal Communications Commission, 867 F.2d 654 (D.C. Cir.), cert. den. 493 U.S. 1017 (1989). 

                d. To the extent Plaintiffs rely on the FCC's doctrine against zzzzz, stigma, or distorting the news, that doctrine (assuming it even survives after Syracuse Peace Council) has been applied strictly to the rare circumstance where the news organization "created" the news by "staging" it. "For example, the licensee's newsmen should not, upon arriving late at a riot, ask one of the rioters to throw another brick through a store window for its cameras." Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985), 

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quoting WBBM-TV, 18 FCC2d 124, 132-33 (1969). 
There is no allegation in this complaint even remotely similar to staging, and the Court should rule, as a matter of First Amendment law, that the editorial disagreements over a broadcast not made are not a proper subject of adjudication. 

                e.. To the extent Plaintiffs rely or intend to rely on a public policy argument in claiming whistleblower protection, such grounds are unavailing. "We are confident that the legislature did not intend to create a cause of action for what essentially amounts to an internal and personal dispute between appellant and her employers ... [T]he phrase 'law, rule, or regulation' refers to the enactment of a legislative or administrative forum... Public policy is a protean thing, and provides at best, a shaky foundation for imposing civil liability." Forrester v. Phipps, 643 So.2d 1109, 1111-12 (Fla. 1st DCA 1994). 

        8. Moreover, Plaintiffs' claims appear to be an attempt to privately enforce unnamed provisions of the federal Communications Act of 1934 or unspecified regulations of the FCC. Congress did not intend such implied private causes of action for enforcement, and, in the absence of specific congressional authority, such claims are zzzzz. "The Communications Act of 1934 did not create new private rights." Scripps Howard Radio v. FCC, 316 U.S. 4, 14 (1942). If FCC standards are enforced, it is up to the FCC, and not the courts, to do the enforcing. 

        9. Finally, as is demonstrated by broadcast scripts attached as Exhibits Q and R 

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to the complaint, plaintiffs have misappropriated New World's property. The employment agreements (Exhibits A and B) clearly state, at numbered Paragraph 4, that "[all programs, program segments, titles and formats, scripts and outlines, ideas and concepts conceived and created therefor and developed therein, shall be the sole and exclusive property of [New World]. . ."(emphasis supplied).3/  This misconduct by Plaintiffs is in itself a material and serious breach of the employment agreements, amounts to theft, estops Plaintiffs from seeking the remedies they have pled, and is of sufficient magnitude to defeat any recovery they may be seeking for New World's alleged breach. 
            3/On information and belief, Plaintiffs also misappropriated the raw, unedited videotape from which the four-part series was created. Plaintiffs did supply at least one of the parts for broadcast over a local radio station shortly after the filing of this suit, all without New World's consent. 
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        WHEREFORE Defendant New World respectfully requests this Court enter its dismissal of this cause and such other and further relief as the Court deems appropriate. 

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