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Florida's complicated legal tussle over Justin Bieber police footage

Perhaps you have heard of Justin Bieber, a young Canadian immigrant whose stated hobbies include hanging out with friends, skateboarding and doing "normal things."

Perhaps you've also heard of his music career.

But did you know that Floridians could plausibly argue that they had a legal right to watch footage of Bieber urinating in a Miami Beach police station?

For various reasons that involve possible drug use, possible drag racing and definitely high-powered media attorneys, this profound constitutional question had to be considered by a Miami-Dade County judge this week.

Here are the facts, as claimed by the Miami Beach Police Department:

In the early hours of Jan. 23, Miami Beach police officers pulled over Bieber and a friend on suspicion of drag racing.

Bieber, who had an expired Georgia driver's license, was slurring his words and was perhaps less than fully compliant with the cop he was cussing out, according to the police, anyway.

An arrest ensued, as did an international media freak-out.

But none of the allegations against Bieber were particularly at issue this week in the courtroom of Judge William Altfield, who is overseeing Bieber's case.

Instead, Altfield had to decide whether more than a dozen local and national news organizations, including CNN and the Associated Press, had a right to obtain police footage that might also contain incidental footage of Bieber's privates.

(Disclosure: Among the 13 media outlets listed as intervenors in the lawsuit were the Orlando Sentinel and the South Florida Sun-Sentinel, which, like the Los Angeles Times, are owned by the Tribune Co.)

Bieber's minor indiscretions became a battle over public records law, and the media clearly had the upper hand. Last week, Altfield approved the public release of hours of footage of Bieber in the Miami Beach police station, which included video of Bieber doing pushups in his cell and looking wobbly during a sobriety test.

That's because police video, under Florida's constitution, is considered a public record, free for all to see, whether Bieber's attorneys like it or not.

"In Florida, we have a constitutional right to privacy," Barbara Petersen, president of Florida's First Amendment Foundation, a pro-transparency group, told the Los Angeles Times. "But it’s specifically secondary to the public’s right of access."

Privacy is enshrined in Florida's constitution, in Article 1, Section 23: "Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein."

Here's the cavernous herein: "This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law."

That herein is why Florida's open-records laws are considered the most expansive in the country. It's how the media can quickly obtain video of George Zimmerman's confrontations with police, and get jailhouse audio of Michael Dunn calling himself a "victim" after he killed a teenager who was listening to loud music.

But Bieber's attorneys protested that some of the police video might violate Bieber's privacy rights, which led to an unusual hearing in February.

"My clients have no interest in seeing Mr. Bieber’s penis," Deanna Shullman, one of the media attorneys, told the judge, CBS-4 reported at the hearing.

Another media attorney, Scott Ponce, said the police videos all had to be presumed public, but then he struck at the heart of the argument: "I think the issue is do we see his penis or do we not?" (Ponce then said Bieber's penis could be redacted, but that everything else should be released.)

The media attorneys also argued that Bieber's attorneys didn't have the grounds to complain in the first place: Public records are public records, and you can't keep them secret.

But on the request of the prosecutor's office, the judge reviewed the videos in private, and in a Tuesday ruling revealed that, indeed, he saw "an image of the defendant's genitalia."

Altfield said Bieber's penis had to be blacked out in the remaining footage before it could be released because "a substantial injury may be caused by the disclosure and dissemination of the defendant's genitalia to the public and media."

(Some context: This is the same celebrity who was recently filmed urinating into a mop bucket at a restaurant and then shouting a certain unprintable word about former President Clinton.)

If there also happened to be clear video of Bieber urinating - and it appears there isn't - then that would theoretically have to be redacted too, Altfield decided.

So Bieber's privates are private records?

Not so fast, says media attorney Jon Kaney.

"The problem is, they are jail documents, not court documents," Kaney told The Times in an interview, in which he said that the judge took a "wrong step" to react to an "off-the-wall" request from prosecutors to make a decision about redacting the footage.

Some of the legal logic about the decision is convoluted, but the problem, Kaney said, is that there are certain privacy exemptions that exist for court documents, but not for other public documents, like police station footage. But the judge decided that the police footage was a court document, Kaney said.

"It’s not private if it’s public. No one has an expectation of privacy when they are incarcerated and they’re peeing in public," Kaney said, clarifying that, yes, being in a police station in front of police cameras in Florida is tantamount to being in public.

The only case Kaney could think of as similar to this week's Bieber ruling was one in which media attorneys had sought autopsy photos of racing legend Dale Earnhardt, who died in a crash at the 2001 Daytona 500.

There was no exemption in Florida law stating that autopsy photos should be kept private, but the state Legislature immediately passed a law adding such a stipulation, blocking the media.

There's no such exemption for police footage, making the judge's ruling "really strange" and a bit of a "judicial accident," Kaney said.

And because of the way the process shook out, "I doubt anybody will get Justin Bieber’s private parts unredacted," Kaney added. "That’s just not the way things work."

In related news, Miami Beach police photos of Bieber's bare torso are already running all over the Internet.

The cops were taking photos of Bieber's tattoos. They're public records, you see.

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