(This summary was prepared for the 1989 Journalism Association of
Community Colleges Faculty Retreat by Wayne Overbeck, an attorney and professor
of communications at California State University, Fullerton).
STUDENT PRESS LAW A YEAR AFTER HAZELWOOD
It has become clear in the year since the Supreme Court's Hazelwood v. Kuhlmeier decision that school administrators believe they have a mandate to engage in censorship. However, no precedent-setting court decision has yet applied the Hazelwood principle at the college level. And the ninth circuit U.S. Court of Appeals has reaffirmed the First Amendment rights of high school students in a case involving an unofficial student newspaper.
In Burch v. Barker, a case decided ten months after Hazelwood, the appellate court overturned a Renton, Washington, school district policy requiring prior administrative review of all student-produced publications. A group of students produced an unofficial newspaper called Bad Astra and distributed about 350 copies at a senior class barbeque at Lindbergh High School. A parent placed copies in faculty and staff mailboxes as well. While the newspaper was generally critical of school officials, it contained no material that could be considered profane, obscene, defamatory or commercial, the court concluded.
Although Brian Barker, the school principal, said he did not object to the content of the newspaper, he placed letters of reprimand in five students' files because they circulated the paper without seeking prior administrative approval. But the court ruled that the school policy requiring prior review of all student publications was overbroad and therefore violated the students' First Amendment rights. To require such across-the-board administrative approval amounts to a prior restraint, the court said.
In overruling the school district policy, the court declared that this situation was not comparable to the Hazelwood case because the policy here applied to all unofficial publications--not just official publications like the one involved in the Hazelwood case. School officials cannot engage in wholesale prior censorship of unofficial publications without violating the First Amendment, the court ruled.
While the Burch case reaffirmed the principle that non-school-sponsored publications cannot be censored arbitrarily, it would not preclude administrative sanctions if a particular publication contained offensive content. In fact, the Burch decision emphasized that while a sweeping policy of prior restraint is unconstitutional, school officials remain free to punish students afterward if they distribute offensive or disruptive materials. And as the Supreme Court's Bethel School District v. Fraser decision indicated, school officials now have wide latitude in deciding what is and is not acceptable on a high school campus.
Nevertheless, the Burch case is perhaps the strongest affirmation
of students' First Amendment rights to come from a federal appellate court
in the last decade. It is a binding precedent in California and other states
within the ninth circuit, and it may have considerable impact elsewhere
(although federal appellate court decisions are not binding in other circuits).
THE `NEUTRAL REPORTAGE' LIBEL DEFENSE IN CALIFORNIA
In 1988, a California appellate court in Sacramento ruled for the first time that the "neutral reportage" libel defense applies in this state. This defense had been recognized previously in some federal courts and a few other states' courts, but not in California.
Ruling in the case of Stockton Newspapers v. San Joaquin Superior Court, the appellate court ordered a libel suit against the Stockton Record dismissed without trial. The case arose when the Record reported the strange story of a mentally retarded man who confessed a murder that he did not commit--and was jailed for more than a month before the district attorney's office decided the confession was false and dropped all charges. The man claimed a Stockton police officer had coerced him into signing a false confession, a charge that the officer heatedly denied.
The newspaper reported both the retarded man's accusations and the police officer's denial of using coercion to secure the false confession. But the officer sued for libel, asserting that the newspaper's editors knew the claim of coercion was false. Publishing such a charge when it is known to be false, he argued, constitutes actual malice.
The Court of Appeals disagreed, noting that the newspaper reported both sides of a controversial and newsworthy issue. The court said that the man's story was newsworthy in that it told of someone who was wrongfully jailed claiming that the jailing resulted from misconduct by a public official. The court said that to protect freedom of the press, the media should be free to report the charges and countercharges involved in controversies about public officials. In recognizing the "neutral reportage" defense, the court added these requirements: 1) the newspaper (or other news medium) must be merely reporting charges made by other persons without taking a position (i.e., the news medium must in fact be neutral); and 2) the charges must be reported in a substantially accurate way.
If charges and countercharges involving public officials are accurately reported, then the publication is privileged under California law, and it doesn't matter if the reporter or editor suspects that one side or the other is making a false statement. Thus, "neutral reportage" comes within the privilege defense in California. In so ruling, the court said:
"Given the relation of the newspaper to its citizen readers, the value
of public airing of an alleged official impropriety by means of reasonably
accurate and attributed reportage outweights the prospects of harm to the
reputation of the public official who is the subject of the report."
TWO CALIFORNIA SUPREME COURT RULINGS ON LIBEL
Shortly before Chief Justice Rose Bird and two other liberals were removed from the California Supreme Court in the 1986 elections, the court announced two new rulings on libel. Both were major victories for journalists.
In the case of Baker v. Los Angeles Herald Examiner, the court once again reiterated its view that the media are to be given wide latitude to express opinions without fear of a libel suit, this time in a case involving a critical review. The court dismissed a libel suit against the newspaper by Walt Baker, an executive at KHJ-TV in Los Angeles. Herald Examiner columnist Peter Bunzel had named Baker in a review that blasted a series on sex education in the schools that was done by KHJ-TV; Baker responded with the libel suit.
Bunzel said in the review, "My impression is that executive producer Walt Baker... told his writer-producer, Phil Reeder, `We've got a hot potato here--let's pour on titillating innuendo and as much bare flesh as we can get away with. Viewers will eat it up!'"
In dismissing Baker's libel suit on summary judgment (without a trial), the court ruled that as a matter of law Bunzel's review was a constitutionally protected expression of opinion, not a statement of fact. Writing for the court, Chief Justice Rose Bird said that by definition the word "impression" denotes an expression of opinion. Bird added:
"The point of any review--whether it be of a book, a movie, a play,
a television program, or some other event--is to convey the reviewer's
opinion and professional evaluation of the thing being reviewed."
In McCoy v. Hearst Corporation, the second 1986 ruling, the state Supreme Court went further than ever before in protecting the media from libel suits by public officials.
The McCoy case was notable for several reasons. For one, it involved the largest libel judgment ever affirmed by any California appellate court: a $4.56 million award that was upheld by the Court of Appeal before it was eventually overturned by the state Supreme Court. The McCoy decision is also noteworthy because it was the last of Chief Justice Bird's numerous opinions in favor of the news media in libel cases.
The McCoy case began after the San Francisco Examiner published an investigative series in 1976 accusing authorities of wrongly convicting a Chinatown man of murder. The articles accused two police homicide investigators and a deputy district attorney of pressuring a witness to give false testimony to convict 19-year-old Richard Lee of murder. The stories relied mainly on statements by a convicted felon who was the key witness at the trial. The ex-convict gave the Examiner a statement that his testimony had been false and was given under duress (he claimed that he had been beaten and threatened).
The officers and prosecutor denied that the witness had been pressured to testify falsely. They produced an affidavit from him claiming that his testimony was true and his statement to the Examiner was false. The officers and deputy d.a. sued for libel and won the $4.56 million judgment in 1979.
After the lower appellate court affirmed the judgment, the Supreme Court reviewed the case--and concluded that the Examiner reporters had reason to believe that their stories were true. The plaintiffs simply had not proved the newspaper or its reporters guilty of actual malice, former Chief Justice Bird wrote for the court.
"The reporters uncovered several items which in their minds directly and indirectly corroborated (the controversial witness') allegations," Bird wrote. Since the key issue in deciding whether there was actual malice is the journalists' subjective state of mind, the fact that they believed they had evidence to support their stories was crucial, Bird said. She added:
"Public officials must sometimes bear scathing and even false attacks subject only to those narrowly circumscribed exceptions embodied in the concept of actual malice. The public's interest in reports of official misconduct, even if they are factually erroneous and damaging, outweighs the reputational interest of any individual."
The McCoy decision is one of the California Supreme Court's strongest
affirmations of the First Amendment rights of journalists. In essence,
the court said that a defamatory story about a public official is protected
even if it turns out to be false, as long as the reporter and his or her
editors reasonably believed it was true when it was published.
PENDING: A SUPREME COURT RULING ON THE SHIELD LAW
The California Supreme Court has agreed to review two lower court decisions on the scope of the state shield law, Delaney v. Superior Court (Los Angeles County) and New York Times v. Superior Court (Santa Barbara County).
In Delaney, the second district Court of Appeal had ruled that journalists have no exemption from testifying about events that they personally witness. The case began when Sean Delaney, who was charged with possession of brass knuckles, demanded that a Los Angeles Times reporter and photographer be compelled to testify on his behalf.
The two journalists were with Long Beach Police officers when they arrested Delaney. He claimed that he did not consent to the police search that yielded the brass knuckles. The journalists refused to testify on the ground that their observations were "unpublished information" under the shield law, but the appellate court ruled against them.
The appellate court noted that the shield law was originally intended to protect confidential sources. Since confidential sources were not involved here, the reporters had no right to refuse to testify, the court ruled. Writing for the court, Justice Robert R. Devich said:
"Our holding is strictly limited to a factual situation where, as here, eyewitness testimony regarding a public event is sought from a newsperson. Because in such a situation the subject matter of the testimony is not dependent upon anyone's trust being placed in the newsperson, there is no basis to differentiate the newsperson's observation of the event from that of any other citizen."
Two weeks before the Delaney ruling, another division of the second district Court of Appeal ruled in the New York Times case that unpublished photographs were "absolutely privileged" under the shield law, at least in certain kinds of legal proceedings. In this case, Volkswagen of America, Inc. wanted the court to force the Santa Barbara News-Press (owned by the New York Times Company) to hand over several photographs of an auto accident. Volkswagen was defending a civil lawsuit that resulted from the accident; the newspaper was not a party to the lawsuit, but its photographers had covered the accident as a news event.
The court held that the shield law provides an "absolute privilege" in such a situation: in a civil lawsuit not involving the journalist or news organization, the media cannot be forced to turn over unpublished photographs.
Volkswagen contended that the photographs were unimportant to the newspaper and would probably be thrown away. To that argument, the appellate court replied:
"Whether the photographs sought are bound for oblivion in a wastebasket or have some special significance to the News-Press is not important. The news gatherer on the beat does not have to worry about potential uses of his or her material in third party actions. The shield law is to be broadly applied. Its provisions afford absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information."
In late 1988, the California Supreme Court agreed to review both the
Delaney and New York Times decisions. The result could be
a major redefinition of the scope of the California shield law.
THE LATEST DEFINITION OF OBSCENITY
For the second time in three years, the California legislature has revised the state's definition of obscenity under election-year political pressures. After extensive debate, the legislature in 1988 adopted this definition of obscenity (which now appears in section 311 of the Penal Code):
"(a) `Obscene matter' means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct; and which, taken as a whole, lacks serious literary, artistic, political or scientific value." (emphasis added)
This definition differs from the 1986 version mainly in that it moves
California slightly closer to the U.S. Supreme Court's definition--which
provides less protection for freedom of expression than the older California
definition. Despite intense lobbying by prosecuting attorneys (among others),
the legislature refused to eliminate the requirement of statewide standards,
a step that would have left local communities free to adopt their own varying
standards. But the legislature did adopt the U.S. Supreme Court's "serious...
intent" standard in full, something the lawmakers had previously refused
to do. Under the earlier definition, material could escape being classified
as obscene if it had "significant" (as opposed to serious) value, and material
having "educational value" was protected along with material having literary,
artistic, political or scientific value.