(This was prepared for the 1991 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, an attorney and professor of communications at California State University, Fullerton). 

A California appellate court overturned an act of administrative censorship at a community college in 1990 in a precedent-setting decision that has important implications for student journalists and their faculty advisers. In DiBona v. Matthews, the Court of Appeal ruled that San Diego community college officials violated the First Amendment by banning the production of a play entitled "Split Second" by a drama class in San Diego's Educational Cultural Complex. 

The play was selected by drama instructor Alan DiBona as a student production, but college officials became concerned about what they regarded as racist overtones and offensive language in the play. A racially-tinged murder trial was underway in San Diego at the time, and administrators feared an adverse community reaction if the play was produced. In the end, they canceled the class to prevent the play from being produced even in private. 

A 2-1 majority of the appellate court held that college officials acted improperly by canceling the class merely to avoid a possible negative reaction in the community. The court drew a distinction between administrative prerogatives at the high school level (as in the U.S. Surpeme Court's Hazelwood v. Kuhlmeier decision) and at the college level. In this instance, it was clear that administrators only became involved when they received complaints from the community. In ruling that the decision to censor the play by cancelling the class was improper, Justice Howard Wiener wrote: "(S)chool officials were merely concerned with avoiding the discomfort and unpleasantness that always accompany an unpopular or unorthodox point of view." 

The majority's decision in favor of faculty/student prerogatives drew a passionate dissent by Justice Richard Huffman. Huffman argued that the Hazelwood principle should apply at the college level, giving administrators virtually complete control over the content of student productions that are related to the curriculum. Huffman wrote: 

"The majority unfortunately has snatched that authority (to control the curriculum) from (administrators') hands and given it over to individual faculty... and students. All of this is done in pursuit of academic freedom. Respectfully, the majority opinion will permit in matters of curriculum content the faculty tail to wag the administration dog. In my view, this sets a bad policy which I hope will not long endure." 

Perhaps encouraged by Huffman's dissenting opinion, San Diego college officials appealed to the state Supreme Court. But the state's highest court refused to hear the case, which means the appellate court's decision stands as a legal precedent throughout California. The DiBona ruling offers significant new support for college publication advisers and other faculty members who teach activity-related courses that are often prime targets of administrative censorship. The text of this court decision is attached. 
 

SUPREME COURT RULINGS ON THE CALIFORNIA SHIELD LAW 

The California Supreme Court handed down two long-awaited decisions on the scope of the state shield law during 1990. Each was in some ways a victory and in other ways a defeat for the state's journalists. 

In the first of these cases, Delaney v. Superior Court, the court created a significant exception to the shield law. In this case, the court analyzed the applicability of the shield law in criminal cases, and made it easier for judges to require journalists to testify. The court declared that journalists must testify whenever there is "a reasonable possibility the information will materially assist" the accused in his/her defense. However, the court also held that the shield law applies broadly to all kinds of information a journalist might obtain. 

The Delaney 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 had a plastic bag protruding from a pocket, and the officers assumed it contained narcotics. It didn't, but his jacket contained a pair of brass knuckles that the officers discovered during a pat-down search. Delaney claimed that he did not consent to the search, and the journalists were the only eyewitnesses to the arrest. Since the legality of the search was central to the case against Delaney, both the prosecution and defense asked the journalists to testify. When they refused, this precedent-setting test of the state shield law began. 

The journalists contended that their observations were "unpublished information" under the shield law, but in 1988 an appellate court ruled against them. That court said 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 lower 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." 

The Supreme Court disavowed some of Justice Devich's thinking. Writing for the Supreme Court majority, Justice David Eagleson said the shield law is clearly intended to apply to any information in a journalist's possession, including information gained by eyewitness observations. Thus, the shield law protects non-confidential information as well as confidential information that a journalist may have. 

That was the good news. However, the bad news was what Eagleson went on to say. He also said that in criminal cases the accused may compel a journalist to testify in many instances, even if the journalist's testimony does not necessarily go to the "heart of the case," as required by some earlier court decisions. Instead, Eagleson said judges should consider only whether there is a "reasonable possibility" that the information would help the defendant, and the extent of the journalist's need for confidentiality. In making that determination, Justice Eagleson said courts could consider whether the same information could be obtained from a non-journalist, whether testifying would hamper a journalist's newsgathering ability, and whether the information is confidential or sensitive. 

This appears to open the way for journalists to be compelled to testify in criminal cases fairly often. But the Delaney decision did offer journalists a major consolation: the court said that when the shield law is not superseded by another legal principle, it protects all information in a journalist's possession, regardless of whether that information was obtained from a secret source or merely obtained by eyewitness observation. 

If many journalists were troubled by the state Supreme Court's ruling in the Delaney case, they could find at least a little consolation in another Supreme Court decision on the shield law that came just a few months later: New York Times Co. v. Superior Court (Santa Barbara Count). In this case, Volkswagen of America Inc. wanted to forcethe 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 one of its photographers had covered the accident as a news event. 

The Supreme 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. 

In arguing for access to the photographs, Volkswagen contended that the photographs were unimportant to the newspaper and would probably be thrown away. In an earlier phase of this case, an appellate court had responded to that by saying: 

"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." 

The Supreme Court concurred in that conclusion. Thus, journalists enjoy broad protection under the shield law when they are called to testify in civil cases. 

However, there was bad news even in this decision. The Supreme Court also said that journalists cannot appeal an order requiring them to testify until they are actually cited for contempt of court. (In this case the New York Times Co. had appealed the order immediately--without waiting for anyone to be cited for contempt of court). The Supreme Court ruled that such an appeal was premature. As a result, a journalist can still be jailed for not obeying a court order to turn over confidential material before an appeal of the order is allowed. Even if the order is clearly improper and will surely be overturned on appeal, a journalist may have only two choices: 1) forget the shield law and obey the order even if it is improper; or 2) refuse to obey it, be cited for contempt and possibly sent to jail, and then appeal to a higher court. Justice Stanley Mosk objected to that aspect of the New York Times decision, saying a reporter should not have to wait until "a bailiff has placed him in handcuffs and led him off to jail" before appealing. But the majority opinion allows that very thing to happen. 

Taken together, the Delaney and New York Times decisions of the California Supreme Court can hardly be viewed as victories for the media. Journalists investigate and write about crime daily. They often obtain information that could be relevant to the defense in a future criminal case. In the Delaney decision the California Supreme Court opened the way for journalists to be compelled to testify in some--perhaps many--of these cases. And while the New York Times case gives journalists absolute protection in civil cases where they are not involved as participants, they must wait until they are cited for contempt before challenging a judge's order--regardless of how improper such an order may be.