Morro Bay law presentation, 1996
(This was prepared for the 1996 Journalism Association of Community
Colleges Faculty Retreat by Wayne Overbeck, an attorney and professor of
communications at California State University, Fullerton).
1982 DEJA VU: ADVERTISING AND ABORTIONS
Shortly before the 1996 Morro Bay conference, a number of messages were posted in the JACC faculty discussion group concerning a pro-life advertising insert. The discussion concerning the acceptability of this ad raises a number of ethical and legal questions for student editors and their advisers.
For longtime advisers, this whole discussion brought a strong sense of deja vu: it was the primary topic of the 1982 Morro Bay law session. In Portland Women's Health Center v. Portland Community College (Civil #80-558), a 1981 case, a federal judge ordered the Portland student newspaper to publish ads from the Women's Health Center that said abortions were available there. The newspaper had previously rejected such ads.
The Portland decision raised concerns among advisers because it seemed to say that there is a right of public access to student newspaper advertising columns, and that the editors have no right to reject advertising. The American Civil Liberties Union handled the case for the Women's Health Center--and hailed the judge's ruling as a major victory. A 1981 issue of JACC Newsline, which is attached, quotes the ACLU victory proclamation at some length.
The handout for the 1982 Morro Bay law session pointed out several important things that the ACLU statement did not mention. For one thing, the judge's ruling was unpublished: it was not published in the Federal Supplement, which carries U.S. District Court decisions considered to have significant legal impact. As an unpublished decision, it established no legal precedent.
Second, other decisions of higher courts have held that a student newspaper is not automatically a public forum just because there is some element of government funding. In Hazelwood v. Kuhlmeier (484 U.S. 260), the Supreme Court decision that denied First Amendment protection to high school student newspapers, for example, the court made it clear that a student newspaper is not inherently and automatically a public forum. The last paragraph of the ACLU victory statement that is quoted in JACC Newsline overstates the degree to which there is a legal right of access to the student press. Many student newspapers are public forums, but that is not always true.
The overriding factor in the Portland case was that the faculty adviser made the original decision to reject the ad--without consulting the student editors (he later got their retroactive approval of his decision). When an agent of the state (such as a college president or even the faculty adviser) censors something, that raises First Amendment questions that would not exist if the student editors decided to reject an ad. In a number of other cases where a decision to reject a controversial ad was made by student editors, higher federal courts have upheld the right of a student newspaper to reject advertising (see, for instance, Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073).
On the other hand, the 1982 handout cautioned that a government-supported student newspaper could well invite a Portland-type decision by accepting advertising from those advocating one viewpoint on an issue while rejecting ads from the other side. By then, a federal appellate court had ruled that government-supported media had to be viewpoint neutral. More recently, other federal courts (including the Supreme Court--see Lebron v. National Railroad Passenger Corp., 115 S.Ct. 961) have agreed that a government-sponsored medium must be viewpoint neutral in its advertising acceptance policies. (A purely private news medium is under no similar obligation to be viewpoint neutral: see Tornillo v. Miami Herald, 418 U.S. 241).
As the law stands today, it is reasonably clear that the staff (as opposed
to the faculty adviser) of a student newspaper ordinarily has a First Amendment
right to reject advertising. The issue is less clear if the paper becomes
a public forum by accepting ads (or editorial matter) advocating one viewpoint
on a controversial issue--and then rejects ads from the other side. This
is another instance where having a written policy in place is important.
A comprehensive policy governing advertising acceptance--and making it
clear that the policy is viewpoint neutral--would minimize the risk of
a lawsuit (or perhaps even a campus controversy) over the staff's decision
to accept or reject a specific ad.
O.J. TRIAL LEADS TO REVIEW OF RULE 980
The full repercussions from the O.J. Simpson trial may not be understood until sometime in the next millennium. However, one thing is clear now: this controversial case has caused lawyers, judges, public officials and journalists to rethink the entire fair trial-free press issue. The first significant consequence could be more restrictions on cameras in the courts.
In late 1995, a major review of the role of cameras in California courtrooms was launched in the aftermath of the Simpson trial. The California Judicial Council convened a task force to reconsider all aspects of the question of cameras in the courtroom and to recommend possible changes in Rule 980, the court rule governing photographic access to California courts. At this writing, the task force had conducted several public hearings on this issue. Organizations representing the media generally argued that Rule 980 should not be changed because of any one case, no matter how sensational (and exceptional) that case might be. Others urged sweeping changes, up to and including a ban on television and still photographic coverage of most court proceedings.
For longtime observers of the fair trial-free press debate, all of this was a little ironic. Questions that were seemingly resolved years ago were re-opened by the television coverage of the Simpson trial. For many years cameras and recording equipment had been prohibited in the state's courtrooms under an earlier version of Rule 980, which was California's response to some of the journalistic excesses in courtroom reporting that occurred early in this century. In 1980, however, the California Judicial Council joined a growing national trend toward allowing some photographic and electronic media coverage: Rule 980 was amended to permit photographic equipment in trial courtrooms for a one-year experimental period. The experiment was extended and in 1984 the Judicial Council finally made photographic access to the courts permanent by rewriting Rule 980 in its modern form.
Under the post-1984 version of Rule 980, trial judges were given the authority to allow broadcast and photographic coverage--with or without the consent of all parties to the case. In many instances, participants (most often criminal defendants) object to the presence of cameras or video equipment in court. In spite of such objections, Rule 980 leaves the decision up to judges: they may allow photographic coverage of their courtrooms if they so choose.
The present version of Rule 980 is by no means a blank check for the news media even if a judge permits cameras: it includes tough restrictions on broadcast and photographic coverage of the state's courtrooms. For example, camera arrangements must be made in advance, and pooling arrangements (in which competing news organizations share one video feed rather than each having its own cameras) are required in most cases. Rule 980 restricts the noise that a camera may produce. Also, any indicating device such as a light that reveals when a camera is operating must not be visible in the courtroom. And there is something of a dress code for photographers and broadcast crews: red blazers that say "Eyewitness News" are definitely not welcome!
The present version of Rule 980 is attached to this report. Proposals to change it have come from many sources, including even some news organizations. One of the many ironies of all of this is that for years many lawyers and judges contended that gavel-to-gavel coverage of a trial would be fine: what they objected to was the showing of sensational excerpts out of context on the evening news. Now, of course, many are saying that the gavel-to-gavel coverage of the Simpson case interfered with the administration of justice. The existence of a television audience numbering in the millions inevitably alters almost every aspect of the process, they say.
Even if Rule 980 is not changed, the Simpson case has already made judges
more reluctant to allow television coverage of high-profile cases. Within
weeks of the Simpson verdict, judges barred cameras from: the second murder
trial of the Menendez brothers, the drive-by shooting trial of rap musician
Snoop Doggy Dogg, the trial of the man accused of abducting and murdering
12-year-old Polly Klaas, and the arraignment of a Northern California man
accused of attacking his estranged wife with a knife while telling her,
"O.J. got away with it and so will I."
CALIFORNIA'S ANTI-SLAPP LAW PROTECTS THE MEDIA
Few new statutory laws have ever had a more dramatic impact on mass media law than California's new law curtailing strategic lawsuits against public participation (the anti-SLAPP law).
As noted in last year's report, the anti-SLAPP law was enacted in 1992. It immediately changed the basic strategy in many lawsuits for libel or slander. In its first three years of existence, it has been used to win the early dismissal of several hundred lawsuits. By late 1995 there had been six different precedent-setting decisions by California appellate courts interpreting the anti-SLAPP law--including one holding that a corporate media defendant may use it to get a non-meritorious libel suit dismissed quickly.
The anti-SLAPP law was primarily intended to protect citizen activists who are sued for speaking out on a controversial issue in the public arena, typically by opposing a real estate developer's proposals at hearings of a planning commission or city council. There has been a growing trend for well-heeled corporations to sue these citizen activists as a way of intimidating them into silence. Such lawsuits were given the SLAPP acronym because they take aim at the very foundation of democracy: the right of citizens to speak out on local public issues.
Under the anti-SLAPP law, anyone who is sued for his/her exercise of First Amendment activities in the public arena can file a special motion to have the lawsuit dismissed early in the litigation process. The law requires the prompt dismissal of such lawsuits unless the plaintiff can show a "probability" of winning the case on its merits. The anti-SLAPP law is found in Section 425.16 of the Code of Civil Procedure; a copy is attached to this report.
What happened in 1995 that is so important for journalists is this: in a decision called Lafayette Morehouse Inc. v. Chronicle Publishing Co. (37 Cal. App.4th 755), an appellate court held that the law protects corporate media owners, not just citizen activists, and permits them to have frivolous libel suits dismissed almost as soon as they are filed. In this case, the operators of a non-accredited "university" that offered a Ph.D. degree in "sensuality" sued the San Francisco Chronicle for reporting a controversy involving the university. The university had opened its campus near Lafayette to a large number of homeless people; neighbors complained to Contra Costa County officials. There were several public hearings concerning the university's new residents and the problems they were causing, duly reported in the Chronicle, which also reported (correctly) that the proprietors of the university had faced drug-related criminal charges.
The court said the anti-SLAPP law was clearly intended to protect anyone or any corporation that engages in First Amendment activities in the public arena, and ruled that newspaper coverage of a controversy that includes hearings before a government agency falls within the scope of the law. The appellate court upheld a trial court's dismissal of the libel suit without even allowing the plaintiffs to conduct pretrial discovery. The court also ordered the plaintiffs to pay the Chronicle's legal expenses in seeking the dismissal of the case, as permitted by the anti-SLAPP law.
While the Lafayette Morehouse case does not clear the way for the media to use the anti-SLAPP law in all libel cases, it does make it easier to get a libel case dismissed when the case results from coverage of a controversial issue that has been addressed in government proceedings.
However, not all of the recent appellate court decisions on the anti-SLAPP law have been favorable to the news media and other defendants. In Robertson v. Rodriguez (36 Cal. App.4th 347), another 1995 decision, an appellate court interpreted the "probability" requirement to mean only that the plaintiff must present a prima facie case to avoid having the lawsuit dismissed. That is, the plaintiff must allege that everything he/she must prove to win the lawsuit can be proven. This ruling was disappointing to advocates of the anti-SLAPP law: they wanted the "probability" test interpreted more literally to mean the lawsuit should be dismissed unless it is "more likely than not" that the plaintiff will actually win the case at trial. On the other hand, in Evans v. Unkow (38 Cal.App.4th 1490), still another 1995 appellate decision, an appellate court ruled that to avoid a dismissal the plaintiff has to offer specific evidence upfront to show that all of the elements of the case can be proven. The plaintiff cannot rely on the customary lawyer's practice of filing a lawsuit based on "information and belief" that a wrong has been committed--and then attempting to obtain the facts needed to justify the lawsuit later during the discovery process.
Taken together, the Evans and Lafayette Morehouse decisions
could sharply curtail the filing of frivolous libel suits against news
organizations as well as individual citizens who engage in First Amendment
activities in the public arena.