Morro Bay law update, 1997
(This was prepared for the 1997 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, who has been doing these annual updates for so long that he was called an "institution" when he received the JACC Distinguished Service Award last year).
Rarely have there been more legal developments that could affect the
community college media in any one year than there were in 1996. There
were changes (and threats of change) in areas as diverse as libel and privacy,
courtroom access, subpoenas and the basic First Amendment rights of the
college press. This paper summarizes just a few of the highlights.
JOURNALISTS AND CONFIDENTIAL INFORMATION
When a photographer for the Contra Costa College Advocate faced a subpoena last fall, it forced everyone in community college journalism to reconsider the problem of protecting confidential information. Although the local district attorney's office ultimately withdrew the subpoena after several weeks of brinkmanship, there must have been hundreds of suddenly-relevant discussions of the California shield law and the concept of newsgatherer's privilege at other community colleges.
The Contra Costa subpoena resulted from a gang-related on-campus murder just after 10 a.m. Although local police were on the scene before the student photographer arrived, the authorities demanded his unpublished negatives and other information he might have. After media organizations rallied to the student's support--and a San Francisco law firm donated many pro bono hours to his defense--the problem evaporated.
To most observers, it seemed clear that the DA's office had little chance to prevail in court. The shield law, which was placed in the state Constitution as a ballot measure in 1980, provides journalists with nearly complete protection from subpoenas under circumstances such as these. While the California Supreme Court has held that the defense in a criminal case may be able to penetrate the shield if a journalist has evidence that could help exonerate a defendant, no appellate court has created such a loophole when it is the prosecution seeking evidence, particularly if its relevance is as questionable as it was in this case. Perhaps the main question that troubled observers in this case was that no appellate court of record has ever ruled on the shield law's applicability to the student press. Nothing in the language of the shield law would suggest that student journalists are excluded. Nonetheless, this seemed to be the DA's one possible way to get around the shield law; it might have led to a disastrous precedent for student journalists.
Shortly before this case exploded onto the JACC-FAC discussion group on the Internet, a California appellate court handed down a new ruling on the state shield law that was a dramatic victory for journalists: In re Willon (47 Cal. App. 4th 1080). In this 1996 case, an appellate court in San Jose overturned a contempt citation that had been imposed on KNTV reporter Beth Willon for refusing to reveal where she obtained confidential information about the high-profile trial of Richard Allen Davis for the kidnap-murder of 12-year-old Polly Klaas. Early in the trial, Willon reported that according to sources "close to the case," the girl's body was too badly decomposed to determine if she had been sexually assaulted and Davis had not been questioned about sexual assaults when he confessed.
That information was covered by a "gag order," and the judge handling the case ordered Willon to reveal her sources. When she refused, she was cited for contempt of court. But the appellate court overturned the contempt citation. The court said that someone in Willon's situation should not be cited for contempt unless there is a substantial probability that withholding the information she possessed (in this case, the names of those who violated the gag order) would impair the defendant's right to a fair trial.
The U.S. Supreme Court has used the substantial probability test
in a number of cases--but none exactly like this case. Even so, a California
appellate court chose to adopt that standard instead of the reasonable
possibility test used by the California Supreme Court in earlier rulings
on the California shield law. The substantial probability test makes it
much harder for a judge to justify sanctions against a journalist for refusing
to reveal confidential information, of course. The Santa Clara County District
Attorney's office said In re Willon would be appealed to the state
Supreme Court. Unless the Supreme Court intervenes, the Willon case
will make it easier for journalists to justify refusing to reveal confidential
information, even when ordered to do so by a judge in a criminal case.
THE ANTI-SLAPP LAW MAKES NEWS AGAIN
For several years running, these updates have discussed the enormous impact that California's pioneering anti-SLAPP law is having on libel litigation. Perhaps no law enacted since the Brown Act has been more helpful to journalists in this state.
The anti-SLAPP law is designed to curb strategic lawsuits against public participation by allowing the defendant to get meritless lawsuits dismissed very quickly--before the defense's legal bills become prohibitive. As indicated in earlier Morro Bay updates, the anti-SLAPP law protects not only private individuals who speak out on controversial issues in the public arena but also the news media that cover these public controversies. As last year's report noted, in 1995 a California appellate court held that even a newspaper as large as the San Francisco Chronicle can use the anti-SLAPP law, which is found in section 425.16 of the California Code of Civil Procedure. Last year this case, Lafayette Morehouse Inc. v. Chronicle Publishing Co. (37 Cal. App. 4th 855), was appealed to the U.S. Supreme Court by the frustrated plaintiff. The nation's highest court has now refused to hear the appeal, leaving the California court's decision intact.
Meanwhile, 1996 saw three more appellate court decisions on the anti-SLAPP law: Beilenson v. Superior Court (44 Cal. App. 4th 944), Church of Scientology v. Wollersheim (42 Cal App. 4th 628) and Bradbury v. Superior Court (49 Cal. App. 4th 1108).
In the Beilenson case, the court held that a politician (in this instance Congressman Anthony Beilenson) may use the anti-SLAPP law to dispose of a meritless lawsuit resulting from campaign literature. Richard Sybert, who ran against Beilenson and lost, sued Beilenson for libel because one of Beilenson's campaign mailers criticized Sybert for maintaining a private law practice while on the state payroll--and said that this was a "ripoff." Beilenson contended that everything in the mailer was either true or a constitutionally protected expression of opinion. The appellate court agreed, declaring, "The Constitution protects everyone--even politicians." The court held that the anti-SLAPP law protects candidates for office who engage in campaign rhetoric just as it protects citizen activists who speak out on public issues. In either case, meritless harassment lawsuits must be dismissed quickly under the anti-SLAPP law. In the 1996 Scientology decision, an appellate court held that the anti-SLAPP law applies to all lawsuits arising from public participation, not just lawsuits for libel and related torts. In this case the Church of Scientology filed a second lawsuit against Lawrence Wollersheim after he won an earlier lawsuit against the church, in an attempt to get the first lawsuit overturned. For a variety of technical reasons, the court ruled that the second lawsuit was intended to harass Wollersheim for filing the first lawsuit and held that he could use the anti-SLAPP law to get it dismissed.
In the Bradbury case, an appellate court held that the anti-SLAPP law protects government officials and government entities as well as private citizens. In this case, a deputy sheriff sued several Ventura County officials after they disseminated statements critical of his motivation in an officer-involved killing. The appellate court said government officials have a First Amendment right to inform the public about issues such as this one. And they also have the right to invoke the anti-SLAPP law to dispose of meritless lawsuits based on their public statements.
The media won another major victory under the anti-SLAPP law on Feb.
18, 1997, the day this report was written. In Braun v. Chronicle Publishing
Co. (1997 Cal. App. LEXIS 110), an appellate court tossed out a doctor's
libel suit against the San Francisco Chronicle and one of its reporters.
The doctor headed a medical training unit at the University of California,
San Francisco. The paper published five articles covering a state auditor's
investigation that led to the unit's shutdown and the director's termination.
In sweeping language, the appellate court affirmed the paper's right to
cover this type of story without having to defend a harassment libel suit.
COURT DOCUMENTS AND THE PRIVILEGE DEFENSE
A recent news event at Bakersfield College underscores the importance of the qualified privilege defense in libel cases. And in 1996, the legislature acted to expand the scope of this libel defense in California.
In the Bakersfield incident, a faculty member was arrested and placed on leave after he allegedly struck a campus employee with whom he had been involved. As this complex story unfolded, it turned out that this faculty member was also entangled in several other controversies involving charges and countercharges of sexual harassment. When campus officials refused to release many of the details on the ground that this involved a confidential campus disciplinary matter, student journalists went downtown and obtained court documents that revealed many previously unpublished details of the case.
Obviously, when students do this kind of reporting, they have to know the limits of the qualified privilege libel defense. What is privileged--and when?
Under California law, accurate reports of the contents of court documents are privileged once they are actually filed in court--even if the charges and countercharges they contain turn out to be false. However, there are some pitfalls and limitations in this area, as recent cases and a 1996 legislative enactment illustrate.
For a time, the privilege defense protected the news media--but not persons such as lawyers who might give court documents to the media. In a 1994 decision, Shahvar v. Superior Court (25 Cal. App. 4th 653), an appellate court held that a lawyer who gave legal documents to a journalist was not protected from liability even if the documents themselves were privileged. If a legal document contained a libelous statement, the lawyer could be sued for republishing the libel by passing the document on to the media. Under this decision, a lawyer could tell a journalist where to find a legal document in court files, but if the lawyer actually gave the document to the journalist, the lawyer could be sued.
Alarmed that this decision might dry up many sources of information for journalists, the media lobbied for a change in the law. In 1996, the legislature enacted SB1540, extending the "litigation privilege" in section 47 of the Civil Code to cover judicial, legislative and other official documents that are sent to the media by lawyers.
While the legislature was expanding the litigation privilege, in 1996
an appellate court said that the privilege defense does not encompass statements
made about a pending lawsuit at a press conference by a celebrity
or his lawyers. In Rothman v. Jackson, entertainer Michael Jackson
and his attorneys said a youth who claimed Jackson had molested him had
fabricated the story--with help from his father and their attorney--in
a plot to extort money from Jackson. Barry Rothman, the family's original
attorney, sued Jackson for libel, denying that the charges against Jackson
were fabricated (Jackson eventually paid the boy's family an estimated
$25 million to drop their lawsuit). The key issue in Rothman's libel lawsuit
was whether the press conference was privileged: if it was, he had no case.
In ruling that the press conference did not fall within the privilege defense,
the appellate court noted that the purpose of the privilege was to protect
freedom of speech in court, not to allow celebrities to try their cases
in the court of public opinion! "No inhibitions are imposed upon the rhetoric
an attorney may use in official court papers, pleadings and arguments,"
the appellate court said, adding that "attorneys who wish to litigate their
cases in the press do so at their own risk... without the mantle of absolute
THE FOOD LION CONTROVERSY: CAMERAS AND PRIVACY
A jury recently ordered ABC-TV to pay the Food Lion grocery chain $5.5 million in punitive damages because two ABC staffers became Food Lion employees and used hidden cameras to investigate the company. Even before this highly publicized verdict, the courts began to crack down in photographic intrusion cases. Two recent California appellate court decisions illustrate the potential legal hazards in this area.
In 1996, a California appellate court ruled that a television program may have violated an accident victim's right of privacy by showing video of her undergoing emergency medical treatment inside a rescue helicopter. In Shulman v. Group W Productions (51 Cal. App. 4th 850), the court said that the producers of a show called On Scene: Emergency Response had a right to cover the workings of an emergency medical response unit. However, the court also said that by showing medical treatment of an accident victim inside a helicopter the video crew may have invaded the victim's privacy. The court said there was a difference between showing the accident scene, which was in plain view of the public, and showing medical procedures inside the helicopter. In so ruling, the appellate court reversed a trial court decision to dismiss the victim's lawsuit against Group W and said she had a right to take her case to trial.
The Shulman decision raises questions about the legality of taking
pictures in other private places (such as private homes) when journalists
accompany public safety officials who are responding in emergency situations.
A 1993 decision illustrates this problem. In the 1993 case, a federal judge
ruled against CBS after a Street Stories crew accompanied a mobile
crisis intervention team to a San Francisco home where a domestic dispute
had turned violent. In Baugh v. CBS (828 F.Supp. 745), Yolanda Baugh
contended that a crew entered her home to videotape the work of crisis
intervention counselors without her permission, and that crew members falsely
identified themselves as being from the local district attorney's office.
Judge Fern Smith ruled that broadcasters had the right to air the segment
because it was newsworthy, dismissing most of Baugh's case against several
television stations. However, she also ruled that Baugh had the right to
pursue her case for intrusion and fraud against CBS and anyone else who
had crew members on the scene.
MORE O.J. FALLOUT
Although Governor Pete Wilson was probably expressing a sentiment felt by millions of people when he said he was tired of hearing about O.J. Simpson at the end of the civil lawsuit, this ongoing story continues to have a major impact on communications law--in California and elsewhere.
In 1996, the California Judicial Council revised Rule 980, which governs photographic coverage of the state's trial courts, but not nearly as drastically as a task force had recommended. The task force urged a ban on cameras at all pretrial proceedings and all parts of trials that are conducted outside the jury's presence.
The new version of Rule 980 does forbid camera coverage of some parts of criminal proceedings, including conferences in a judge's chambers, court proceedings that are closed to the public, private attorney conferences, and jury selection. The rule also requires that cameras not show jurors or spectators in the courtroom.
The new rule places much more emphasis on the judge's role in determining whether cameras will be allowed. Under the new rule, judges now have a list of criteria to follow in considering whether to allow cameras. Among other factors, judges must consider: whether the prosecution and defense favor or oppose cameras, how cameras would affect the ability to select an impartial jury, how cameras would affect any ongoing law enforcement investigation, whether cameras might affect unresolved questions of the identification of suspects, and how cameras might affect any later proceedings in the same case.
Also, the new rule redefines the term "court" to include not only the courtroom but also the entire courthouse and its entrances, thereby allowing judges to control the conduct of photographers and video crews not only in the courtroom but in surrounding areas. And judges were given new authority to impose sanctions on those who violate the rules.
Under the 1996 rule, media organizations must request permission for camera access five days in advance. Judges may grant or deny access without holding a hearing on the request, and judges may also revoke permission for cameras at any time without giving an explanation.
When Simpson's civil trial began in late 1996, still more legal questions concerning journalistic access arose. Judge Hiroshi Fujisaki imposed severe restrictions on the media's (and the public's) access to the courtroom. However, in Cable News Network v. Superior Court, an appellate court overturned some of the judge's orders in an unpublished opinion. The judge was allowed to bar cameras from the civil trial, but several other restrictions were lifted. A ban on sketch artists drawing in the courtroom was overruled, although they may not use sketchpads bigger than a legal tablet. Also, a ban on sketches of the judge himself was overturned by the appellate court, leaving the artists free to sketch almost all trial participants except the jurors.
The media were allowed to have an audio feed of the court proceedings in a nearby press room because seating in the courtroom itself was so limited, although all broadcasts of this audio feed were forbidden. In addition, the appellate court overturned some parts of the judge's gag order that had barred most out-of-court statements by lawyers and other trial participants. For example, the judge's ban on public statements to the media by witnesses "under control of counsel" was rejected, as was a ban on all statements by attorneys expressing opinions about the court or the trial proceedings. The appellate court said this part of the gag order was overbroad, violating the First Amendment.
While a great deal of public attention was focused on the O.J. Simpson
case, an appellate court quietly issued a broad ruling on public access
to the courts in another case, NBC Subsidiary v. Superior Court
(49 Cal. App. 4th 487). In this case, the appellate court held that the
press and public have a limited right to attend civil trials as well as
criminal trials, overturning a number of restrictions that had been imposed
on the press and public during a trial pitting actor Clint Eastwood against
his former lover, actress Sondra Locke. Among the restrictions overturned
by the appellate court was one requiring the courtroom to be cleared of
everyone except trial participants during every break when the jury was
not present. However, in late 1996 the California Supreme Court set aside
this appellate court decision and agreed to issue its own ruling on open-courtroom
issues. Depending on the Supreme Court's ruling, this case could change
journalists' access rights far more than the O.J. Simpson case has.
REVIEWING THE BASICS: CENSORSHIP AND FREEDOM
Perhaps no trend on campus is more ominous for college journalists that the growing inclination of administrators to assert direct control over the student press. There have been incidents of this kind at several community colleges in the past year. Perhaps the most troubling incident arose at San Joaquin Delta College, where the president (apparently acting on the advice of a lawyer) declared that the U.S. Supreme Court's notorious Hazelwood v. Kuhlmeier decision (484 U.S. 260, 1988) gave him the right to control the student newspaper. (Hazelwood held that the First Amendment does not protect most official high school newspapers from administrative censorship). He cited many similarities between the high school newspaper involved in Hazelwood and the Delta Impact, including its tie to a journalism class and the presence of a faculty adviser. He also said that a community college has more in common with a high school than it does with a large university! The Delta president chose to ignore one important issue, of course: a crucial consideration in the Hazelwood case was the fact that the readership included many 14-year-olds, while community college newspapers have few non-adult readers.
The Hazelwood majority opinion included a footnote making it clear that this case did not strip college newspapers of their First Amendment protection. In footnote seven, the court said:
"A number of lower courts have similarly recognized that educators' decisions with regard to the content of school-sponsored newspapers, dramatic productions, and other expressive activities are entitled to substantial deference. (case citations omitted) We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level." (emphasis added)
The Hazelwood decision did not overrule any of the previous decisions of lower federal courts extending First Amendment protection even to official college newspapers. However, neither did it endorse those decisions. Moreover, almost all of the leading cases upholding the First Amendment rights of college journalists are now more than 20 years old: there have been virtually no new precedent-setting cases in this area of law in recent years. As a result, some college administrators and their lawyers may think the time is right for a frontal assault on the First Amendment rights of college journalists. And there is much language in the Hazelwood decision that might offer them encouragement.
Writing for the majority, Justice Byron White declared that the school paper in the Hazelwood case was NOT a traditional First Amendment forum but rather a school-sponsored activity that had been controlled primarily by school officials, notably a faculty adviser who selected the editors, established the publication schedule and decided how many pages would be published in each issue. White said these were very different facts than those involved in the high court's earlier rulings upholding the First Amendment rights of students, including the landmark case of Tinker v. Community School District (393 U.S. 503, 1969). White said:
"The question whether the First Amendment requires a school to tolerate particular student speech--the question we addressed in Tinker--is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."
Responding to the Hazelwood decision, journalism educators in many states lobbied their state legislatures to adopt statutory laws like California Education Code section 48907, which limits the impact of Hazelwood here. By 1996, Colorado, Iowa and Massachusetts had enacted such laws. Section 48907 (which applies only to the public schools, not to community colleges) forbids administrative censorship of official school newspapers except when it is necessary to prevent the publication of a libel, obscenity or material that might lead to unlawful or disruptive acts by students.
Significantly, Education Code section 76120, the community college equivalent of section 48907, says nothing about the status of official student newspapers. It contains broad guarantees of free expression through bulletin boards and literature distribution, but section 48907's language concerning student publications is missing from section 76120.
In the early 1990s the state legislature responded to the growing pressures for political correctness on college campuses by enacting the so-called "Leonard law," proposed by Sen. William Leonard of Upland. The community college version of this law is found in section 66301 of the Education Code. It says that students enjoy the same First Amendment rights on campus that they enjoy elsewhere, but it, too, is silent about officially sponsored student newspapers.
In short, to defend the First Amendment rights of campus journalists
today, one must turn to federal court decisions from the 1960s and the
1970s. These cases have not been overturned: they are still good law. But
given the Hazelwood decision and the current political climate,
it is entirely possible that an unsympathetic federal or state court could
undercut the rights of the community college press, given a case with hard-to-defend
facts. Perhaps the best way to assure the continued editorial independence
of a student newspaper today is to set up policies that clearly establish
the paper as an open forum for the campus and community--with a broad range
of material on controversial issues that is contributed not only by the
staff but by non-staff members, and with the final say over the content,
budget and staffing clearly in the hands of students, not the faculty.