McCoy v. Hearst Corp.

• Decision Date: 13 November 1986
• Docket Number: S.F. 24967
• Citation: 42 Cal.3d 835,231 Cal.Rptr. 518
• Court: California Supreme Court
• Parties: , 727 P.2d 711, 13 Media L. Rep. 2169 Frank McCOY et al., Plaintiffs and Respondents, v. HEARST CORPORATION et al., Defendants and Appellants.

Page 518

231 Cal.Rptr. 518

42 Cal.3d 835, 727 P.2d 711, 13 Media L. Rep. 2169

Frank McCOY et al., Plaintiffs and Respondents, v. HEARST CORPORATION et al., Defendants and Appellants.

S.F. 24967.

Supreme Court of California In Bank.

Nov. 13, 1986.

Pillsbury, Madison & Sutro, Walter R. Allan, Jerome C. Dougherty, Kevin M. Fong, Michael J. Bettinger, E. Jones Kleines, Kleines, Ballati & Getchell, Arthur Brunwasser, Margaret C. Crosby, Alan L. Schlosser, Edward M. Chen, San Francisco, Arthur B. Hanson and Hanson, O'Brien, Birney & Butler, Washington, D.C., for defendants and appellants.

W. Terry Maguire, Richard M. Schmidt, Cohn & Marks, Kirk B. Freeman, Washington, D.C., Crosby, Heafey, Roach & May, Peter W. Davis, John E. Carne, Judith R. Epstein, Oakland, Kotler & Kotler, Jonathan Kotler, Walnut Creek, Gibson, Dunn & Crutcher, Robert S. Warren, Rex S. Heinke, Kelli L. Sager, Los Angeles, Gary B. Pruitt, Sacramento, Mullen & Stabile, and Gary D. Stabile, Manhattan Beach, as amici curiae on behalf of defendants and appellants.

Charles O. Morgan, Jr., San Francisco, for plaintiffs and respondents.

BIRD, Chief Justice.

Do the First Amendment to the United States Constitution and California Constitution article I, section 2, protect two reporters and a newspaper against a libel judgment when they obtained and published a prisoner's affidavit containing allegations of official misconduct on the part of two police inspectors and a prosecutor?

I.

A suit for libel was brought against the Hearst Corporation, which owns the San Francisco Examiner (hereafter Examiner), and two reporters, Raul Ramirez and Lowell Bergman, by respondents, San Francisco Police Inspectors Frank McCoy and Edward Erdelatz, Jr., and former Assistant District Attorney Pierre Merle. The jury returned a verdict in favor of respondents in the sum of $4,560,000. The Court of Appeal affirmed the judgment.

Respondents complained they were libeled by a series of articles published in the Examiner on May 19, 20 and 21, 1976, written by Raul Ramirez with the assistance of Lowell Bergman. The articles purported to expose the wrongful conviction of Richard Lee for the 1972 San Francisco Chinatown killing of Poole Leong. According to the Examiner, Lee's conviction was obtained as a result of respondents' misconduct involving the state's key witness, Thomas Porter. ¹

The centerpiece of the articles, and the basis of respondents' libel claim, was the affidavit of Thomas Porter. This affidavit was reprinted in part in the last article and mentioned in the two previous articles. Porter, Richard Lee's cellmate prior to trial, originally testified at Lee's trial that Lee had confessed the Leong killing to him. However, the Examiner reported that Porter had not only declared this testimony false in a sworn affidavit, but also had charged that respondents procured his trial testimony by threats, coercion, physical assault and promises of leniency. Porter additionally alleged that respondent Merle, who prosecuted the Lee case, provided him with a written story which he memorized with Merle's help and delivered as testimony at the Lee trial.

The article of May 21st also claimed that a State Bar panel had recommended sanctions be taken against respondent Merle for "alleged misconduct" in relation to another Chinatown case.

Shortly after the articles appeared, Attorney Roger Ruffin filed a petition for writ of habeas corpus in superior court on behalf of Richard Lee. The petition alleged that Lee was innocent and that his conviction was based on false and unreliable evidence. Porter's affidavit ² was attached as an exhibit in support of the petition, along with declarations from two eyewitnesses to the Leong killing, May Tom and Weyman Tso.

In response to the habeas corpus petition, investigators from the Attorney General's office located Porter in a halfway house in Wichita, Kansas, and obtained a second affidavit from him on July 22, 1976. In this affidavit, Porter attested that his previous affidavit was false. He signed it, he said, because he was upset at the treatment he had received from the California parole board. Porter denied he had been threatened or forced by anyone to give testimony at the Lee trial, or that any promises had been made to him in exchange for that testimony.

II.

In the landmark decision of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court held that a public official may not recover damages for a defamatory falsehood relating to official conduct unless it is proved "that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (Id., at pp. 279-280, 84 S.Ct. at pp. 725-26.) ³ The high court further declared that in order to ensure that the libel judgment does not run afoul of constitutional principles, it must independently examine the statements in issue and the circumstances under which they were made against the backdrop of the whole record. (Id., at p. 285, 84 S.Ct. at p. 728.)

Recently, in Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502, the court strongly reaffirmed the principle of independent review. "The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law. ... It reflects a deeply held conviction that judges--and particularly Members of this Court--must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice.' " (Id., at pp. 510-511, 104 S.Ct. at pp. 1964-65, emphasis added.)

Bose makes plain that in cases involving the constitutional rule of New York Times, those facts that are germane to the central question of actual malice must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact. (Bose, supra, 466 U.S. at pp. 505-514, 104 S.Ct. at pp. 1962-67.) " 'The simple fact is that First Amendment questions of "constitutional fact" compel this Court's de novo review. [Citations.]' " (Id., at p. 509, fn. 27, 104 S.Ct. at p. 1964, fn. 27, quoting Rosenbloom v. Metromedia (1971) 403 U.S. 29, 54, 91 S.Ct. 1811, 1825, 29 L.Ed.2d 296 (plur. opn. of Brennan, J.); accord Frankson v. Design Space Intern. (Minn.App.1986) 380 N.W.2d 560, 570 (conc. opn. of Foley, J.) [Bose gives appellate court power to conduct de novo review]; Thompson v. Thompson (App.1986) 110 Idaho 93, 714 P.2d 62, 64 [citing Bose for the proposition that constitutionally protected interests such as freedom of speech require appellate courts to conduct "free review" of constitutional facts].) Thus, this court must make an independent assessment of the entire record, but only as it pertains to actual malice. Issues apart from thisconstitutional question need not be reviewed de novo and are subject to the usual rules of appellate review. (Bose, supra, 466 U.S. at p. 514, fn. 31, 104 S.Ct. at p. 1967, fn. 31.)

Bose involved an allegedly libelous article in Consumer Reports critiquing the sound path of the Bose 901 loudspeaker system. The article asserted that the sound tended to wander "about the room." (Bose, supra, 466 U.S. at pp. 487-488, 104 S.Ct. at pp. 1952-53.) The federal district court as trier of fact found that this phrase was a false and disparaging statement of fact since the listeners in the sound test, which was the basis of the article, reported instead that there was sound movement "along the wall" between the two speakers. (Id., at pp. 490-491, 494, 104 S.Ct. at pp. 1954-55, 1956.)

Engineer Arnold Seligson, a Consumers Union employee, supervised the listeners' sound test and interpreted its results in an in-house report. The district court found Seligson's report to be the source of actual malice. In its written findings, the court evaluated Seligson's credibility as a witness and his state of mind when he wrote the report. It concluded that Seligson had knowingly reported a false statement about the speakers' sound movement and, therefore, wrote with actual malice. In making this determination, the district court flatly rejected Seligson's testimony that the two phrases "about the room" and "along the wall" meant about the same thing and expressly found that Seligson's testimony to this effect was not credible. (Bose, supra, 466 U.S. at pp. 494-497, 104 S.Ct. at pp. 1956.)

The court of appeals reversed on the ground that the record could not sustain a finding of actual malice. The court ruled that it must review the actual malice determination de novo and that it was not restricted by the "clearly erroneous" standard of rule 52(a) of the Federal Rules of Civil Procedure (hereafter rule 52(a)). (See Bose, supra, 466 U.S. at pp. 491-492, 104 S.Ct. at pp. 1956-58.) That rule mandates that factual findings shall not be set aside unless "clearly erroneous," and that due regard be given to the opportunity of the trial court to evaluate witness credibility.

The case presented the Supreme Court with an apparent conflict between the New York Times rule of independent appellate review and rule 52(a). (Bose, supra, 466 U.S. at pp. 498-499, 104 S.Ct. at pp. 1958-59.) The Bose court observed that in New York Times, in the parallel context of review of state jury verdicts, it had rejected a similar contention by the plaintiff there that the Seventh Amendment ⁴ precluded independent review of a state jury verdict. (Id., at...