654 P.2d 673 (Wash. 1982), 47938-1, Rhinehart v. Seattle Times Co.

Docket Nº:47938-1, 48155-5.
Citation:654 P.2d 673, 98 Wn.2d 226
Opinion Judge:ROSELLINI, Justice.
Party Name:Keith Milton RHINEHART, a single person; the Aquarian Foundation, a Washington not-for-profit corporation; Kathi Bailey, a married person, Lillian Young, a married person, Toni Strauch, a married person, Sylvia Corwin, and Ilse Taylor, representing women who were members of the Aquarian Foundation on or after March 17, 1978, Respondents, v. The SEA
Attorney:Davis, Wright, Todd, Riese & Jones, Bruce E. H. Johnson, Evan L. Schwab, Seattle, for petitioners. Edwards & Barbieri, Malcolm L. Edwards, Robert G. Sieh, Seattle, for respondents.
Judge Panel:BRACHTENBACH, C.J., and STAFFORD, WILLIAM H. WILLIAMS and DORE, JJ., concur. DOLLIVER, Justice (concurring). BRACHTENBACH, C.J., and DIMMICK, J., concur. UTTER, Justice (dissenting).
Case Date:December 02, 1982
Court:Supreme Court of Washington

Page 673

654 P.2d 673 (Wash. 1982)

98 Wn.2d 226

Keith Milton RHINEHART, a single person; the Aquarian

Foundation, a Washington not-for-profit corporation; Kathi

Bailey, a married person, Lillian Young, a married person,

Toni Strauch, a married person, Sylvia Corwin, and Ilse

Taylor, representing women who were members of the Aquarian

Foundation on or after March 17, 1978, Respondents,


The SEATTLE TIMES COMPANY, a Delaware corporation, d/b/a The

Seattle Times; Walla Walla Union-Bulletin, Inc.; Erik

Lacitis and Jane Doe Lacitis; John Wilson and Rebecca

Wilson; John McCoy and Karen McCoy, Petitioners.

Nos. 47938-1, 48155-5.

Supreme Court of Washington, En Banc.

December 2, 1982

Page 674

As Changed December 13, 1982.

Page 675

[98 Wn.2d 227] Davis, Wright, Todd, Riese & Jones, Bruce E. H. Johnson, Evan L. Schwab, Seattle, for petitioners.

Edwards & Barbieri, Malcolm L. Edwards, Robert G. Sieh, Seattle, for respondents.


The Seattle Times published stories concerning the Aquarian Foundation and its leader, Rhinehart, who founded the organization in the 1950s. Articles about the foundation, a "spiritualist church", also appeared in the Walla Walla Union-Bulletin, describing some bizarre performances which were presented at a "religious presentation" staged for inmates at the state penitentiary at Walla Walla.

Rhinehart brought this action on behalf of himself and the foundation, seeking damages for defamation and invasion of privacy. He was joined by four members who participated in the Walla Walla presentation.

The defendants denied many of the allegations and asserted affirmative defenses including claims of privilege. [98 Wn.2d 228] They undertook discovery with respect to the plaintiffs' financial affairs, membership and donors. This information was relevant upon the issues of truth and damages. It appears that the attorney for the defendants assured counsel for the plaintiffs that financial materials disclosed to him would be kept confidential. The defendants were provided with income tax returns of Rhinehart and some financial information relating to the other plaintiffs. The plaintiffs refused, however, to disclose other desired information, such as the present address of Rhinehart, who allegedly had fled the state because of threats to his life resulting from the publicity given the foundation by the defendants.

The defendants sought and were granted an order compelling discovery, and the plaintiffs obtained a protective order limiting the use which could be made of information derived through the discovery process. The order provided:

3. The defendants and each of them shall make no use of and shall not disseminate the information ... which is gained through discovery, other than such use as is necessary in order for the discovering party to prepare and try the case. As a result, information gained by a defendant through the discovery process may not be published by any of the defendants or made available to any news media for publication or dissemination. This protective order has no application except to information gained by the defendants through the use of the discovery processes.

Clerk's Papers, at 26.

The plaintiffs objected to the order compelling discovery on the grounds that it invaded their right to privacy and freedoms of religion and association. The defendants attacked the protective order on the ground that it denied them freedom of the press and of speech, guaranteed by the first amendment to the United States Constitution and by Const. art. 1, § 5.

The trial court filed a memorandum opinion explaining the protective order. In that opinion it found that the defendants were entitled to make discovery under [98 Wn.2d 229] Civil Rule 26(b)(1) and that the plaintiffs had reasonable grounds for the issuance of a protective order in connection with information covered by the order. It also observed that if protective orders were not available, "it could have a chilling effect on a party's willingness to bring his case to court." The court said:

If the absence of a Protective Order has the effect of denying a party access to the courts, this would be a result just as damaging to justice and to individual rights as can result from an impingement upon First Amendment rights. I would put access to the courts on an equal plane of importance with freedom of the press because it is through the courts that our fundamental freedoms are protected and enforced.

Clerk's Papers, at 63.

Both of the court's orders are Before us on this discretionary review.

Page 676

The gist of the defendants' theory in attacking the protective order is that CR 26(c) is unconstitutional insofar as it permits the court to limit the use which the press or its members can make of information which they have received through discovery, upon a mere showing of "good cause".

Under the federal constitution, persons engaged in the business or profession of publishing or otherwise communicating with the public are entitled to no greater protection than citizens who are not so engaged. Their right of access to information within the control of the government is the same. Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (access to jails); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (access to tapes not placed in evidence at trial); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (access to prisons and inmates). See Estes v. Texas, 381 U.S. 532, 589, 85 S.Ct. 1628, 1663, 14 L.Ed.2d 543 (1965) (Harlan, J. concurring).

Nor is there any basis for holding that a publisher, when he is a party to litigation, enjoys a greater immunity from protective orders than do other litigants, as the defendants [98 Wn.2d 230] would have us hold. Neither the first and fourteenth amendments to the United States Constitution nor article 1, section 5 of our state constitution makes any distinction among citizens in conferring their protections.

Therefore, whatever power the courts have to enter protective orders to forestall the giving of unwanted publicity to the fruits of discovery, that power extends to all litigants.

The defendants maintain that a protective order which forbids publication of matters learned through discovery constitutes a "prior restraint on expression" which, while not unconstitutional per se, bears a "heavy presumption" against its validity. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). The Supreme Court in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976), indicated that prior restraints "are the most serious and the least tolerable infringement on First Amendment rights." At common law the term "prior restraint" referred to a system of unreviewable administrative censorship or licensing. But the meaning has been extended through a long line of cases beginning with Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) to include judicial orders having an impact similar to administrative censorship.

The order here does restrain the publication of certain matters, although the restraint as to those items which are later admitted into evidence will terminate at that time. The restraint is not inspired by any governmental objection to the content of the publication, and the subject matter involves no element of advocacy or dissemination of ideas. We would be inclined to the view that these facts should lighten the burden of justifying the restraint. However, the United States Supreme Court has found prior restraints where the only matter involved was evidentiary materials derived from judicial proceedings. See Nebraska Press Ass'n v. Stuart, supra; Smith v. Daily Mail Pub'g Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979). [98 Wn.2d 231]

We do not believe that the prior restraint doctrine applies to protective orders. We do not reach this issue, however, because even under the prior restraint doctrine protective orders can be justified. Under this doctrine the burden of justifying the restraint rests primarily upon this court, inasmuch as it results from the implementation of CR 26(c), which we have adopted, using the federal rules (Fed.R.Civ.P. 26(c)) as its basis.

We must look then to the reasons for the rule and the nature of the interests involved to see if it is justified.

As the Supreme Court directed in Nebraska Press Ass'n, we must also examine whether the order here furthers those purposes and interests, whether other measures

Page 677

would be likely to mitigate the effects of the unwanted publicity involved here; and how effectively the protective order would operate to prevent the threatened harm.

With respect to the possibility of mitigation by other measures, the defendants suggest nothing other than denial of discovery altogether, which is admittedly within the power of the court. Since this would have the effect of closing access to the material sought to be published and denying the defendants the benefits of discovery, it is not a satisfactory alternative. As for the effectiveness of the protective order, it must be assumed that the defendants will abide by the court's order, and as will appear later, the evil against which the rule is directed is a litigant's disclosure of information furnished him in the discovery process. Our main inquiry, therefore, will concern the interests which justify a rule which authorizes protective orders in circumstances such as these. Such orders are meant to protect the health and integrity of the discovery process, as much as to protect the parties who participate in it.

CR 26 pertains to...

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