Borreca v. Fasi
| Decision Date | 21 January 1974 |
| Docket Number | Civ. No. 73-4004. |
| Parties | Richard BORRECA and Gannett Pacific Corporation, d/b/a "Honolulu Star-Bulletin", Plaintiffs, v. Frank F. FASI and James Lee Loomis, Defendants. |
| Court | U.S. District Court — District of Hawaii |
David J. Dezzani, Goodsill, Anderson & Quinn, Honolulu, Hawaii, for plaintiffs.
T. Patrick Monaghan, Deputy Corp. Counsel, Richard K. Sharpless, Corp. Counsel, Honolulu, Hawaii, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON PRELIMINARY INJUNCTION
On December 21, 1973, city hall news reporter Richard Borreca and his employer Gannett Pacific Corporation, doing business as Honolulu Star-Bulletin, filed an action in this court pursuant to 42 U.S.C. §§ 1983 and 1985, as authorized by 28 U.S.C. § 1343, requesting an injunction and damages against Frank F. Fasi, Mayor of the City and County of Honolulu, and James Lee Loomis, Administrative Assistant to the Mayor and Director Information and Complaint Office, for alleged actions of defendants denying Borreca access to city hall news.
A motion for a preliminary injunction was heard on January 4, 1974, and granted in part on January 7, 1974. The following constitutes the findings of fact and conclusions of law required by Rule 52, FRCP, in connection with the granting of a preliminary injunction.
The Honolulu Star-Bulletin is Hawaii's leading newspaper of general circulation. Richard Borreca came to Hawaii in 1968, attended the University of Hawaii for two years, then started working for the Honolulu Star-Bulletin as a news reporter in 1970. For the past two years, his assignment has been Honolulu's city hall, which includes attending the mayor's news conferences. He is currently president of the City Hall Correspondents Association. His employer is satisfied with his professional qualifications.
During 1973, Mayor Fasi concluded that Borreca was irresponsible, inaccurate, biased, and malicious in reporting on the mayor and the city administration. This conclusion was based on the news stories written by Borreca, and was reinforced by a report that Borreca had said that the mayor was a "crook" and that Borreca was going to "shaft" the mayor at every opportunity. Mayor Fasi expressed his dislike for Borreca personally and stated that he would not talk to Borreca "until Hell freezes over." He declared Borreca persona non grata at city hall and instructed his staff, and specifically his administrative assistant James Lee Loomis, to keep Borreca out of the mayor's office.
Loomis, on behalf of the mayor and as part of his usual duties, announced general news conferences in the mayor's office for November 2 and 22 and December 13 and 19, 1973.
A general news conference was defined by Loomis as a conference "where all media generally are informed of the mayor's intention to hold a news conference and all are free to attend." Loomis testified as to notice of these conferences that:
The usual format at these news conferences was that a prepared release would be handed out and explained to the attending representatives of the news media who would ask questions mostly confined to the subject matter of the release. There would be some TV camera coverage. The topics discussed related to the business of the City and County of Honolulu.
Borreca presented himself at the mayor's office on November 2, 1973, as the Honolulu Star-Bulletin's representative at the news conference. Loomis informed Borreca that Borreca would not be allowed to attend the news conference. Borreca was in fact blocked and denied entry and no one from the Honolulu Star-Bulletin was in attendance at this conference.
Borreca again presented himself at the mayor's office on November 22, 1973, as the Honolulu Star-Bulletin's representative at that news conference. It is a fair inference from the evidence that Borreca expected to be excluded and purposely sought a confrontation with Loomis, which confrontation occurred and the verbal parts of which Borreca recorded on a portable tape recorder, transcribed, and wrote up for the next day's afternoon newspaper.
Borreca was in fact excluded from this news conference and the two December news conferences and no one from the Honolulu Star-Bulletin was in attendance at these conferences.
Mayor Fasi informed the Honolulu Star-Bulletin that any other reporter from that newspaper would be welcome, but the newspaper declined to change Borreca's assignment or to send another representative to the mayor's news conferences.
It is clear from the evidence that the mayor's objections to Borreca are based solely on what appeared in the Honolulu Star-Bulletin as Borreca's city hall news stories. No other ground for objection has been given, although Loomis mentioned "other acts" by Borreca. These "other acts" turned out to be Loomis' observation that Borreca seldom took notes thereby increasing the probability of inaccurate reporting, and the statements (mentioned above) attributed to Borreca indicating bias and malice against Mayor Fasi. For purposes of this motion for a preliminary injunction only and without prejudice to his right to contest the negative statements made about him by the mayor and Loomis, Borreca offers no rebuttal evidence regarding the accuracy of his reporting or his attitude toward the mayor.
Plaintiffs alleged that Mayor Fasi had instructed other city officials not to talk to Borreca, and requested an injunction against this alleged order. Prior to the January 4, 1974 hearing, Mayor Fasi issued Directive No. 99 dated January 2, 1974, making it clear that it was his personal policy not to deal with Borreca and that each city department head was free to exercise his own discretion in this regard. At the hearing, the parties agreed to continue the motion for an injunction in this regard indefinitely inasmuch as Directive No. 99 appears to have solved whatever problem was believed to have existed in seeking news from other city officials. It was understood that this matter could be moved on by any party at any time if further proceedings were deemed necessary.
Now before the court for decision is that portion of plaintiffs' motion for preliminary injunction relating to Borreca's attendance at the mayor's "press conferences".
Defendants contest the court's jurisdiction, the sufficiency of the complaint to state or of the evidence to support a cause of action, and the appropriateness of a preliminary injunction.
If the complaint states a cause of action under 42 U.S.C. § 1983, then this court has jurisdiction under 28 U.S.C. § 1343.
Freedom of the press as guaranteed by the First Amendment is safeguarded by the due process clause of the Fourteenth Amendment against invasions by state action. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (dictum).
First Amendment freedom of the press includes a limited right of reasonable access to news. Lewis v. Baxley, 368 F.Supp. 768 (M.D.Ala.1973) (three-judge court); Consumers Union of United States, Inc. v. Periodical Correspondents Assn., 365 F.Supp. 18 (D. D.C.1973).
This right of access includes a right of access to the public galleries, the press rooms, and the press conferences dealing with government. Lewis v. Baxley, supra.
The limitations that may be placed by state action on this right of access are determined by a balancing process in which the importance of the news gathering activity and the degree and type of the restraint sought to be imposed are balanced against the state interest to be served. Where First Amendment rights are involved, the asserted state interest must be compelling and the proposed state action must be the least restrictive means available for the asserted governmental end. Lewis v. Baxley, supra.
The foregoing seems obvious and elementary in the light of our political and juridical history.
To continue reading
Request your trial
-
Savage v. Pacific Gas & Electric Co.
...a mayor excluded reporters for a particular newspaper from major press conferences to which the press generally was invited (Borreca v. Fasi, supra, 369 F.Supp. 906), where a district attorney required reporters for a disfavored newspaper to obtain advance appointments not required of other......
-
South Macomb Disposal Authority v. Washington Tp.
...the Arts v. Thomson, 532 F.2d 792, 794 (1st Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); Borreca v. Fasi, 369 F.Supp. 906, 911 (D.Hawaii 1974). The Fifth Circuit has held, however, that a municipal corporation was not a proper plaintiff because it was not a "perso......
-
Medico v. Time, Inc.
...1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965). See Lewis v. Baxley, 368 F.Supp. 768, 775-76 (M.D.Ala. 1973); Borreca v. Fasi, 369 F.Supp. 906, 908-09 (D.Hawaii 1974). My ruling in this case deals only with the right of the press to publish certain information without fear of liability f......
-
Sullivan v. City of Augusta, No. CIV.04-032-B-W.
...409 F.Supp. at 896. (noting "any significant denigration of a First Amendment right constitutes irreparable harm"); Borreca v. Fasi, 369 F.Supp. 906, 911 (D.Haw.1974) (citing Quaker Action Group v. Hickel, 421 F.2d 1111 (D.C.Cir.1969)). Although Sullivan must demonstrate he has met his burd......
-
The media that citizens need.
...courts may be able to monitor the reasons for denial of access to press facilities or press conferences. See, e.g., Borreca v. Fasi, 369 F. Supp. 906, 911 (D. Haw. 1974) (giving a disliked reporter the right to attend press conferences on the same basis as other (211) Although some writers ......