Brown v. Kelly Broadcasting Co.

• Decision Date: 27 April 1989
• Docket Number: No. S005126,S005126
• Citation: 48 Cal.3d 711,257 Cal.Rptr. 708,771 P.2d 406
• Court: California Supreme Court
• Parties: , 771 P.2d 406, 57 USLW 2707, 16 Media L. Rep. 1625 Shirley BROWN, Plaintiff and Appellant, v. KELLY BROADCASTING COMPANY et al., Defendants and Respondents.

Page 708

257 Cal.Rptr. 708

48 Cal.3d 711, 771 P.2d 406, 57 USLW 2707, 16 Media L. Rep. 1625

Shirley BROWN, Plaintiff and Appellant, v.KELLY BROADCASTING COMPANY et al., Defendants and Respondents.

No. S005126.

Supreme Court of California In Bank.

April 27, 1989.

Brenton A. Bleier and Kitt N. Berman for plaintiff and appellant.

Charles O. Morgan, Jr., and Paul Kleven as amici curiae on behalf of plaintiff and appellant.

L. Thomas Wagner, Anthony D. Lauria, Sara A. Clark and Weintraub, Genshlea, Hardy, Erich & Brown for defendants and respondents.

Gibson, Dunn & Crutcher, Robert S. Warren, Rex S. Heinke, Kelli L. Sager, Gary B. Pruitt, William A. Niese, Glen A. Smith, Harold W. Fuson, Jr., Donald L. Zachary, Kaye, Scholer, Fierman, Hays & Handler, Pierce O'Donnell, Cruz Reynoso, Clara A. Zazi Pope, Donovan, Leisure, Newton & Irvine, Stephen G. Contopulos, Pillsbury, Madison & Sutro, Jerome C. Dougherty, Bernard Zimmerman, Celeste Phillips, Cooper, White & Cooper, Neil L. Shapiro, Karl Olson, Robert D. Sack, Howard B. Soloway, Rogers & Wells, Richard N. Winfield, Diana Boenig Cavanaugh, Thomas P. Newell, Cornell Chulay, George Freeman, Alice Neff Lucan, Jean E. Zoeller, Sabin, Bermant & Gould, Ralph P. Huber, Jerry Birenz, Margaret C. Crosby, Alan L. Schlosser, Edward M. Chen, Matthew A. Coles, Carol Sobel, Brian S. Haughton and Ellman, Burke & Cassidy as amici curiae on behalf of defendants and respondents.

EAGLESON, Justice.

The sole issue in this case is whether Civil Code section 47, subdivision 3, affords a broad privilege, sometimes referred to as a "public-interest privilege," to the news communications industry (news media) to make false statements regarding a private individual.¹

Section 47(3) provides a privilege to communications made without malice on occasions in which the speaker and the recipient of the communication share a common interest.Defendants(a television station and its reporter) and several amici curiae argue that when the news media publish and broadcast matters of public interest they have a common interest with their audiences and that the publications and broadcasts should be privileged under section 47(3).Under that privilege, the plaintiff in a defamation action would be required to prove malice by the news media defendant to recover compensatory damages.

As we will explain, there is no such privilege for the news media under section 47(3).We hold that a publication or broadcast by a member of the news media to the general public regarding a private person is not privileged under section 47(3) regardless of whether the communication pertains to a matter of public interest.Thus, a private-person plaintiff is not required by section 47(3) to prove malice to recover compensatory damages.

FACTS

DefendantKelly Broadcasting Company(Kelly) owns and operates KCRA-TV, a television station broadcasting on Channel 3 in Sacramento.DefendantBrad Willis(Willis) was employed by Kelly as a reporter and appeared on Channel 3 programs.Willis narrated two stories in May 1984 concerning plaintiff on "Call 3 for Action"(Call 3), a consumer affairs segment of KCRA's daily news show.The stories were about two homeowners who had received home improvement loans made by the federal government and administered by the Sacramento Housing and Redevelopment Agency(SHRA).One of the homeowners, Lawson, had entered into a home improvement contract with plaintiff Brown, a licensed contractor.

In the first broadcast, Willis claimed that Lawson was the victim of a failure of the SHRA to correct mistakes made by plaintiff in remodeling Lawson's home.Willis alleged that Lawson had suffered through "a series of warped doors, and is still left with peeling paint, cracking plaster, blistered wallpaper, shoddy work, inside and out."The story included pictures of various problems including bubbling and peeling wallcovering, peeling paint, cracked plaster, and faulty doors.Willis asserted that Call 3 had attempted to call plaintiff to discuss the remodeling problems but that she had not returned the calls.He also said that plaintiff had returned $225 to Lawson and had been released by SHRA from further responsibility for the remodeling.

In the second broadcast, another contractor who had been criticized in the first story defended his remodeling work.Willis claimed in the second broadcast that plaintiff had been given the same opportunity to defend herself but had refused to do so.

After serving a written demand for a retraction on Kelly, which it rejected, plaintiff filed suit against Kelly and Willis alleging slander per se, negligence, and malice.Defendants responded with a motion for summary judgment.In opposition, plaintiff submitted a declaration stating that KCRA had not attempted to contact her, that the allegations of substandard work were false, that much of it was done by other contractors, and that the Contractor's State License Board had told KCRA before the broadcasts that the board would not investigate Lawson's complaints against plaintiff because there was no factual support for them.

The trial court sustained defendants' evidentiary objections to portions of plaintiff's opposition and granted defendants' motion for summary judgment on the grounds that the broadcasts were conditionally privileged under section 47(3) and that plaintiff had failed to raise a triable issue of material fact as to whether the privilege was overcome by defendants' malice.

The Court of Appeal reversed the judgment.The court agreed with the trial court that section 47(3) afforded a conditional privilege to the broadcasts, thus requiring plaintiff to prove malice, but found sufficient evidence to raise a triable issue of material fact as to whether defendants had acted with malice.

We affirm the Court of Appeal's judgment, but we do so not because there is a triable issue as to malice but because the broadcasts are not subject to a privilege under section 47(3).

DISCUSSION

The broad public-interest privilege claimed under section 47(3) is not constitutionally mandated or appropriate.

In recent years, the common and statutory law of defamation has been supplanted in many respects by decisions of the United States Supreme Court construing the federal Constitution.Thus, although the question before us can be answered by statutory construction, it is best understood in light of the high court's decisions.Defendants do not contend those decisions mandate a privilege under section 47(3) but argue that they provide policy support for a statutory public-interest privilege for the news media under section 47(3).We disagree.The United States Supreme Court has construed the federal Constitution as imposing certain limitations on plaintiffs seeking to recover for defamation.The high court, however, has expressly rejected the privilege sought by defendants in this case.

For approximately 175 years after the First Amendment to the federal Constitution was ratified, libelous statements were afforded no constitutional protection.²The law of defamation was almost exclusively the business of state courts and legislatures.(Eldredge, The Law of Defamation(1978)§ 50, pp. 252-254(hereafter Eldredge).)The court did not squarely hold until 1931 that the First Amendment applies to the states by reason of the Fourteenth Amendment.(Stromberg v. California(1931)283 U.S. 359, 368-369, 51 S.Ct. 532, 535, 75 L.Ed. 1117.)As recently as 1957, the court reiterated that, "[T]he unconditional phrasing of the First Amendment was not intended to protect every utterance.This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech."(Roth v. United States(1957)354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498citingBeauharnais v. Illinois(1952)343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919.)

Only seven years later, however, the court found for the first time that libel is protected by the federal Constitution under certain circumstances.In New York Times v. Sullivan(1964)376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the court held that "The constitutional guarantees [of freedom of speech and the press] require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves 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. 725-726, italics added.)³Although the New York Times restriction applied only to public officials, by finding constitutional protection for defamation, the court"effected a profound change in the hitherto settled law of defamation and overruled the prior common law of practically every state."(Eldredge,supra, § 51, p. 255.)

Shortly after New York Times, supra, 376 U.S. 254, 84 S.Ct. 710, the court further restricted the common law of defamation by holding that "public figures"--like public officials--must also prove malice under the New York Times standard to recover for defamatory criticism.(Curtis Publishing Co. v. Butts(1967)388 U.S. 130, 162-165, 87 S.Ct. 1975, 1995-1996, 18 L.Ed.2d 1094(conc. opn. of Warren, C.J.).)⁴

The New York Times privilege was taken one step further in Rosenbloom v. Metromedia, (1971)403 U.S. 29, 52, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296, in which a plurality of the court concluded the malice standard should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest.That is essentially the same conclusion defendants ask us to reach in this case.

Rosenbloom, supra, 403 U.S. 29, 91 S.Ct. 1811, however, was short lived.In Gertz v. Robert Welch, Inc.(1974)418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, a majority of the court soundly rejected the "general...