Leeb v. Delong

• Decision Date: 29 January 1988
• Docket Number: No. G002587,G002587
• Citation: 243 Cal.Rptr. 494,198 Cal.App.3d 47
• Court: California Court of Appeals Court of Appeals
• Parties: , 44 Ed. Law Rep. 444 David LEEB et al., Plaintiffs and Appellants, v. James DeLONG et al., Defendants and Respondents.

Page 494

243 Cal.Rptr. 494

198 Cal.App.3d 47, 44 Ed. Law Rep. 444

David LEEB et al., Plaintiffs and Appellants, v. James DeLONG et al., Defendants and Respondents.

No. G002587.

Court of Appeal, Fourth District, Division 3, California.

Jan. 29, 1988.

Paul L. Hoffman, Gary Williams, Los Angeles, and Susan Borges, for plaintiffs and appellants.

Ronald D. Wenkart, James P. Aynes, and Bobbie F. Albanese, Cerritos, for defendants and respondents.

Kronick, Moskovitz, Tiedemann & Girard and Robert A. Rundstrom, Sacramento, as amici curiae on behalf of defendants and respondents.

OPINION

CROSBY, Acting Presiding Justice.

May a school district censor material reasonably believed to contain an actionable defamation from an official campus newspaper? Yes.

I

David Leeb was the student editor of the Rancho Alamitos High School Newspaper, "La Voz del Vaquero." Rancho is a public high school in the Garden Grove Unified School District, and the newspaper is faculty supervised.

On March 29, 1984, Leeb submitted the proposed April 1 edition to James DeLong, Rancho's principal, for approval. The newspaper traditionally publishes an April Fool's Day spoof. This one, for example, reported that rock star Michael Jackson was planning a concert at the school, the Los Angeles Raiders professional football team had scheduled a game with the Rancho squad, and spring break had been cancelled for lack of interest. On the second page, a small disclaimer stated, "All the stories and announcements in this issue ... are fabrications of the mind." (Read literally, the disclaimer itself was, of course, a "fabrication[ ] of the mind.")

On the third page an article appeared under the headline "Nude Photos: Girls of Rancho." Prepared with the advice and consent of the journalism instructor, it was nonetheless the catalyst for the present controversy. According to the article, the July issue of Playboy magazine would carry nude photographs of distaff Rancho students and those interested in posing should sign up at the school darkroom. The photos would be taken on April 23 in 10- to 15- minute sessions, followed by short interviews. The article was accompanied by a photograph of five fully clothed female students standing in line with their school books, purportedly with applications in hand. DeLong recognized each of them.

Between April 2 and 4, DeLong spoke with the five coeds and obtained written statements from them. He concluded the young ladies did not give a totally informed consent to the use of the photograph. Several did not mind, however, and later executed declarations in support of Leeb.

DeLong also spoke with the father of one of the depicted students. According to the principal, "he expressed his anger, shock and outrage to me and stated that the picture invaded his daughter's privacy and was damaging to his daughter's reputation. He felt that the article and the photograph might subject his daughter to ridicule." This parent submitted a declaration on behalf of DeLong in the trial court in which he repeated his objections to the article and picture and alluded to potential legal action if it were to be published.

DeLong himself formed the opinion that "the article and the photograph taken together are damaging to the reputation of each of the girls in the photograph in that [they] attempt[ ] to portray these high school girls as waiting in line to have their photographs taken in the nude." He was also of the view that the reputation of the school and the school district would be injured by publication of the material. DeLong noted that the edition was not meant to be taken seriously, but found "the disclaimer was so inconspicuous and difficult to see that I felt many readers may believe the article to be a true factual statement." On April 2, he prohibited distribution of the newspaper. It was apparently too late and impractical to merely delete the offending article. He also advised Leeb that he could appeal the decision to the associate superintendent, the superintendent, and then to the governing board. Leeb sought immediate review by the associate superintendent and the superintendent; both supported DeLong.

The district's regulations do not literally provide for review by the governing board, or any review at all for that matter (see fn. 12, infra ); but the evidence before the trial court was that the board would have considered the question if it had been brought to its attention. Leeb, who was a Rancho ex-officio student representative on the board, never raised it at a meeting, although he had every opportunity to do so at three sessions held after the superintendent's rejection of his appeal. Also, although Leeb's administrative appeals failed, he was permitted to publish an article on April 27 criticizing the superintendent's refusal to overturn DeLong's ban of the April 1 edition.

Claiming section 48907 of the Education Code and the district's administrative regulation adopted pursuant to that section--both of which provide for prior restraints with respect to official student publications in certain limited situations--violate the free press provision of the California Constitution, article I, section 2, Leeb unsuccessfully sought a temporary restraining order and a preliminary injunction. The lawsuit was terminated in favor of the school district on cross-motions for summary judgment, and this appeal followed.

II

Whether this particular edition of the newspaper should be published is, as a matter of fact, moot; but the constitutional issue raised is of continuing public interest and likely to recur in circumstances where, as here, there is insufficient time to afford full appellate review. ¹ Thus, it is appropriate to resolve the matter, notwithstanding the passage into history of April 1, 1984. (John A. v. San Bernardino City Unified School Dist. (1982) 33 Cal.3d 301, 307, 187 Cal.Rptr. 472, 654 P.2d 242; Gordon J. v. Santa Ana Unified School Dist. (1984) 162 Cal.App.3d 530, 533, 208 Cal.Rptr. 657.)

Private publishers are responsible for their publications and ordinarily have unfettered control over the contents, i.e., the absolute power of censorship. (Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730; cf. Pines v. Tomson, supra, 160 Cal.App.3d 370, 206 Cal.Rptr. 866.) An editor's power is derivative of, and entirely subordinate to, that of the publisher. ²

The other side of the censorship coin is that aspiring authors and advertisers have no right to insist on the publication of their works and notices. The United States Supreme Court has stated the general rule rather succinctly: "[T]he constitutional right of free speech has never been thought to embrace a right to require a journalist or any other citizen to listen to a person's views, let alone a right to require a publisher to publish those views in his newspaper...." (Pell v. Procunier (1974) 417 U.S. 817, 821-822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495; Avins v. Rutgers, State University of New Jersey (3d Cir.1967) 385 F.2d 151, cert. denied (1968) 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982.) Even persons willing to pay for the space have no constitutional right of uncensored access to the pages of a publication. (Associates & Aldrich Company v. Times Mirror Company (9th Cir.1971) 440 F.2d 133; Chicago Joint Bd., Amal. Cloth. Wkrs. v. Chicago Tribune Co. (7th Cir.1970) 435 F.2d 470, cert. denied (1971) 402 U.S. 973, 91 S.Ct. 1662, 29 L.Ed.2d 138; cf. Pines v. Tomson, supra, 160 Cal.App.3d 370, 206 Cal.Rptr. 866.) One solid justification for this is the following: The publisher may be held responsible in a defamation action for all the contents of the publication, including paid advertisements. (See, e.g., New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.)

With these observations in mind, we turn to the crux of the present matter: Is a statute which accords broad free press rights to public high school students nonetheless repugnant to the Constitution of California because it also allows school officials a very limited right to censor official high school publications? Most of the cases Leeb cites condemning prior restraints on campus are beside the point. They are access and distribution cases in the main, generally involving so-called underground newspapers, not official organs of the school. (Papish v. University of Missouri (1973) 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618; Bright v. Los Angeles Unified Sch. Dist. (1976) 18 Cal.3d 450, 134 Cal.Rptr. 639, 556 P.2d 1090; Nitzberg v. Parks (4th Cir.1975) 525 F.2d 378; Shanley v. Northeast Ind. Sch. Dist., Bexar County, Tex. (5th Cir.1972) 462 F.2d 960; Fujishima v. Board of Education (7th Cir.1972) 460 F.2d 1355; and Eisner v. Stamford Board of Education (2d Cir.1971) 440 F.2d 803.) Similarly, Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 concerned the wearing of black armbands as a political protest, and both Baughman v. Freienmuth (4th Cir.1973) 478 F.2d 1345 and Riseman v. School Committee of City of Quincy (1st Cir.1971) 439 F.2d 148 dealt with the distribution of privately produced pamphlets on high school campuses. ³

In making his state constitutional attack, it is somewhat ironic that Leeb so heavily relied on federal authority. A recent decision of the United States Supreme Court on virtually identical facts has specifically rejected his contentions under the federal Constitution. In Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 that court held in a 5-3 decision that "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.... may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional...