Rancho Publications v. Superior Court

• Decision Date: 08 January 1999
• Docket Number: No. G023316,G023316
• Citation: 68 Cal.App.4th 1538,81 Cal.Rptr.2d 274
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 288, 99 Daily Journal D.A.R. 307 RANCHO PUBLICATIONS, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Downey Community Hospital Foundation et al., Real Parties in Interest.

Page 274

81 Cal.Rptr.2d 274

68 Cal.App.4th 1538, 99 Cal. Daily Op. Serv. 288,

99 Daily Journal D.A.R. 307

RANCHO PUBLICATIONS, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent Downey Community Hospital Foundation et al., Real Parties in Interest.

No. G023316.

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

Jan. 8, 1999.

[68 Cal.App.4th 1540] Davis Wright Tremaine, Kelli L. Sager and Karen N. Frederiksen, Los Angeles, Boutwell, Behrendt & Ennor, Boutwell, Ennor, Fabricant & Fay, and Deborah Fabricant, Long Beach, for Petitioner.

No appearance for Respondent.

Manatt, Phelps & Phillips, Leonard D. Venger, Donald R. Brown, and Norman Y. Wong, Los Angeles, for Real Parties in Interest.

OPINION

CROSBY, Acting P.J.

The right to speak anonymously draws its strength from two separate constitutional wellsprings: the First Amendment's freedom of speech and the right of privacy in article I, section 1 of the California Constitution. The anonymous pamphleteer is one of the enduring images of the American revolutionary heritage.

Publius, Cato and Brutus find their modern-day counterparts in "Save Our Hospital," a group which paid to run numerous advertisements in a local newspaper criticizing a local community hospital. The hospital used a preexisting civil lawsuit to find out who authored them. The reason? It suspected the same people previously distributed other anonymous documents of an allegedly defamatory nature.

We draw upon a well-established body of California case law which allows nonparties to civil litigation (such as a newspaper) to assert the constitutionally-protected rights of an author to remain unknown. Applying a balancing test, we issue a writ because the speculative relationship between this anonymous speech and other statements which are alleged to be defamatory does not justify judicially compelled disclosure by a third party. Anonymity, once lost, cannot be regained; and that intrusion cannot be justified in the context of the underlying lawsuit.

I

Petitioner publishes a weekly newspaper, the Eagle, in Downey. That city has been rocked by a bitter dispute regarding publicly-owned Downey Community Hospital which, in a complex and controversial restructuring, became affiliated (through a for-profit holding entity) with a for-profit HMO and a for-profit health insurance provider. Charges of self-dealing, backroom deals, bribery, sexual misconduct, incompetence and mismanagement abounded.

The hospital and various affiliated persons and entities (collectively "the hospital") filed several defamation lawsuits. They alleged a local doctor, Vernon Waite, and an anonymous organization, Concerned Citizens of Downey, have engaged in a "vicious and concerted scheme to ruin [plaintiffs'] reputations by publishing false and malicious writings about them in the Downey community." The lawsuits named 1000 Doe defendants. The hospital invested heavily in discovery to ascertain the identity of these Does.

During the pendency of the defamation lawsuits, the Eagle began to run a series of paid advertorials ¹ from another group, Save Our Hospital. There were more than 20 advertorials, beginning in September 1996 and running for more than a year. Some of the advertorials were individually signed; others were not. Many asked questions such as, "Why would Management and most of the [Hospital] governing Board refuse to [state] they will not personally profit from the sale of the hospital?" Another criticized the hospital for subpoenaing "concerned residents who committed the terrible offense of signing a petition (and haven't the foggiest idea as to the identity of the writers of the anonymous letters)." Another attacked the " witch hunt" of deposing residents "with questions regarding the anonymous letter writers, Concerned Citizens and [Save Our Hospital]."

The hospital responded with a subpoena against the Eagle. The subpoena attached copies of the advertorials and demanded production of all documents pertaining to "advertisements or notices paid for by [s]upporters of Save Our Hospital" and all documents reflecting communications "to or from a member, supporter or representative of Save Our Hospital."

The Eagle moved to quash the subpoena and for a protective order based on the qualified privilege arising from the California constitutional right to privacy (Cal. Const., art. I, § 1) and the "absolute immunity" in California's media shield law (Evid.Code, § 1070; Cal. Const., art. I, § 2, subd. (b)). The court denied the motion, stating "[t]here is a very broad discovery right," and "[w]hen you take out an ad in the newspaper, that takes an advocacy position ... I don't know that you have a right of privacy." The court further held the shield law did not apply to the paid advertorials because "[t]he intent of this law was to protect the integrity of the news gathering process from the state." The court opined that any more expansive rights would have to be spelled out by a higher court, "so, I certainly invite you to take this over to the Fourth District and let those philosopher kings decide what the law is."

In March 1998, the Eagle was adjudicated in contempt, but the order was stayed. Because the court order directed production of allegedly private materials, there was no adequate remedy at law and we issued an alternative writ. (Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court (1996) 51 Cal.App.4th 233, 237, 58 Cal.Rptr.2d 791.)

II

While we ultimately grant the Eagle the relief it seeks, we decline to do so through California's media shield law because it does not necessarily extend to paid advertisements. The shield law, first enacted by statute in 1935, was incorporated into the Constitution in 1980 when the voters approved Proposition 5. (See discussion in Delaney v. Superior Court (1990) 50 Cal.3d 785, 794-796, 268 Cal.Rptr. 753, 789 P.2d 934.) ² It is intended to promote the free flow of information to the public by prohibiting courts from holding the media in contempt for refusing to disclose unpublished news sources or information received from such sources. Its "primary purpose" is to safeguard the media's "future ability to gather news." (Id. at p. 810, 268 Cal.Rptr. 753, 789 P.2d 934, italics added.)

The shield law is both expansive and narrow. On its face it provides an absolute immunity against contempt which cannot be overcome even "by a showing of need for unpublished information." (New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 461, 273 Cal.Rptr. 98, 796 P.2d 811 [newspaper refused to comply with a civil subpoena by car manufacturer for unpublished accident photographs].) It covers all unpublished information, whether confidential or nonconfidential, and all sources for such information, whether published or unpublished. (Delaney, supra, 50 Cal.3d at pp. 797-805, 268 Cal.Rptr. 753, 789 P.2d 934.)

Yet the shield law is riddled with holes. Most significantly, it only provides an immunity against contempt, rather than a more expansive privilege against testifying, as exists in other states. (In re Willon (1996) 47 Cal.App.4th 1080, 1091, 55 Cal.Rptr.2d 245; Alexander & Bush, Shield Laws on Trial: State Court Interpretation of the Journalist's Statutory Privilege (1997) 23 J. Legis. 215, 222-223.) News organizations still may be subject to other penalties, including monetary and issue-preclusion sanctions (where they are direct party litigants, such as in defamation lawsuits), and civil liability to the propounding party for "all damages which he may sustain." (New York Times Co., supra, 51 Cal.3d at p. 462, 273 Cal.Rptr. 98, 796 P.2d 811, citing Code Civ. Proc. § 1992.) And it yields to other conflicting rights in appropriate circumstances, including the due process rights of criminal defendants. (Delaney, supra, 50 Cal.3d at pp. 805-806, 268 Cal.Rptr. 753, 789 P.2d 934.) ³

The shield law extends to "any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. ..." (Cal. Const., art. I, § 2; Evid.Code, § 1070, italics added.) The Supreme Court itself has stressed the significance of this threshold factor: "We emphasize ... the importance of this requirement.... [T]he shield law provides no protection for information obtained by a journalist not directly engaged in 'gathering, receiving or processing' news." (Delaney, supra, 50 Cal.3d at p. 798, fn. 8, 268 Cal.Rptr. 753, 789 P.2d 934.) Delaneypointed out, for example, that off-duty reporters who witnessed a crime while going home from work could not claim the benefit of the shield law because they were not involved in newsgathering activities. (Ibid.)

The Eagle argues against using Delaney's reference to "news" in this footnote as a judicial addition of a news requirement into the shield law. Instead, the Eagle urges the use of the term "any" in the shield law means "without limit and no matter what kind." (Citing Delaney, supra, 50 Cal.3d at p. 798, 268 Cal.Rptr. 753, 789 P.2d 934.) So construed, the Eagle would have the shield law cover all paid advertisements without qualification.

We refuse to construe the shield law in such an absurd way. (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 566-567, 28 Cal.Rptr.2d 638, 869 P.2d 1163 [" 'the "plain meaning" rule does not prohibit a court from determining whether the literal meaning of a [constitutional provision] comports with its purpose ... and the letter will, if possible, be so read as to conform to the spirit' "].) In its single-minded emphasis on the meaning of "any," the Eagle has downplayed the shield law's equally important requirement that the unpublished information be prepared in the process of gathering "information for communication to the public. ..." (Cal. Const., art. I, § 2; Evid.Code, § 1070, italics added.) At a minimum the phrase "information for communication to the public" requires that the person or...