Sipple v. Des Moines Register & Tribune Co.

• Decision Date: 27 June 1978
• Citation: 82 Cal.App.3d 143,147 Cal.Rptr. 59
• Court: California Court of Appeals Court of Appeals
• Parties: , 4 Media L. Rep. 1041 Oliver W. SIPPLE, Plaintiff and Appellant, v. DES MOINES REGISTER AND TRIBUNE COMPANY et al., Defendants and Respondents. Civ. 40750.

Page 59

147 Cal.Rptr. 59

82 Cal.App.3d 143, 4 Media L. Rep. 1041

Oliver W. SIPPLE, Plaintiff and Appellant, v. DES MOINES REGISTER AND TRIBUNE COMPANY et al., Defendants and Respondents.

Civ. 40750.

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

June 27, 1978.

John Eshleman Wahl, San Francisco, for plaintiff and appellant.

Bruce M. Casey, Jr., Frank S. Bayley, III, Ronald L. Murov, Chickering & Gregory, San Francisco, for defendants and respondents Des Moines Register and Tribune Company, David Kruidenier, The Express News Corporation, Charles O. Kilpatrick, Indianapolis Newspapers, Inc., Eugene S. Pulliam, The New York Post, Inc., Dorothy Schiff, Field Enterprises, Inc., Marshall Field, Minneapolis Star and Tribune Company, and Robert W. Smith.

Thomas W. Reavley, Bronson, Bronson & McKinnon, San Francisco, Yegge, Hall & Evans, Denver, Colo., for defendants and respondents The Denver Post, Inc. and Charles R. Buxton.

JENKINS, ^* Associate Justice.

Orders to quash service of process against out-of-state newspapers, who claim a special preference under the First Amendment, are appealed. Analogizing to Gertrude Stein (a rose is a rose is a rose), and agreeing with Chief Justice Burger, concurring in First National Bank of Boston v. Bellotti (1978) --- U.S. ----, 98 S.Ct. 1407, 1426-1429, 55 L.Ed.2d 707, that free speech is free speech, we conclude that no such special privilege for the press exists in California in the context here asserted. However, using usual rules applicable equally to all, we find insufficient contacts for in personam jurisdiction, and affirm the court below.

FACTS

On September 22, 1975, an attempt was made on the life of then President Gerald R. Ford by Sarah Jane Moore, since apprehended, convicted, and now serving her sentence. That attempt was frustrated, at least in part, by Oliver Sipple (appellant), identified that date by national media as a disabled ex-Marine, who became somewhat of an instant "hero."

Two days later, Herb Caen, a nationally known columnist, published in his column in the San Francisco Chronicle an account which implied that Sipple was a homosexual. On September 25, 1975, the Los Angeles Times and respondents, various out-of-state newspapers who purchased the accounts from the Times news service, published articles more explicitly stating appellant was of that sexual preference. Immediately thereafter, Sipple together with his lawyer and minister, called a press conference and alleged a breakdown of family relationships as a result of publicity. That day, a lawsuit for $5,000,000 was filed against respondents and the in-California newspapers, for invasion of privacy for publishing the fact of Sipple's homosexuality, a fact not denied. ¹

The jurisdictional facts are clear and uncontroverted. None of the corporate defendants is a California corporation, is qualified to do business or publishes a paper here. None solicits subscriptions in this state. Each has some circulation, none more than 0.3% in California. None derives more than 3% of its advertising revenues here.

As for the individual publisher defendants, none had any contacts with California nor owned property here except Dorothy Shiff of the New York Post, who has land in Fresno. None had prior knowledge of the questioned article.

This jurisdictional posture gives rise to a constitutional issue of first impression in California:

(a) Do newspapers enjoy a special preference under the First Amendment in deciding in personam jurisdiction questions dealing with publication of allegedly tortious material?

If the answer is "no," then three questions arise:

(b) Is there statutory authority for such jurisdiction?

(c) Were the contacts here, under usual rules, sufficient for jurisdiction?

(d) Does balancing of equities (one small plaintiff versus several large newspaper defendants) require imposition of the long-arm jurisdiction statute?

DISCUSSION

I.

Respondents declaim vigorously that "First Amendment considerations, and the strong public policy to protect freedom of speech and the press in California, must be considered in determining whether jurisdiction should be asserted . . ." Acknowledging no appellate decision in this state has come to grips with the issue, they rely strongly on New York Times Company v. Connor (5th Cir. 1966) 365 F.2d 567 and its progeny. There, Police Commissioner Eugene "Bull" Connor of Birmingham, of Alabama racial tension fame in the 1960's, was denied recovery for an allegedly libelous newspaper article, the court commenting (at p. 572): "First Amendment considerations surrounding the law of libel require a greater showing of contact to satisfy the due process clause than is necessary in asserting jurisdiction over other types of tortious activity."

Respondents, using a favorite phrase of the media when any restriction on them is intimated, emphasize the "chilling effect on exercise of freedom of the press" if that principle is not extended to actions for invasion of privacy. This is an area which the courts have carefully skirted, but into which legal scholars love to leap. Some (Nimmer, The Right to Speak (1968) 56 Cal.L.Rev. 935) analyze the concept and cases, by suggesting a "definitional" rather than "ad hoc" balancing of competing interests (e. g., right to know versus national security). Thus in a privacy case, one starts with Dean Prosser's categorization of "public disclosure of embarrassing facts about the plaintiff" (Prosser, Law of Torts (4th ed. 1971) § 117, pp. 802-818) and finds that if a statement is not false, reputation-injuring or defamatory, inquiry must be made as to whether the interest in privacy is outweighed by newsworthiness.

Other scholars take a different approach, suggesting, as respondents seem to here, that a special privilege or preference is given to the media by attaching a broader meaning to "freedom of the press" than "freedom of speech." However, an exposition by several authors from Potter Stewart to William Douglas in 26 Hastings L.J. (1975) discussing that position, is introduced with the acknowledgment (at p. 640) that the "foremost historian of the First Amendment (L. Levy, Legacy of Suppression Freedom of Speech and Press in Early American History (1963)) tells us that prior to and contemporaneous with its adoption '(m)ost writers, including Addison, Cato, and Alexander, who employed the term "freedom of speech" with great frequency used it synonymously with freedom of the press.' " And the Supreme Court in a similar context of press freedom stated that the proposition that the press may claim greater rights than the public generally "finds no support in the words of the Constitution or in any decision of this Court." (See Pell v. Procunier (1974) 417 U.S. 817, 834-835, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495; 26 Hastings L.J. 642.)

Most recently, the subject is discussed (noting it is only indirectly implicated in the case) by Mr. Chief Justice Burger, in First National Bank of Boston v. Bellotti, supra, 98 S.Ct. at pp. 1426-1429. Talking about "those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the 'institutional press' " (at p. 1427), Burger reviews lack of support for that concept by framers of the Constitution, and finds it would be reminiscent of the "abhorred licensing system of Tudor and Stuart England a system the First Amendment was intended to ban from this country" (at p. 1429). He concludes with a quotation from Justice Frankfurter, concurring in Pennekamp v. Florida (1946) 328 U.S. 331, 364, 66 S.Ct. 1029, 90 L.Ed. 1295; " '(T)he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. " . . . the liberty of the press is no greater and no less . . . " than the liberty of every citizen of the Republic' " (at p. 1429). In short, says Burger, "the First Amendment does not 'belong' to any definable category of persons or entities: it belongs to all who exercise its freedoms" (p. 1429).

The conclusion of the Chief Justice that the First Amendment fails to give special protection to the "institutional press" under a freedom of the press theory parallels the finding that it also fails to give special protection from jurisdiction to defendants whose tortious acts performed out of state arise from exercise of rights arguably protected by the First Amendment. Though the Connor decision, relied on by respondents, appears to give such protection, that decision "has been widely criticized and disregarded (citations), and appears now to have been discarded by the Fifth Circuit itself (citations)." (David v. National Lampoon, Inc. (D.S.C.1977) 432 F.Supp. 1097, 1100; accord Anselmi v. Denver Post, Inc. (10th Cir. 1977) 552 F.2d 316, 324.)

Fourteenth Amendment encapsulation of First Amendment rights into California adds no dimension to respondents' posture. A free press is essential and basic to our system of government, our way of life. But if the press seeks to encase itself in special armor, it strongly invites special weapons or restraints to breach its links. This is a result inimical to the very idea of a "free" press, not supported by our Constitution, statutes, case law or our traditional concepts of American freedoms, and not followed by this court.

II.

Treating the newspapers here as they are entitled to be treated equal to all others in their First Amendment rights the usual inquiries must be made. First, is there statutory authority to assert jurisdiction over respondents in invasion of privacy cases? That has been answered affirmatively by legislative enactment of Code of Civil Procedure, section 410.10: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States."

One of the recognized bases for jurisdiction in California arises when the defendant...