Werner v. Southern Cal. Associated Newspapers

• Citation: 216 P.2d 825,35 Cal.2d 121
• Court: United States State Supreme Court (California)
• Decision Date: 14 April 1950
• Parties: , 13 A.L.R.2d 252 WERNER v. SOUTHERN CALIFORNIA ASSOCIATED NEWSPAPERS. L. A. 21132.

Page 825

216 P.2d 825

35 Cal.2d 121, 13 A.L.R.2d 252

WERNER v. SOUTHERN CALIFORNIA ASSOCIATED NEWSPAPERS.

L. A. 21132.

Supreme Court of California, in Bank.

April 14, 1950.

Rehearing Denied May 11, 1950.

Morris Lavine, Los Angeles, for appellant.

O'Melveny & Myers, Louis W. Meyers, Sidney H. Wall and Pierce Works, Los Angeles, for respondent.

Price, MacDonald & Knox, Harry L. Price, Oakland, Calkins, Hall, Linforth & Conard, Reginald H. Linforth, Cooper, White & Cooper, George A. Helmer, San Francisco, John Hamlyn, Sacramento, Cosgrove, Clayton, Cramer & Diether, T. B. Cosgrove, Binford & Binford, Howard Binford, Lawler, Felix & Hall, John Hall, Flint & MacKay, H. S. MacKay, Jr., Edward L. Compton, Los Angeles, McEnerney & Jacobs, Garret McEnerney II, San Franciso, and Stephen W. Downey, Sacramento, amici curiae on behalf of respondent.

TRAYNOR, Justice.

Plaintiff appeals from a judgment of dismissal of his action for libel, entered upon his failure to amend his complaint after a demurrer thereto had been sustained. Plaintiff alleged in his complaint that defendant published in its newspapers false charges that he had been convicted of a felony and sentenced to prison therefor, that the falsity of these charges was known or should have been known to defendant, and that defendant published the charges with intent to injure, disgrace, and defame him. Defendant's demurrer was sustained on the ground that plaintiff did not allege that he had complied with the provisions of Civil Code section 48a ¹ or that he suffered special damage as a result of the publication. Plaintiff contends that section 48a is unconstitutional.

Article I, section 9 of the California Constitution provides: 'Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. * * *' Plaintiff contends that under this section a person who defames another must be fully responsible for any damage caused thereby, and that the substitution of a retraction for all but special damages is an unconstitutional attempt to relieve newspapers and radio stations from full responsibility for the abuse of the right of free speech. Defendant contends that the abuse clause of section 9 does not confer on a person defamed a right to the remedy of damages, but merely specifies that the constitutional right of free speech does not automatically carry with it freedom from responsibility for such abuses as were recognized by the common law or defined by the Legislature. We agree with defendant's contention. To hold otherwise would result in freezing the law of defamation as it was when the constitutional provision was originally adopted in 1849.

The quoted provision is an almost exact duplicate of Article VII, section 8 of the New York Constitution of 1821. Substantially the same language is found in the constitutions of 43 states. Chafee, Free Speech in the United States, p. 5, n. 2. The remaining states have a shorter guaranty similar to that in the United States Constitution, in which the 'abuse' exception has been necessarily implied. See, Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470. In none of these jurisdictions has the provision been construed as freezing the law of defamation as of the date of its adoption. Indeed, its primary purpose is to guarantee that freedom of speech shall not be restrained except to prevent abuse.

Since 1872 the Legislature has consistently acted on the principle that it is free to change the law of defamation. Many of the amendments have limited or abolished remedies theretofore available to persons defamed. Thus before 1945, the year of enactment of section 48a as presently worded, the Legislature had extended the absolute privilege with respect to statements in judicial, legislative, and other official proceedings, and the qualified privilege with respect to reports of such proceedings, Code Amendments 1873-1874, p 184; it had extended the qualified privileges of section 47 of the Civil Code to fair and true reports of public meetings, Stats.1895,[35 Cal.2d 125] p. 168; it had enacted the original version of section 48a limiting the liability of newspapers, when the publication was made without malice through misinformation and mistake, and a retraction was demanded and published. See City and County of San Francisco v. Industrial Acc.Comm., 183 Cal. 273, 279, 191 P. 26. As early as 1886 this court recognized the power of the Legislature to extend absolute privileges and thus abolish all remedies for defamation in certain situations. Hollis v. Meux, 69 Cal. 625, 629, 11 P. 248, 58 Am.Rep. 574. Moreover, the courts have invoked the applicable code sections as amended to determine the rights of the parties without in any way intimating that the Legislature was powerless to reduce the remedies available at common law for defamation. Harris v. Zanone, 93 Cal. 59, 70, 28 P. 845; Ball v. Rawles, 93 Cal. 222, 236, 28 P. 937, 27 Am.St.Rep. 174; Gosewisch v. Doran, 161 Cal. 511, 513-514, 119 P. 656, Ann.Cas.1913D, 442; Brewer v. Second Baptist Church, 32 Cal.2d 791, 799, 197 P.2d 713; Behrendt v. Times-Mirror Co., 30 Cal.App.2d 77, 88, 85 P.2d 949; Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 349, 353, 121 P.2d 761. Given the view that the Legislature has taken of its own powers with regard to the law of defamation and the courts' acceptance of that view, it is clear that the abuse clause of the Constitution was intended, not to guaranty a remedy to those injured, but only to make clear that the right of free speech does not guaranty immunity from liability to those who abuse it. See, Los Angeles County v. Southern Cal.Tel. Co., 32 Cal.2d 378, 392, 196 P.2d 773. Accordingly, section 48a of the Civil Code is not rendered invalid by section 9 of Article I of the California Constitution.

It is also clear that section 48a is not invalid under the due process clause of the United States Constitution. 'Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals. See, Delaney v. Lowery, 25 Cal.2d 561, 568, 154 P.2d 674. It may create new rights or provide that rights which have previously existed shall no longer arise, and it has full power to regulate and circumscribe the methods and means of enjoying those rights, so long as there is no interference with constitutional guaranties.' Modern Barber Colleges v. California Emp.Stab.Comm., 31 Cal.2d 720, 726, 192 P.2d 916, 920. '* * * the Constitution does not forbid creation of new rights or the abolition of old ones recognized by the common law to attain a permissible legislative object.' Silver v. Silber, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221, 65 A.L.R. 939; Langdon v. Sayre, 74 Cal.App.2d 41, 168 P.2d 57.

There are at least two bases on which the Legislature could reasonably conclude that the retraction provisions of section 48a provide a reasonable substitute for general damages in actions for defamation against newspapers and radio stations, namely, the danger of excessive recoveries of general damages in libel actions and the public interest in the free dissemination of news.

General damages are allowed for 'loss of reputation, shame, mortification and hurt feelings', Civ.Code § 48a, but the extent of such injuries is difficult to determine. At common law it was conclusively presumed that general damages resulted from the publication of a libel. 'The practical result is that the jury may award not only nominal damages, but substantial sums in compensation of the supposed harm to the plaintiff's reputation, without any proof that it has in fact occurred.' Prosser, Torts, § 92, p. 797. The Legislature could reasonably conclude that recovery of damages without proof of injury constitutes an evil.

It is settled that the Legislature may attack the evils of unfounded litigation by abolishing causes of action altogether. Thus statutes abolishing civil actions for alienation of affection, criminal conversation, seduction and breach of promise to marry have generally been upheld. Langdon v. Sayre, 74 Cal.App.2d 41, 168 P.2d 57; see, annotation, 158 A.L.R. 617, and cases cited. The purpose of such legislation has been stated by the New York Legislature as follows: 'The remedies heretofore provided by law for the enforcement of actions based upon alleged alienation of affections, criminal conversation, seduction and breach of contract to marry having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by the abolition of such remedies.' Civil Practice Act, § 61-a et seq. Similarly it has been held that the dangers of unfounded actions based on negligence justify legislative abolition of certain classes of such actions. 'We are not unaware of the increasing frequency of litigation in which passengers carried gratuitously in automobiles, often casual guests or licensees, have sought the recovery of large sums for injuries alleged to have been due to negligent operation. * * * Whether there there has been a serious increase in the evils of vexatious litigation in this class of cases, where the carriage is by automobile, is for legislative determination, and, if found, may well be the basis of legislative action further restricting the liability. Its wisdom is not the concern of courts.' Silver v. Silver, ...