BILL ANALYSIS
SB 1540
Page 1
Date of Hearing: July 3, 1996
ASSEMBLY COMMITTEE ON JUDICIARY
Bill Morrow, Chair
SB 1540 (Calderon) - As Amended: June 26, 1996
SENATE VOTE: Floor: 34-0
SUMMARY: Extends the "fair report privilege" to cover fair and
true communications to a public journal concerning official
proceedings. Currently the privilege only applies to a fair and
true report by a public journal concerning official proceedings.
Specifically, this bill:
1) Provides that a privileged publication or broadcast is one made
by a fair and true communication to a public journal of (1) a
judicial, (2) legislative, or (3) other public official
proceeding, or (4) of anything said in the course thereof, or
(5) of a verified charge or complaint made by any person to a
public official, upon which complaint a warrant has been
issued.
2) Provides that nothing in paragraph 1 above shall make
privileged any communication to a public journal that has been
found to violate State Bar Rule of Professional Conduct 5-120.
3) States the Legislature's intent, by this measure, to abrogate
the decision in Shahvar v. Superior Court (1994) 25 Cal.App.4th
653. This decision is discussed below.
FISCAL EFFECT: None
EXISTING LAW:
1) Civil Code Section 47, lists a number of types of
communications that are subject to an absolute privilege,
meaning they cannot form the basis of a defamation, or similar,
action. An "absolute" privilege bars suit regardless of
whether the communication was uttered with malice or bad faith.
Section 47's enumeration of privileges is, with the exception
of some of its detail, essentially a codification of common law
defamation privileges.
2) Section 47(b) sets forth what is commonly known as the
"litigation privilege," although it covers any communication
made " in any (1) legislative proceeding", (2)judicial
proceeding, (3) in any other official proceeding authorized by
law, or (4) in the initiation or course of any other proceeding
reviewable pursuant to the Code of Civil Procedure provision
for judicial review of administrative action.
3) Section 47(b) does contain four special, limited, exceptions to
its absolute privilege: 1) for malicious, non-material
allegations concerning non-parties to a divorce action in
unsworn affidavits or unverified pleadings in a divorce action;
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2) for communications made in the furtherance of intentional
destruction or alteration of physical evidence; 3) for
statements in a judicial proceeding knowingly concealing the
existence of an insurance policy; and 4) for a recorded lis
pendens.
4) Section 47(d) sets forth what is commonly known as the "fair
report privilege". This privilege protects a fair and true
report in a public journal, of (1) a judicial, (2) legislative,
or (3) other official proceeding, or (4) of anything said in
the course thereof, or (5) of a verified charge or complaint
made by any person to a public official upon which complaint a
warrant has been issued.
5) Rule 5-120 of the State Bar's Rules of Professional Conduct
prohibits attorneys from making extra judicial statements to the
public if the member knows or reasonably should know that it "will
have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter."
BACKGROUND:
The litigation privilege
The "litigation privilege" protects persons involved in a
proceeding from defamation suits arising from their communications
to the court, and to each other, if those communications related
to the proceeding. The privilege
applies to such communications even if they take place outside of
the proceeding. As discussed below, there are disputes in the
state Courts of Appeal over whether statements to nonparticipants
in the proceeding can be
privileged under 47(b).
In Briscoe v. LaHue (1983) 460 U.S. 325, 335, the United State
Supreme Court explained the public policy justification for the
litigation privilege:
Controversies sufficiently intense to erupt in litigation are not
easily capped by a judicial decree. The loser in one forum will
frequently seek another. . . . Absolute immunity is thus necessary
to assure that judges, advocates, and witnesses can perform their
respective functions without harassment or intimidation.
The California Supreme Court has concurred with these sentiments,
holding that Civil Code Section 47(b) "further promotes the
effectiveness of judicial proceedings by encouraging attorneys to
zealously protect their clients." Silberg v. Anderson (1990) 50
Cal.3d 205, 214.
Courts in California and elsewhere have held that these purposes
are served by protecting certain statements that take place
outside of court, as well as inside it. For example, the
California Court of Appeal has held that the policy in favor of
encouraging out-of-court settlement is promoted by protecting not
only pretrial, but pre-litigation, statements. Lerette v. Dean
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Witter (1976) 60 Cal.App.3d 573, 577 (privilege attaches to
attorney's pre-litigation demand letter to a bank); See also
Ascherman v. Nathanson (1972) 23 Cal.App.3d 861 (privilege applies
to pre-litigation, preliminary conversations between prospective
witness and attorney).
In Silberg, supra, at 212, the California Supreme Court stated
that Section 47(b) applies "even though the publication is made
outside of the courtroom and no function of the court or its
officers is involved." The Court held that the privilege applies
to any communication (1) made in judicial or quasi-judicial
proceedings, (2) by litigants or other participants authorized by
law, (3) to achieve the objects of the litigation, and (4) that
have some connection or logical relation to the action." Id. The
Silberg decision contains dicta stating that "republications to
nonparticipants in the action
are generally not privileged" such statements generally do not
meet requirements 3 and/or 4. As discussed below, this dicta has
caused confusion in the lower courts.
The "fair report privilege"
The "fair report privilege" protects the press from defamation
suits arising from reports of what took place in a proceeding, or
what was contained in documents related to the proceeding. As
discussed below, there are disputes in the state Courts of Appeal
over whether this privilege also protects persons making out-of
court communications to the press about what took place in a
proceeding, or what was contained in documents related to the
proceeding.
The United States Supreme Court has held that a fair and true
report of official court records is absolutely protected under the
First Amendment. Cox Broadcasting v. Cohn (1975) 420 U.S. 469.
The Ninth Circuit of the U.S. Court of Appeals, applying
California law, has interpreted the scope of California's fair
report privilege to encompass a
report of out-of-court statements made by a participant to
judicial proceedings, where the content of those statements was
consistent with the "gist and sting" of the statements made during
the actual proceedings. Dorsey v. National Enquirer (9th Cir.
1992) 973 F.2d 1431.
Other state and federal jurisdictions have applied the common law
"fair report" privilege to comments made by attorneys concerning
ongoing litigation that fairly and accurately reported on the
proceedings. For example, in Ford v. Levinson (1982) 454 N.Y.S.2d
846, the court upheld the dismissal of a defamation claim against
an attorney whose basis had been an article quoting the attorney's
description of the claims made by his client in a lawsuit. See
also McNally v. Yarnall (S.D.N.Y. 1991) 764 F.Supp.853.
The disputed scope of, and relationship between, these two
privileges
This section discusses the conflicting cases in the California
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Courts of Appeal as to whether the fair report privilege applies
to reports of proceeding made to the media, rather than by the
media.
In Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d
796, the 2nd District Court of Appeal held privileged the
transmittal of a copy of a federal complaint to a newspaper. The
court held that, since the pleadings in the federal court are
subject to the litigation privilege of 47(b) and the newspaper's
fair and true report of the pleadings is privileged under 47(d),
"it would defeat the purpose of Section 47 . . . to punish the
transmittal of the privileged pleadings to the press."
However, in Shahvar v. Superior Court (1994) 25 Cal.App.4th 653,
the 4th District Court of Appeal held that an attorney's
transmittal of a copy of a pleading to a newspaper was not
privileged. The court held that the litigation privilege of 47(b)
did not apply, in reliance on the dicta in Silberg about
communications to non-participants to the proceeding, and in
reliance on another Court of Appeal case, Susan A. v. County of
Sonoma 2 Cal.App.4th 88).
Susan A. held that the litigation privilege did not apply to
statements made to the media by a forensic psychologist concerning
an evaluation of the defendant in a criminal proceeding because
the psychologist never testified in court. The Shahvar decision
relies in particular on the statement in Susan A.
that the litigation privilege "does not apply where the statement
is made to persons in no way connected with the proceeding."
Having held that the litigation privilege did not apply because
the pleading was sent to a nonparticipant in the proceeding, the
Shahvar decision holds that the fair report privilege of Section
47(d) does not apply because: "By its own terms, this privilege
applies only to reports in public journals. A statement "to" a
public journal is not a statement "in" a pubic journal." The
court criticizes the Abraham decision for inventing a "bridge
privilege" between the litigation privilege and the fair report
privilege.
The state Supreme Court has not resolved the direct conflict in
the Courts of Appeal between the holdings of Shahvar and Abraham.
This bill is intended to resolve this conflict by clarifying the
circumstances under which persons who inform the press about what
has taken place in an official proceeding are protected by an
absolute privilege.
ARGUMENTS IN SUPPORT: The California Newspaper Publishers
Association (sponsor) argues that the press cannot report
effectively on courts if persons involved in the proceedings are
afraid even to fax them an official pleading, much less talk to
them about the case.
They argue that the bill would buttress existing privileges' three
pronged policy objective: to aid the effectiveness of judicial
proceedings, enhance the public's knowledge about the courts
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through vigorous press reporting and prevent satellite litigation
over statements made during court proceedings.
The State Bar of California, Committee on the Administration of
Justice, argues that there is no intellectually coherent
explanation for permitting a newspaper to publish a story based on
a lawsuit when a copy of the complaint is obtained from the court,
but not if the complaint is obtained from a party or counsel.
ARGUMENTS IN OPPOSITION: None
COMMENTS: This bill codifies a type of "bridge privilege" between
the litigation privilege and the fair report privilege. It
protects fair and true reports to the press of things that
occurred or were said in an official proceeding. These statements
are protected when originally uttered by the litigation privilege
and are protected when published by the press by the fair report
privilege. This bill creates the bridge between these two
privileges to protect a third party who communicates this already
privileged material to the press.
This language would abrogate Shahvar and clearly protect cases
involving transmission to the press of pleadings and other court
documents by attorneys and other persons connected to the
proceeding. The transmission would be a fair and true report of a
statement (the pleading) made in the course of an official
proceeding.
This bill should not undermine the efficacy of the Bar's efforts
to deter attorneys from trying their cases in the media, since it
specifically excludes from privileged communications those which
violate Rule 5-120.
Suggested Amendment
In order to effectuate the intent of the author that the bill only
protect fair and true communications of things that have occurred
in an official
proceeding rather than all communications of what occurred,
committee staff suggests the following:
Add the words "fair and true" prior to the word "communication" on
page 4, line 8.
REGISTERED SUPPORT / OPPOSITION:
Support Opposition
CA Newspaper Publishers Assoc. None on file
Analysis prepared by: Cliff Zall / ajud / (916) 445-4560