Brown v. Kelly Broadcasting Co.

Opinion

The sole issue in this case is whether Civil Code section 47, subdivision 3, affords a broad privilege, sometimes referred to as a “public-interest privilege,” to the news communications industry (news media) to make false statements regarding a private individual. 1

Section 47(3) provides a privilege to communications made without malice on occasions in which the speaker and the recipient of the communication share a common interest. Defendants (a television station and its reporter) and several amici curiae argue that when the news media publish and broadcast matters of public interest they have a common interest with their audiences and that the publications and broadcasts should be privileged under section 47(3). Under that privilege, the plaintiff in a defamation action would be required to prove malice by the news media defendant to recover compensatory damages.

As we will explain, there is no such privilege for the news media under section 47(3). We hold that a publication or broadcast by a member of the news media to the general public regarding a private person is not privileged under section 47(3) regardless of whether the communication pertains to a matter of public interest. Thus, a private-person plaintiff is not required by section 47(3) to prove malice to recover compensatory damages.

Facts

Defendant Kelly Broadcasting Company (Kelly) owns and operates KCRA-TV, a television station broadcasting on Channel 3 in Sacramento. Defendant Brad Willis (Willis) was employed by Kelly as a reporter and appeared on Channel 3 programs. Willis narrated two stories in May 1984 concerning plaintiff on “Call 3 for Action” (Call 3), a consumer affairs segment of KCRA’s daily news show. The stories were about two homeowners who had received home improvement loans made by the federal government and administered by the Sacramento Housing and Redevelopment Agency (SHRA). One of the homeowners, Lawson, had entered into a home improvement contract with plaintiff Brown, a licensed contractor.

*720 In the first broadcast, Willis claimed that Lawson was the victim of a failure of the SHRA to correct mistakes made by plaintiff in remodeling Lawson’s home. Willis alleged that Lawson had suffered through “a series of warped doors, and is still left with peeling paint, cracking plaster, blistered wallpaper, shoddy work, inside and out.” The story included pictures of various problems including bubbling and peeling wallcovering, peeling paint, cracked plaster, and faulty doors. Willis asserted that Call 3 had attempted to call plaintiff to discuss the remodeling problems but that she had not returned the calls. He also said that plaintiff had returned $225 to Lawson and had been released by SHRA from further responsibility for the remodeling.

In the second broadcast, another contractor who had been criticized in the first story defended his remodeling work. Willis claimed in the second broadcast that plaintiff had been given the same opportunity to defend herself but had refused to do so.

After serving a written demand for a retraction on Kelly, which it rejected, plaintiff filed suit against Kelly and Willis alleging slander per se, negligence, and malice. Defendants responded with a motion for summary judgment. In opposition, plaintiff submitted a declaration stating that KCRA had not attempted to contact her, that the allegations of substandard work were false, that much of it was done by other contractors, and that the Contractor’s State License Board had told KCRA before the broadcasts that the board would not investigate Lawson’s complaints against plaintiff because there was no factual support for them.

The trial court sustained defendants’ evidentiary objections to portions of plaintiff’s opposition and granted defendants’ motion for summary judgment on the grounds that the broadcasts were conditionally privileged under section 47(3) and that plaintiff had failed to raise a triable issue of material fact as to whether the privilege was overcome by defendants’ malice.

The Court of Appeal reversed the judgment. The court agreed with the trial court that section 47(3) afforded a conditional privilege to the broadcasts, thus requiring plaintiff to prove malice, but found sufficient evidence to raise a triable issue of material fact as to whether defendants had acted with malice.

We affirm the Court of Appeal’s judgment, but we do so not because there is a triable issue as to malice but because the broadcasts are not subject to a privilege under section 47(3).

*721 Discussion

The broad public-interest privilege claimed under section 47(3) is not constitutionally mandated or appropriate.

In recent years, the common and statutory law of defamation has been supplanted in many respects by decisions of the United States Supreme Court construing the federal Constitution. Thus, although the question before us can be answered by statutory construction, it is best understood in light of the high court’s decisions. Defendants do not contend those decisions mandate a privilege under section 47(3) but argue that they provide policy support for a statutory public-interest privilege for the news media under section 47(3). We disagree. The United States Supreme Court has construed the federal Constitution as imposing certain limitations on plaintiffs seeking to recover for defamation. The high court, however, has expressly rejected the privilege sought by defendants in this case.

For approximately 175 years after the First Amendment to the federal Constitution was ratified, libelous statements were afforded no constitutional protection. 2 The law of defamation was almost exclusively the business of state courts and legislatures. (Eldredge, The Law of Defamation (1978) § 50, pp. 252-254 (hereafter Eldredge).) The court did not squarely hold until 1931 that the First Amendment applies to the states by reason of the Fourteenth Amendment. (Stromberg v. California (1931) 283 U.S. 359, 368-369 [75 L.Ed. 1117, 1122-1123, 51 S.Ct. 532, 73 A.L.R. 1484].) As recently as 1957, the court reiterated that, “[T]he unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech.” (Roth v. United States (1957) 354 U.S. 476, 483 [1 L.Ed.2d 1498, 1506, 77 S.Ct. 1304], citing Beauharnais v. Illinois (1952) 343 U.S. 250, 266 [96 L.Ed. 919, 932, 72 S.Ct. 725].)

Only seven years later, however, the court found for the first time that libel is protected by the federal Constitution under certain circumstances. In New York Times v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412], the court held that “The constitutional guarantees [of freedom of speech and the press] require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that *722 the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (Id., at pp. 279-280 [11 L.Ed.2d at p. 706], italics added.) 3 Although the New York Times restriction applied only to public officials, by finding constitutional protection for defamation, the court “effected a profound change in the hitherto settled law of defamation and overruled the prior common law of practically every state.” (Eldredge, supra, § 51, p. 255.)

Shortly after New York Times, supra, 376 U.S. 254, the court further restricted the common law of defamation by holding that “public figures”— like public officials—must also prove malice under the New York Times standard to recover for defamatory criticism. (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 162-165 [18 L.Ed.2d 1094, 1115-1117, 87 S.Ct. 1975] (conc. opn. of Warren, C. J.).) 4

The New York Times privilege was taken one step further in Rosenbloom v. Metromedia (1971) 403 U.S. 29, 52 [29 L.Ed.2d 296, 316-317, 91 S.Ct. 1811], in which a plurality of the court concluded the malice standard should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. That is essentially the same conclusion defendants ask us to reach in this case.

Rosenbloom, supra, 403 U.S. 29, however, was short lived. In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997], a majority of the court soundly rejected the “general or public interest” test adopted by the Rosenbloom plurality for defamation actions by private persons. The court reaffirmed its support for the New York Times standard of liability but concluded that, “the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” (Gertz, supra, 418 U.S. 323, 343 [41 L.Ed.2d 789, 807].) The court stated that, “so long as they do not impose liability without fault, the States may define for themselves the appropriate *723 standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” (Id., at p. 347 [41 L.Ed.2d at p. 809].) 5

Thus, Gertz holds that the public-interest privilege advocated by defendants under section 47(3) is not required by the federal Constitution. Moreover, Gertz refutes defendants’ policy argument that federal constitutional protections for freedom of the press weigh in favor of creating a public-interest privilege in defamation actions by private-figure plaintiffs. The Gertz court carefully balanced the competing values of society’s interest in a free press and society’s need to prevent and redress attacks on reputation and found that a public-interest privilege is not constitutionally required.

The language of section 47(3) does not support a broad public-interest privilege for the news media.

Defamation has two forms—libel and slander. (§ 44.) Each is statutorily defined as “a false and unprivileged publication.” (§ 45 [libel] and § 46 [slander], italics added.) 6 Section 47(3) provides a privilege to specified communications made “without malice.” For purposes of section 47(3), malice has been defined as “a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 944 [160 Cal.Rptr. 141, 603 P.2d 58].) If section 47(3) applies to the occasion on which a communication is made and if it was made without malice, it is privileged and cannot constitute a defamation under California law. 7

*724 With this understanding of how section 47(3) operates, we turn to the issue of whether it provides a special public-interest privilege to the news media. 8 We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature’s intent. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) “The court turns first to the words themselves for the answer.” (People v. Knowles (1950) 35 Cal.2d 175, 182 [217 P.2d 1]; Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501 [247 Cal.Rptr. 362, 754 P.2d 708].) Section 47 states: “A privileged publication or broadcast is one made ...[])] 3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.”

The statutory language contains no reference to a “public interest” or any special privilege for the news media. If the Legislature had intended to create a broad public-interest privilege for the news media, the Legislature could easily have done so in reasonably clear language.

Although not dispositive, the language of other subdivisions of section 47 suggests the Legislature did not intend such a privilege. Subdivision 4 grants a privilege to “a fair and true report in a public journal” of judicial, legislative, and other official proceedings. (Italics added.) Thus, subdivision 4 depends in part on the status of the publisher, i.e., being a public journal. The omission from subdivision 3 of any reference to public journals, coupled with such a reference in subdivision 4, suggests the Legislature did not intend subdivision 3 to provide a special privilege to communications by the news media based on their status. Similarly, subdivision 5 grants a privilege to “a fair and true report” of a public meeting if “the publication of the matter complained of was for the public benefit.” (Italics added.) Subdivision 3, by contrast, does not at any point refer to the public benefit or any similar concept, including the public interest. 9

*725 The differences are illustrative. “It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.” (Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691 [193 Cal.Rptr. 511]; see generally 2A Sutherland, Statutory Construction (4th ed. 1984 rev.) § 47.23, p. 194.) If the Legislature had intended subdivision 3 to apply to the news media as such or to communications on matters of public interest, the Legislature could have used the same clear language as in subdivisions 4 and 5. 10

Most important, the privilege sought by defendants would be so broad that it would apply to almost every defamatory communication. Presumably, the news media generally publish and broadcast only matters that the media believe are of public interest, and the media defendant in every defamation action would therefore argue that the communication was a matter of public interest. We think it would be a rare case in which a media defendant would contend that its viewers or readers were not interested in the communication or that the defendant itself was not also interested. 11 Thus, the practical result sought by the news media would be that nearly everything they publish and broadcast would be privileged. A privilege is an exception to a general rule of liability, but under defendants’ view of section 47(3), the privilege would be the general rule for the news media and liability would be the exception. We believe the Legislature would have made clear its intention for such a drastic restriction on the common law of defamation, especially because the statute was enacted when strict liability was the standard of fault for defamation actions. (See discussion at pp. 726-727, post.)

The statutory language does not suggest the broad public-interest privilege claimed by defendants. To the contrary, *726 subdivision 3, and section 47 as a whole, show that no such privilege was contemplated by the Legislature. 12

Legislative history confirms that section 47(3) is narrow in scope.

Although we need not look beyond the clear language of the statute, we find strong support for our conclusion in the legislative history of section 47(3). It was enacted as part of the Civil Code in 1872. 13 At that time, in the common law of England and the United States, defamation was subject to strict liability, that is, liability without fault as to truth or falsity. (Eldredge, supra, § 5, pp. 14-25; Prosser & Keeton, The Law of Torts (5th ed. 1984) § 113, p. 804.) The standard of liability was succinctly phrased in Lord Mansfield’s often quoted statement that, “Whenever a man publishes he publishes at his peril.” (The King v. Woodfall (1774) Loftt 776, 781 [98 Eng. Rep. 914, 916].) Justice Holmes subsequently stated the rule in equally clear *727 fashion: “If the publication was libellous the defendant took the risk.” (Peck v. Tribune Co. (1909) 214 U.S. 185, 189 [53 L.Ed. 960, 962, 29 S.Ct. 554]; “libellous” is now archaic spelling.)

To ameliorate the harshness of the strict-liability standard, certain privileges and defenses developed in the common law. The one that is most relevant to the question before us is the common-interest privilege, which protected communications made in good faith on a subject in which the speaker and hearer shared an interest or duty. This privilege applied to a narrow range of private interests. The interest protected was private or pecuniary; the relationship between the parties was close, e.g., a family, business, or organizational interest; and the request for information must have been in the course of the relationship. (Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 664-665 [165 Cal.Rptr. 347] [describing limited nature of privilege]; see, e.g., Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 796 [197 P.2d 713] [recognizing that a privilege ordinarily exists for communications among church members]; Cate, Defining California Civil Code Section 47(3): The Resurgence of Self-Governance (1987) 39 Stan.L.Rev. 1201, 1204-1205 (hereafter Cate).)

The legislative history of section 47(3) indicates the Legislature intended to codify the narrow common law privilege of common interest, not to create any broad news-media privilege. We find special significance in Wilson v. Fitch (1871) 41 Cal. 363, which we decided only one year before section 47(3) was enacted. The plaintiff was an owner of a mining corporation; defendants were the editors of a general circulation newspaper that had published an article suggesting financial wrongdoing by the corporation towards its investors. In response to a libel suit, the defendants contended their article was privileged because “. . . it was published by public journalists as a matter of general and peculiar public interest, and related to the conduct of the plaintiff . . . .” (Id., at p. 382.) We squarely rejected this argument: “Nor can a defamatory publication in a public journal be said to be privileged simply because it relates to a subject of public interest, and was published in good faith, without malice, and from laudable motives. No adjudicated case, that I am aware of, has ever gone so far.” (Id., at pp. 382-383, italics added.) We noted a “due regard to the freedom of the press” but explained that the privilege sought by the newspaper would result in “little security for private character.” (Id., at p. 383.)

In light of Wilson, supra, 41 Cal. 363, the Legislature surely would have made clear any intent to create thereafter a broad public-interest privilege in section 47(3) for the news media. “ ‘It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and *728 amended statutes in the light of such decisions as have a direct bearing on them.’” (Estate of McDill (1975) 14 Cal.3d 831, 839 [122 Cal.Rptr. 754, 537 P.2d 874], quoting Buckley v. Chadwick (1955) 45 Cal.2d 183, 200 [288 P.2d 12].) The Legislature could have created the privilege sought by defendants either by the language of the statute (the most likely and better approach) or by a disapproving reference to Wilson. The Legislature did neither.

We also find significance in the drafters’ comments to section 47(3). The wording of section 47(3) was identical to that of section 31 of the original New York Civil Code published in 1865 as a codification of the common law (N.Y. Civ. Code, § 31 (Field 1865)). In the comments following section 47(3), its drafters cited two New York cases dealing with the common-interest privilege. (Cal. Civ. Code Ann., § 47 annotation (Haymond & Burch 1872).) Neither involved a privilege even remotely similar to that claimed by defendants in the present case.

The first case cited was Lewis and Herrick v. Chapman (1857) 16 N.Y. 369. A banker had received for collection from a mercantile house a note payable at the bank and drawn by plaintiffs. When the banker remitted payment for the note he informed the payee in a confidential letter that payment had been as an accommodation to the plaintiffs, suggesting that they had insufficient funds to pay the note. The court found the communication privileged on the ground that a banker entrusted by a creditor with the collection of the note has a privilege to inform the holder of the note of the inability of the maker to pay at maturity. (Id., at p. 375.) The common interest involved was private and pecuniary. No news report was involved and there was not even a question as to the public interest. 14

The other case cited by section 47(3)’s drafters was Thorn v. Moser (N.Y. Sup. Ct. 1845) 1 Denio 488, in which the plaintiff sought to recover for statements by the payee of a check drawn by plaintiff charging him with forgery of the check. The court found no privilege on the facts of the case. Moreover, neither a news report nor the public interest were at issue.

The drafters also cited a treatise on the common law, Hilliard, The Law of Torts or Private Wrongs (1859) chapter XIV, page 317. We have found nothing in that work to support the privilege claimed by defendants. Although not referring to a common-interest privilege by name, the author *729 discussed communications made in connection “with some matter of lawful business” and communications by “employers, in reference to the character of their servants.” (Hilliard, supra, (3d ed. 1866) at pp. 347 and 351.) There is no discussion of a general public-interest privilege to make false accusations against a private person. 15

The authorities cited by section 47(3)’s drafters suggest no intent to extend the common-interest privilege to the news media. Quite the contrary, they demonstrate that the privilege was meant to be quite limited. It had previously applied to essentially private interests, not matters of public interest, and there had to be a genuine common interest. (Rancho La Costa, Inc. v. Superior Court, supra, 106 Cal.App.3d 646, 664-665, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §§ 306-309, pp. 2577-2580; Cate, supra, 39 Stan.L.Rev. 1201, 1204-1205.) The interest a news publisher has in a story may or may not be shared by its audience. Even if there is a shared interest, it is not “common” within the meaning of the common-interest privilege codified in section 47(3). Moreover, under the common law it was clear that, “A newspaper proprietor has no greater privileges than any other person. He is to stand or fall by the same rules and principles of law.” (Folkard, Starkie on Libel and Slander (4th ed. 1877) § 266, p. 326; Townshend, Libel and Slander (3d ed. 1877) § 252, p. 482; Newell, Slander and Libel (4th ed. 1924) § 441, pp. 477-478.)

We find nothing in the legislative history or background of section 47(3) to indicate any legislative intent to create a public-interest privilege for the news media.

Judicial constructions of section 47(3) do not support an expansive public-interest privilege.

A. This court’s decisions

We have construed section 47(3) several times since its enactment in 1872. Although we have found under certain limited conditions a privilege for the news media under section 47(3), we have never found the broad public-interest privilege sought by defendants. We have sometimes referred to the public interest, and defendants misinterpret those references to mean there is a privilege to publish anything about a private individual in which the general public might have an interest. We have never applied the *730 statute, however, in cases involving private individuals defamed in the mass media.

As noted above, only one year before section 47(3) was enacted, we held in Wilson v. Fitch, supra, 41 Cal. 363 that a newspaper publication was not privileged merely because it related to a matter of public interest. Our first applicable decision after the enactment of section 47(3) was Edwards v. Publishing Soc. (1893) 99 Cal. 431, in which we affirmed a judgment for the plaintiff in a libel action against a newspaper which had published an article asserting that plaintiff would attempt to bribe voters in a municipal election. 16 The meaning of section 47(3) was not an issue, but the court discussed the related issue of whether evidence of the newspaper’s good faith or lack of malice should have been admitted in mitigation of damages. We found that such evidence had been properly excluded. (Id., at p. 437.) We explained that, “A newspaper proprietor is not privileged as such in the dissemination of the news, but is liable for what he publishes in the same manner as any other individual.” (Id., at p. 439.) Although bribery of voters was clearly a matter of public concern, our reasoning suggested there was no public-interest privilege for the news media.

We specifically addressed the scope of section 47(3) in Gilman v. McClatchy (1896) 111 Cal. 606 [44 P. 241], The defendant newspaper published an article in which plaintiff, a private citizen, was accused by his household servant of raping her. The newspaper contended its publication was privileged under section 47(3). The argument was essentially the same as in the present case: “[A] newspaper is a purveyor of news; the people have the right to read the news; any story gleaned by a reporter as this was gleaned, and published in the ordinary course of newspaper business without personal malevolence against the victim of the tale, should be held privileged.” (Id., at pp. 613-614.)

We rejected the claim of privilege, emphasizing that the plaintiff was a private citizen. “In support of this contention there is neither authority, law, nor justice. No point of similarity can be found between this case and those which protect a publisher who in good faith discusses the habits, qualifications, and official conduct of a person holding a public office or presenting himself as a candidate therefor.” (Gilman v. McClatchy, supra, 111 Cal. at p. 614.) The distinction we made nearly a century ago between private persons and public officials was appropriate. Before the enactment of section 47(3), there arose in the common law a defense of fair comment, which applied to communications regarding certain conduct of public *731 officials and others who put themselves or their work before the public. (Cate, supra, 39 Stan.L.Rev. at p. 1205.) The Gilman court made clear this defense did not apply to private individuals. “[T]o extend this doctrine . . . against a private individual, would be to put upon the people a greater evil than that which the constitution sought to prevent. [1J] The contention is completely disposed of in this state by the case of Wilson v. Fitch, 41 Cal. 363.” (Gilman v. McClatchy, supra, 111 Cal. at p. 614.)

Defendants and amici curiae in this case argue that the public has an interest in news and assert this as a justification for a broad privilege. The Gilman court rejected this argument with a lengthy quotation from a Michigan case. A portion merits repeating. “ ‘It is argued that a newspaper in this day and age of the world, when people are hungry for the news, and almost every person is a newspaper reader, must be allowed some latitude and more privilege than is ordinarily given under the law of libel as it had heretofore been understood. . . . [^] [N]o sophistry of reasoning, and no excuse for the demand of the public for news, or of the peculiarity and magnitude of newspaper work, can avail to alter the law, except, perhaps, by positive statute, which is doubtful....’” (Gilman v. McClatchy, supra, 111 Cal. at pp. 614-615, quoting McAllister v. Detroit Free Press Co. (1889) 76 Mich. 338 [43 N.W. 431, 437].) The Gilman court plainly rejected the notion that the news media have a privilege under section 47(3) to disseminate a falsehood regarding a private citizen merely because the subject is allegedly a matter of public interest.

We expressly reaffirmed the Gilman holding in Newby v. Times-Mirror Co. (1916) 173 Cal. 387 [160 P. 233], in which we reversed a judgment after jury verdict in favor of a newspaper, which had published a series of articles and cartoons accusing the plaintiff, a well-known lawyer who was active in a political reform campaign, of being a hypocrite and improperly tampering with court documents. The court found no privilege under section 47(3): “The duty of a newspaper to the public does not justify the publication of false and defamatory matter concerning a private citizen merely because he is active in promoting his own political views.” (Id., at p. 394, italics added; see also Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 197 [196 P. 57] [citing Newby, supra, 173 Cal. 387, with approval and affirming a judgment against a newspaper].)

As is apparent from the foregoing decisions, we have consistently distinguished between public and private citizens. The importance of this distinction was clearly illustrated in Snively v. Record Publishing