KSDO v. Superior Court
186 Cal. Rptr. 211, 136 Cal. App. 3d 375, 8 Media L. Rep. (BNA) 2360 (1982)
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Rule of Law:
The California newsperson's shield law provides only an immunity from contempt, not a privilege against disclosure. However, the First Amendment provides a qualified privilege that protects a newsperson from being compelled to disclose unpublished materials in a civil libel action if the requesting party has viable alternative sources for the information sought, such as the identities of sources which the newsperson has already revealed.
Facts:
- The Riverside County Sheriff, Clark, initiated an investigation into the Riverside Police Department.
- The sheriff's department allegedly disseminated a report that members of the Riverside Police Department were involved in drug trafficking between the United States and Mexico using official police cars.
- Hal Brown, a news reporter for KSDO radio, broadcast a report based on a confidential source alleging widespread corruption and heroin smuggling by the Riverside Police Department.
- The Riverside Press-Enterprise newspaper subsequently published articles repeating the substance of KSDO's broadcast.
- During a deposition related to a lawsuit filed by the police officers, reporter Hal Brown revealed the identities of the sources for his story.
Procedural Posture:
- Members of the Riverside Police Department sued KSDO radio, reporter Hal Brown, and others in a state trial court for libel and violation of civil rights.
- During discovery, the plaintiffs deposed defendant Hal Brown.
- The plaintiffs filed a motion to compel production of Brown's notes and memoranda related to the story.
- The defendants (Brown and KSDO) opposed the motion, asserting privilege under California's shield law and the First Amendment.
- The trial court granted the plaintiffs' motion and ordered the defendants to produce the notes.
- The defendants, as petitioners, sought a writ of mandate/prohibition from the Court of Appeal to prevent the trial court from enforcing its discovery order.
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Issue:
Does the First Amendment's qualified newsperson's privilege protect a reporter, who is a defendant in a libel action, from being compelled to produce unpublished notes after the reporter has already disclosed the confidential sources of the information contained in the notes?
Opinions:
Majority - Trotter, J.
Yes, the First Amendment's qualified privilege protects the reporter's unpublished notes from discovery under these circumstances. The court first clarified that California's shield law (Evidence Code § 1070 and Cal. Const., art. I, § 2) does not create an evidentiary privilege against disclosure; it merely provides an immunity from being held in contempt for refusing to disclose. Since the reporters were not facing a contempt citation, the shield law is inapplicable to the underlying discovery order. However, the First Amendment provides a qualified privilege for newspersons to protect the free flow of information. To determine if this privilege applies, courts must balance several factors on a case-by-case basis, including the nature of the proceeding, the newsperson's status as a party, the relationship of the information to the heart of the claim, and crucially, the availability of alternative sources. In this libel case, although the information goes to the heart of the plaintiffs' claim, the reporter, Brown, already disclosed his sources during his deposition. By providing the sources' identities, Brown gave the plaintiffs an alternative means to obtain the information they seek—they can now depose the sources directly to test their reliability and the veracity of the broadcast. Because the plaintiffs failed to show that the information in Brown's notes is unavailable from these alternative sources, the First Amendment's qualified privilege shields the notes from compelled disclosure.
Analysis:
This decision establishes a critical distinction in California law between the state's statutory 'shield law' and the qualified privilege for journalists under the First Amendment. It clarifies that the shield law is a narrow procedural protection against contempt, not a substantive bar to discovery. The ruling's primary significance lies in its application of the First Amendment balancing test, specifically emphasizing the 'alternative sources' prong. By holding that a reporter's disclosure of sources satisfies this requirement and thereby protects their unpublished work product, the court provides a pathway for journalists to shield their notes and internal processes even when they are defendants in a libel suit.
