*1 Dist., Two. Jan. No. 19258. Fourth Div. [Civ. 1979.] MARTIN,
WALTER R. Plaintiff and Appellant, al.,
BRUCE A. JOHNSON et Defendants and Respondents.
Counsel for Plaintiff and
Jacque Boyle Appellant. Bucknum, Kirton, McConkie, Bushnell, R. Daniel & Dan S. Boyer Boyle, Garrett & Dimino and Kenneth Garrett R. for Defendants and Respon- dents.
Opinion
McDaniel, J.
Introduction A. suit Bruce Johnson R. Martin Walter brought against (plaintiff) Church of Jesus Christ of Saints and The Johnson) (defendant Latterday Plaintiff church, to as L.D.S. Church).1 also referred charged (defendant defamation, intentional had committed torts of defendants distress, interference with infliction of emotional prospective advantage *4 issue, at torts. After the action was to commit those and conspiracy motion made 'defendants’ trial summary judgment granted Thereafter, of 437c.2 to Code Civil Procedure section plaintiff pursuant motions, one to set aside defendant’s made two summary judgment 473,3 the other for new trial. The trial court to section and a pursuant “from the denial of denied both motions. Plaintiff Plaintiff’s appealed to Set Aside and the Motion ... for a New Motion Summary Judgment Trial of
Statement Facts minister in the Southern Convention. Plaintiff is an ordained Baptist teaches the of He comparative religion currently subject Melodyland Anaheim, California. of School Theology 1950’s, has written a number of Since early plaintiff provocative books, articles and and has recorded on the he pamphlets tapes subject Cult of Those “The calls the Mormonism. include: Rise of the writings a “The Maze Cults” “Mormonism” of Mor- (1955); (1957), pamphlet; defendants, as church “The First Presidency; named additional Corporation 1Plaintiff Mission; President; The California Anaheim Presiding of Bishop; of the Corporation Ward; Ward; Mesa of Fountain First Costa First Valley Ana Institute Religion; Santa Stake; Costa Mesa Irvine Institute of and Institute of Religion; Beach Newport Religion.” Procedure, the Code unless references hereafter are to of Civil otherwise 2All statutory noted. move . . if it is reads in . may summary judgment 437c part: “Any party Section thereto. merit or that there is no defense . . . Such the action has no contended there is no triable issue as to submitted show that shall be if all the papers motion granted a matter a as of law.” entitled to judgment fact and that the moving party material any be a such terms as relieve just, in “The court may, upon 473 reads part: 3Section him his taken against a . . . through from judgment, or his legal representative party inadvertence, mistake, neglect.” or excusable surprise in his “The monism” on Mormonism book entitled (1962); chapter entitled the Cults” “Mormonism (1965); Kingdom tape Yesterday articles Mormon- Magazine” concerning Today”; “Eternity ism. has numerous lectures on this theme. In Plaintiff also delivered Mormonism, his on his has addition to views writings plaintiff authored on other which he characterizes books religions pamphlets as occultic and has conducted a radio entitled “Bible Answer program Man” in California. Orange County, stems
Plaintiff’s action here from criticism defendant Johnson directed at the research integrity plaintiff’s validity on the Mormon Defendant Johnson plaintiff’s religion. opinions appar- 1, 1972, first had contact with on November on the occasion ently Mesa, of a lecture in Costa California. by plaintiff Calvaiy Chapel lecture, After defendant Johnson talked with about plaintiff’s theories. Plaintiff did not of his claimed allege any 1, 1972, occurred the November discussion. grievances during After defendant Johnson read meeting, plaintiff’s pamphlet entitled record “Mormonism.” The and exhibits before us indicate that *5 had criticized the Mormon plaintiff pamphlet aggressively religion. For stated that “Mormons are and plaintiff example, polythesists anti-Trinitarians under Christian in a clever masquerading terminology as of when in . . . are attempt appear ‘angels light’ reality they is, ‘ministers of Satan.’ ... In the final . . . Mormonism ... analysis counterfeit of the Christian . . . cleverly designed religion, [U]ndemeath of coat all Mormons adhere to the filmy pseudo-Christian tenaciously anti-Christian of Smith and dogmas Joseph Brigham Young.” in critical in “Mormonism”
Primarily response plaintiff’s opinions to the first discussion he had with had secondarily response 1, 1972, on November defendant Johnson authored a pamphlet entitled “A Mormon Answers.” Plaintiff in his bases action part against defendants on critical comments of articulated defendant by “A record, Johnson in Mormon Answers.” As in the appears criticism included the comments defendant Johnson about following plaintiff:
1. “One would be if Mr. forced Martin used question actually sources listed.”
2. “His work is a on (plaintiff’s) travesty scholarship.”
3. “Plaintiff’s contain . . . violations of what writings factually gross Smith and they taught, Joseph Brigham Young.” 4. “Mr. Martin continues his misrepresentations.” No, 5. “Did Satan tell an out-and-out lie? he told half truth. That is what Mr. Martin . . . does .”
6. “If Mr. Martin wishes to .” be honest. . .
7. “Most anti-Mormon writers much the same fashion as Mr. begin Martin, that of character assassination.”
Plaintiff further bases his action on statements made 4, 1974, defendant Johnson on June at the Westminster Presbyterian Church, Westminster, California. had Defendant Johnson in a engaged debate with plaintiff during question-and-answer period following lecture at that church. The record indicates that defendant Johnson made the comments: following I stand here and I’m with and I evidence
“(a) tonight prepared charge fraud in what Mormons you deception your representation said; teach what Brigham Joseph One further
“(b) of the fraud example you represent; “(c) Misrepresenting grossly; You
“(d) life spent years your deceiving!.]” *6 The record further indicates that the heated between during exchange and defendant at the noted, Johnson time and plaintiff place plaintiff made the statements: following Church,
“1. I have no for the Mormon nor for Smith respect Joseph and because I as has believe Orson Pratt said that Brigham Young, they have been and their deceived that to biblical theology contrary revelation.... Mormonism, are
“2. If we ever reach it will be them going by telling Jesus, truth, itas is in and out to them we by pointing though evil, hate the of the Mormon Church because it is we love them theology because and Jesus Christ did died their sins. condemned, are condemned Mormons) (i.e. If are
“3. they they to false who have have listened because prophets they Holy Scripture, with words .... merchandise of them made feigned earnest, the dedicated and the sincere and the out to heart
“My goes Mormon, (Smith) who has believed (Young). Brigham Joseph really believed a lie. . . .” You have Answers,” near “A Mormon Johnson authored
At the time defendant of the elder in the Priesthood 1972, member and he was a the end member must be 18 a male hold such Church. To years L.D.S. position, between the verbal At the time of or older. exchange plaintiff of age in the L.D.S. Church Johnson lived in June defendant Johnson and maintained his First Ward Fountain area called Valley geographical with the Johnson’s association defendant there. Because of elder position described, named church and its subsid- L.D.S. Church as Plaintiff’s as defendants. alleged right recovery against groups iary based on vicarious defendants is on liability the church theory superior. respondeat the record issues framed appeal, key procedural
Beyond
of the action as
issues
merits
several interesting
relating
suggests
within the framework of
For
filed.
public figure
example,
Welch,
Plaintiff’s notice of appealing expressly to Set Aside Motion the denial Summary Judgment [his] [his] Defendants contend a New Trial.” Motion ... plaintiff’s appeal *7 from orders. he has because should be dismissed nonappealable appealed in California an settled forbids that “well first assert Defendants authority . . .” motion to set aside denial of a from a previous judgment. is defendants appellate procedure unquestioned urge Secondly, “[i]t Trial is for a New of a Motion that a denial nonappealable.” below, in As we shall defendants are correct their assertion that explain denial a new from the trial court’s of his motion for trial plaintiff’s appeal must be because such an order is On disregarded nonappealable. hand, the other defendants’ contention that from the plaintiff’s appeal trial court’s order his section 473 motion is similarly nonappeal able is incorrect. Such an order after judgment clearly appealable. 904.1, Thus, subd. issue before us is whether the (b).) (§ key trial court abused its discretion in section 473 motion. denying plaintiff’s Our conclusion is that it did not.
I on the earlier motion for made During hearing summary judgment defendants affidavits were by they argued plaintiff’s opposition defective because and were not based on contained they hearsay legally Hence, defendants, the declarants’ according personal knowledge. they to conform to the in section 437c declara- failed governing requirements to a motion for tions and affidavits filed opposition summary or declarations shall be affidavits judgment. “Supporting opposing shall set forth admissible on made knowledge, by any person personal evidence, shall show that the affiant competent affirmatively 437c, therein.” italics added.) to the matters stated (§ testify noted, of the the trial court defendants’ motion Because defects granted to strike certain declaration and exhibits paragraphs plaintiff’s so, stated, “Gentlemen, submitted him. the court the motion doing five, six, strike ten eleven and all of the exhibits to the Paragraphs contains, declaration of Walter Martin is on the that same granted ground is offered for the truth of what was and that said it’s and it does hearsay not to the Court to come within of the to the appear any exceptions rule.” hearsay and exhibits stricken deal with information paragraphs essentially to introduce in connection with vicarious
plaintiff sought proving liability claims the L.D.S. Church. For conspiracy against example, para- declaration, court, 5 of stricken reads: graph “5. the course of this I had a with During litigation, meeting Marilyn Johnson, Johnson, Grove, wife of defendant Bruce at Garden California. I Johnson to which asked various Marilyn During meeting questions she A wás taken of the conversations which occurred at responded. tape of which is attached hereto as Exhibit B. From that meeting, transcript *8 conversation, that the accusations Bruce it became made by apparent 4, 1974 those contained in his ‘A Johnson on June publication Answers’ were made as of a Mormon maliciously part conspiracy by authorization, consent and ratification with the knowledge, subsequent various defendants and their officers and agents.” [church]
After the trial court awarded defendants their summary judgment, noticed a motion to set aside that to section plaintiff judgment pursuant motion, 473.4 In of his asserted support attorney “[t]hat [his] filed affidavits that were not within the inadvertently mistakenly Plaintiff’s declaration in personal knowledge plaintiff.” attorney’s of the section 473 motion offered the “excuse” for the following support submission of defective declaration and exhibits at the time of plaintiffs motion: “. . . it was our office’s decision that due summary judgment to the lateness of time in our and not filing opposition papers wanting continuance, to have to obtain a that the affidavits again believing were sufficient to allow to state what other had told him persons to attach said affidavits to our personally, opposition papers.”
II
to the several
Turning
questions imported by
foregoing
California law in this area is well settled and holds that a denial of a
aside
motion
set
a
not
(See,
previous judgment
generally
appealable.
Willett,
Southern Pac. R. R. Co. v.
Exceptions Daley County of the court 693], that while a Cal.App.2d Cal.Rptr. recognized from a have default “the record correctly judgment, party might appealed 4See footnote 3 ante.
604 on would not have reflected side of the Under appeal party’s] story. [that circumstances, these where a direct from the dismissal is appeal relatively ineffectual, the order to vacate the dismissal refusing appealable. (Id, [Citations.]”
Further, 210, v. 49 Cal.2d Spellens Spellens, supra, Supreme Court that “an be taken from an order recognized appeal may denying [a motion to where the has been obtained judgment vacate] through mistake, inadvertence, or excusable surprise, neglect.” that case the court a from an order permitted party’s appeal denying motion to set aside the because a mistake of fact had existed judgment when the trial court made its order. (Id.)
More . . . cases where the law makes precisely, express provision “[i]n a motion 473, to vacate under section . . .—an [original italics]—as order such motion is as a made order denying regarded ‘special after final and as such is .. . .” v. judgment’ (Winslow appealable [italics added] Harold 274, G. 25 see, Cal.2d 282 P.2d 714]; Ferguson Corp., e.g., [153 Paqlmese Smith, v. 991, 11 998 256]; v. Cal.App.3d Cal.Rptr. [90 Sanford Superior Court, 600, 193 602 In re 453]; Cal.App.2d Cal.Rptr. [14 Simmons, 49 835-836 213].) Marriage Cal.App.3d Cal.Rptr. [123 therefore, Our it the order principal inquiry, appearing the section 473 motion is is to determine whether appealable, facts that he was entitled to relief under plaintiff presented any showing 473, and section more whether the trial court abused its discretion exactly motion made to that section. denying plaintiff’s pursuant
It is axiomatic that a motion for relief under section 473 is addressed to the sound discretion of the trial court. The exercise of that discretion will not be disturbed on absent a clear showing abuse. More the discretion to be exercised is that of the trial importantly, court, Thus, not that of the court. even if the reviewing reviewing have ruled instance, otherwise in the first the trial court’s will order might unless, not be law, reversed as a matter of it is not yet supported by record. v. 36 Cal.2d 263 P.2d 244].) (Coyne Krempels, [223 we note that the law favors trials on the merits and Additionally, courts are loath to counsel, the omission of penalize litigant when the has acted and has relied particularly litigant promptly, upon Cook, his (Martin attorney protect rights. Cal.App.3d Nevertheless, obtain relief under section Cal.Rptr. must demonstrate that the mistake or on the neglect part was excusable. counsel (Id.) *10 799, Cook,
In Martin v. 68 the court reversed a trial supra, Cal.App.3d 473 In court’s of a section motion. that case the defendant grant plaintiff’s moved to dismiss because of the failure to the case to trial plaintiff’s bring 583, within five to section subdivision That motion (b). years, pursuant Plaintiff then moved to set aside the was dismissal to granted. pursuant 473, section that his failure to with section 583 was arguing comply because of inadvertence and mistake. The trial court granted plaintiff’s motion, trial, section 473 the case then went to and the recovered $100,000 verdict. reversed, On the court that the trial court had abused appeal, holding its discretion in 473 section motion because “counsel granting plaintiff’s of his when considered in the of the delay plaintiff’s explanation light record . . . demonstrates a lack of . . . indicates a failure to activity [and] the who files an action on discharge duty devolving upon every person client, behalf his to it with reasonable prosecute promptness {Id., 808.) diligence.” Martin,
In counsel the plaintiff’s signed stipulation waiving provi sions section subdivision the statute. He (a), two-year erroneously however, that the had likewise waived the thought, stipulation five-year in section subdivision a declaration (b). provision supporting motion, section 473 counsel that his mistake plaintiff’s plaintiff’s argued of fact rendered enforcement of section subdivision (b) unjust. that counsel “[fjailure rejected argument, holding
to read and the understand to carefully stipulation prior executing the same is inexcusable conduct and does not filing provide foundation for to assert dismissal estoppel five-year mandatory statute.” More California courts have taken the importantly, expressly position “ law, of the at least where with ‘[i]gnorance coupled negligence it look will not a trial court relief
failing up, justify granting and such [citations], facts will sustain a relief. certainly finding denying Construction, (Coordinated Inc. v. [Citations.]’ [Citation.]” Canoga Big “A,”Inc., Cal.App.2d Cal.Rptr. Construction, Inc.,
In Coordinated defendant’s failed to supra, attorney consider a time limitation rule for the providing filing responses to confirm or vacate an arbitration award. Such failure resulted
petitions in defendant’s late be filed and thus not considered response then court. Defendant noticed a section 473 set motion to aside the trial court’s order the arbitration award. The trial court denied confirming defendant’s motion. On the court order affirmed the appeal, “ motion, ‘The section 473 that: issue of which mistakes of law holding a fact constitute excusable neglect presents question; determining factors are the reasonableness of misconception justifiability of lack of determination of the correct law.’ (Id, [Citation.]” admitted he was of the law and attorney ignorant “[Defendant’s] *11 he was in it as to consider he failed the apparently negligent researching case, section. Such the the trial court refused to applicable being correctly the motion.” (Id., 320.) grant in Truck Line 117 Similarly, Security City Monterey, Cal.App.2d 257 P.2d P.2d the court affirmed a trial court’s 755], denial
of defendants’ section 473 to set aside motion a default The judgment. court noted that sole now relied secure a reversal of ground upon “[t]he the order to set aside the default is . . . that refusing city attorney but believed that from the order honestly erroneously appeal [an] of all as a granting preliminary injunction operated stay proceedings in the main action.” (Id.,
The went on court to note an honest that mistake when the problem and debatable “and where there are no elements complex negligence, indifference, laxness or section 473 compel granting [a (Id., at p. motion].”
However, in court’s denial of trial defendants’ section 473 affirming motion the reasoned that assertion that counsel for the “[t]he defendants believed that the for the acted injunction appeal preliminary as a and made it made in the to be main stay unnecessary appearances action is not sufficient to a reversal of the order relief. compel law involved is a one. solution is Its problem simple readily When this with ascertainable. the fact counsel that coupled warned counsel for defendants that were and did appearances necessary not take the default until over two weeks had after it elapsed warning, is clear that the trial court was to look justified believing failure the law indicated at least italics added.) up indifference.’’'’ here, the declaration counsel
Similarly by plaintiff’s original section motion offer fails to accompanying any adequate excuse to relief under that section. The failure to read permit carefully section 437c and to realize that all affidavits filed in thereby opposition a motion for must contain admissible evidence summary judgment only demonstrates indifference and falls within the rule of clearly Security Truck Line. The assertion that “the affidavits were conclusionary to be sufficient” fails to such an mistakenly thought legally explain why obvious mistake occurred. The circumstances here involve an easy, rule of law embodied in the Code of Civil uncomplicated expressly Procedure. We cannot such was reasonable or say misconception Hence, in our view the trial court did not abuse its justifiable. discretion set motion to aside the denying plaintiff’s summary judgment pursuant to section and its order is affirmed.
Ill We note further that has also from the trial appealed court’s denial of his motion for a new trial. The Court has Supreme stated: “No lies from the trial court’s denial of trenchantly trial; defendants’ motion for new be reviewed ruling may only *12 an the from Defendants have not through appeal judgment. [Citations.] and, from the since notice of is a appealed judgment, timely appeal we are without to [citation], review jurisdictional requirement jurisdiction the or Flotho, the denial of defendants’ motion.” v. (Hamasaki judgment 39 Cal.2d 608 P.2d 910].) [248
Plaintiff that we construe his from the trial court’s urges denial appeal of his motion for a new trial as an from defendants’ appeal summary an order. He that court judgment, appealable argues Appellate “[o]ur have been [j/c] committed to form less than substance . . . long respect and have rule that of liberal construction of a Notice of applied Appeal the end that a maintain his of rather litigant may properly right appeal than lose that because some inartful of of such Notice.” right framing
We such a device has been resorted to acknowledge occasionally courts in this state under certain circumstances. (See, v. by e.g., Shonkoff Co., Dant Inv. 258 101 In 463].) Cal.App.2d Cal.Rptr. [65 Shonkoff, “ ” ‘from the order new trial.’ plaintiff appealed solely (Id.) denying court both from the recognized practice appealing “[t]he judgment and the order new trial has been condemned denying repeatedly However, dismissal of the latter because (Id.) notice of appeal.” was directed to the order a new trial appeal only denying Shonkoff error, because of his and “mere error counsel not attorney’s [should] 608 a of all held 102), “the notice (id.,
deprive party appeal” be deemed constitute an from should appeal judgment.” Unlike the our dismissal of Shonkoff, plaintiff’s appeal from a order not will him “of all Our nonappealable deprive appeal.” decision in this case derives from a consideration of the issue of whether trial its court abused discretion in section 473 denying plaintiff’s motion. Plaintiff had from order the trial court properly appealed motion. Now to accede and construe plaintiff’s request notice from a an his order as from appealing nonappealable appeal would a second at the bite summary effectively judgment give plaintiff view, he This cannot have. In our here the situation is one “where apple. a notice of from a order cannot should not be appeal nonappealable treated to be notice from a . . entered.” v. (Evola appeal judgment. Co., Construction Wendt P.2d 158].) Cal.App.2d [323 When orders, from both party appeals appealable nonappealable courts in this state dismiss the from latter order. (See, regularly Flotho, 602, 608; Barnett, v. Hamasaki Cal.2d e.g., supra, Rodriguez 154, 156 52 Cal.2d P.2d from dismissing plaintiff’s appeal trial, trial new court’s denial his motion for a we have done no more than adhere to that well-established practice.
Disposition *13 The trial court’s order section 473 motion is denying affirmed. Plaintiff’s from trial the court’s order his motion appeal a for new is trial dismissed.
Gardner,
J.,
Tamura, J.,
P.
concurred.
Although the
McDANIEL, J.,
of this
Concurring.
procedural posture
case
resulted in
above,
a
of the
as
necessarily
disposition
circumstance remains that
the substantive
which
to
led
this
dispute
Moreover,
continues unresolved.
it can
be
litigation
inferred from
readily
the record that Mr. Martin is not
to cease his
likely
writing
speaking
for the
his views on the L.D.S. Church.
it
airing
can
purpose
Similarly,
be inferred that Mr. Johnson and others of
devotion to the church
equal
will not
to
cease
take issue with the
of Mr. Martin.
opinions
so,
further
As a
there
be
likely
litigation,
consequence,
briefs,
the substantive issues in their
I
because the
did address
feel
parties
to discuss those issues as
did
to have been treated
constrained
they
appear
the motion
the trial court in
on
ruling
summary judgment.
record,
of the
the trial court
More
from
particularly,
my reading
motion
defendants’
because
summary judgment
appeared
grant
show,
failed to
in those
of his declaration not
paragraphs
stricken,
Johnson had either
or uttered the
defendant
published
Thus,
statements with “malice.”
trial
alleged defamatory
Sullivan,
assumed, as did both
that the New York Times Co. v.
parties,
In Curtis
Co. v.
Assuming parameters Gertz, definition articulated in I conclude that “public such a figure” Plaintiff, decision was correct. 25 some years, voluntarily injected himself into and fuel a whether Mormonism helped specific controversy; is a Christian or a non-Christian cult. Such a religion controversy characterized as “a Gertz v. properly (See, particular public controversy.” Welch, Inc., Robert 418 U.S. L.Ed.2d supra, [41 Furthermore, advocated that Mormonism is a non- plaintiff publicly cult, Christian of books and through publication pamphlets, recording a radio entitled “The tapes, frequent lecturing, conducting program view, therefore, Bible Answer Man.” In thrust himself to the my involved; (3) in the media fear of the reply judgment place.” of the market view neither defendant Johnson nor defendant my church is to those subject types restraints and hence are not denoted as media defendants. properly Butts, 3In 388 U.S. of five members of Curtis Co. supra, majority Publishing ” the “actual malice test was Four court agreed applicable ‘public figures.’ members of the court instead a standard based on unreasonable other adopted highly in terms of extreme from the standards of conduct phrased departure investigation (See, adhered to 388 U.S. at and reporting ordinarily by responsible publishers. 1111], (Harlan, J.).) L.Ed.2d at p. areas, official be free 4“The definition but the definition relatively gray (Shiffrin, and difficult to . . .” public figures disturbingly opaque apply. Defamatory 915, 960, (1978) and First Amendment Non-Media UCLA L.Rev. Speech Methodology omitted.) fn. *15 forefront of that and to influence its outcome. controversy attempted Welch, Inc., v. Robert (Gertz U.S. L.Ed.2d supra, Thus, can be characterized as a plaintiff correctly public figure. is a whether he still must show Assuming plaintiff public figure, defendants or uttered statements with actual published defamatory malice is not at all clear. the of the “Throughout expansive development doctrine, little attention has been to very given [Sullivan] determining who besides the ‘mass media’ utilize this constitutional as a privilege defense in defamation actions.” First (Note, Amendment Protection Libel Actions: Media and Non-Media Against Distinguishing Defendants 902-903, 47 So.Cal.L.Rev. fn. (1974) noted, As omitted.) both already and defendants assumed the Sullivan test plaintiff if applied were a of their public at the figure. gravamen conflicting arguments motion therefore was limited to whether summary judgment was Both to failed consider whether public figure. parties unfortunately actual malice test should defendant, if the here, like defendants apply were words, not media In related. other is New York Times Co. v. Sullivan, 376 U.S. a free rather than free supra, solely press speech case constitutional to media rather than extending greater protection nonmedia communications? a commentator has addressed that Recently, issue. Non-Media (Shiffrin, First Amend- precise Defamatory Speech ment 25 UCLA L.Rev. (1978) Methodology
Professor Shiffrin that Gertz can be read to infer that the court argues “a has based of the first amend- adopted politically interpretation states; ment. . . .” He “A clue is (Id., the Court’s provided by to limit its to a limited class of defendants attempt holding interchange- described at various to include broadcasters, ably points newspapers, media, and broadcast broadcasters, media, press publishers media, media, news the communications and the (Id., at press.” However, fns. omitted.) Professor Shiffrin notes that “[t]his to between media and nonmedia defendants apparent attempt distinguish fns. omitted.) he entirely unexplained.” regard, posits that distinction. theory explaining court,
Professor Shiffrin reasons that the First by impliedly limiting Amendment advanced Sullivan media defendants protections only, that communications not relevant issues are by holding “nonetheless . . . entitled to a level of first amendment (id., protection” has issues” test advocated 927) Alexander rejected “public determine of First Amendment constitutional Meiklejohn scope *16 to relevant self- That theorizes “speech approach protections. under the first amendment is absolutely protected [whether government relevant to not media or nonmedia uttered defendant], speech by its and . . . fair game government beyond scope self-government are due (Shiffrin, so as respected.” process requirements regulation long Amendment (1978) and First Non-Media Methodology Speech Defamatory 915, 917, Political Freedom (1960) L. UCLA Rev. Meiklejohn, citing added, the court’s Professor Shiffrin views omitted.) fns. italics p. that the as its “belief theory demonstrating rejection Meiklejohn’s between private public speech inability distinguish precisely a level that some be afforded of constitutional speech requires private so that be not chilled.” (Id., public speech unnecessarily protection the court doubts “the wisdom of committing Apparently, what is versus On that the task” deciding public private speech. judges basis, that “the distinction between media and Professor Shiffrin reasons defendants . . . becomes because the non-media major comprehensible” interest while the of media defamation involves matters public ity comments nonmedia defendants does not. of defamatory majority (Id.) all media within the
In noting “by placing defamatory speech amendment, it of the first the Court believe has protected may scope little Professor Shiffrin “the Court argues relatively non-public speech,” to non-media the result fear that if Gertz were extended speech, issues, to do with be to much would having nothing public protect speech little that does.” italics (Id., while relatively safeguarding added.) of whether the court to have limited the Sullivan appears
Regardless media defendants Professor Shiffrin concludes test to that to extend only, the actual malice test to nonmedia defendants when defamatory speech directed at officials or would not be inconsistent with public public figures current the court’s basis of such an extension approach. underlying be that directed at either would class is relevant to defamatory speech understood, issues. “So Gertz that debate on issues implies public robust and will be first amendment if sufficiently wide-open purposes non-media is constitutionalized extent defamatory speech only it involves public persons.” here is of the fact Shiffrin’s
Professor Regardless reasoning persuasive. defendants, media was are not defendants public figure, plaintiff, within the trial court to “actual malice” prove correctly required malice” test. of the Sullivan “actual framework *17 He further notes that the limitation of the actual malice test apparent to media defendants in Gertz have other than that of a may origins based of the First Amendment. politically interpretation Simply, believe that the media is and therefore constitutionally special entitled to First Amendment than nonmedia greater protection speakers. view, “Under this neither nor Sullivan Gertz would protect defamatory non-media Thus all non-media even that speech. defamatory speech, officials, would be of the first discussing public beyond scope amendment.” (Shiffrin, Non-Media and First Amend- Defamatory Speech ment 25 UCLA L.Rev. (1978) Methodology
I Shiffrin, also with however, Professor agree “Sullivan standards should be officials or whether required public public figures or not the defendant fits into the media (Id., category.” Professor Shiffrin articulates a rationale for such a rule: “The persuasive idea that first amendment should be divvied out protections consciously in more doses to those with wealth, and generous knowledge, capacity cause is indefensible. is the idea damage Particularly disquieting those with to cause should be afforded greater capacity damage special Such a would not protection. perspective only bespeak disrespect the interest in but it would also reflect an indifference to the reputation, concern with the ‘vast accumulations’ of growing in the public power ” ‘modem media fns. (Id., omitted.) empires.’ Moreover, onto the First Amend- grafting principles “mediaocracy” ment media defendants a status and thereby granting preferred greater would have substantial detrimental effects on protection society Such a rule would “deter nonmedia contributions to the general. likely democratic thus would weaken the media’s (and dialogue contribution), would favor those with to cause and with greater capacity damage greater for that ability would compensate risk), damage (by spreading difficult determinations as to which communications would and require would ‘media,’ not merit the label or would strain basic ‘press’ principles of first amendment and would diminish for the equality, respect democratic fns. omitted.) process.” sum, if the issue us, were before I would vote to properly adopt discussed here and the Sullivan actual
analysis malice test where a apply nonmedia defendant engaged defamatory speech concerning figure.
A for a was denied 1979. petition rehearing February