Anonymity protected under 1st p.12

By: M.L. Stein Calif. court rules that paper doesn't have to reveal names of ad clients

Declaring that the "anonymous pamphleteer is one of the enduring images of the American revolutionary heritage," a California appellate court has given First Amendment protection to unnamed writers of paid advertisements espousing a cause.
"The right to speak anonymously draws its strength from two separate constitutional wellsprings: the First Amendment freedom of speech and the right of privacy ? in the California Constitution," states the 4th District Court of Appeals, reversing a lower court ruling and ordering the court to quash a subpoena for the names of the authors of the ads. However, the court did not give shield law protection to such ads.
The case involves the weekly Downey (Calif.) Eagle, which carried the ads from citizens' groups bitterly opposed to a publicly owned local hospital's plan to become affiliated with a for-profit HMO. There were charges of self-dealing, backroom deals, bribery, sexual misconduct, incompetence, and mismanagement.
The hospital and "affiliated persons" filed defamation suits against a local doctor and one group, Concerned Citizens of Downey, charging them with engaging in a "vicious and concerted scheme" to ruin its reputation "by publishing false and malicious writings about them in the Downey community." The hospital used discovery proceedings in an attempt to learn the identities of the 1,000 "Doe" defendants in its complaint.
The Eagle also ran a series of ads by another group, Save Our Hospital. Only some of them were signed. The advertisements asked: "Why would Management and most of the [hospital] governing Board refuse to [state] they will not personally profit from the sale of the hospital?"
The court termed the ads "core political speech, e.g., the allocation of public and private resources for health care."
Downey Community Hospital, in connection with its suits, subpoenaed the Eagle, demanding that it produce all documents reflecting the names of the advertisers and a record of all communications between the paper and representatives of the two organizations. Citing the state shield law and the state constitutional right of privacy, the Eagle appealed to quash the subpoenas. A Superior Court judge had held the newspaper in contempt for refusing to turn over the names to the hospital.
The higher court rejected the hospital's argument that the shield law is limited to news-gathering or news publication, pointing out that cases show that shield laws cover a "variety of editorial functions."
Although freeing the Eagle from the threat of the hospital's subpoena, Crosby notes: "We ? cannot agree with the Eagle that every newspaper advertisement automatically falls within purview of the media shield law. Even in an era awash with hype and overcommercialization, there remains a fundamental distinction between the reporting and editorial functions of a newspaper and the buying, selling, and placing of commercial advertisements."
Crosby also chides the Eagle for its statement about the need for protecting the "confidentiality expectations" of its advertisers, asserting there is "no supporting declaration establishing [its] intent to publish those advertorials as part of its editorial process or to transmit news or commentary on matters of public interest to the Downey community. ? As far as we know, the Eagle was indifferent to the informational content of those advertisements."
Los Angeles attorney Kelli Sager, who represented the Eagle, hails the decision as "protecting what the Constitution was meant to protect. The court is saying that people should not be punished for publishing viewpoints. At the same time, the justices are saying the privilege should not be applied to every single advertisement in any publication regardless of content," she says.
Leonard Venger, the hospital's counsel, told the San Francisco Daily Journal that his client respects the First Amendment and doesn't mind criticism. He adds, "some people crossed the line and instead of dealing with fair-and-square issues surrounding the hospital, chose to make anonymous false allegations about the personal lives of people."
?(Editor & Publisher Web Site: http:www.mediainfo. com) [Caption]
?(Copyright: Editor & Publisher March 6, 1999) [Caption]


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