Appellate Court Vacates Lower Court Order Concerning Discovery Re Actual Malice in News-Press Defamation Lawsuit

In the ongoing battle between Wendy McCaw, owner of the Santa Barbara News-Press, and various of its employees, third parties have been drawn in, including journalist Susan Paterno, who wrote an article covering the controversy for the American Journalism Review. Ms. McCaw took exception to statements in the article, which alleged that Jerry Roberts, an editor at the News-Press, had “killed” a story to accommodate the management. This suggestion and others gave rise to the inference, said Ms. McCaw, that she meddled in the editorial running of the paper, and she and Ampersand Publishing sued for libel. Writer Paterno filed a special motion to strike under the state’s anti-SLAPP statute. The trial court granted the plaintiffs’ motion. However, the appeals court told the lower court to vacate its order, finding that the statements complained of were privileged, factually true, or that the plaintiffs were unable to show actual malice.

The anti-SLAPP statute reinforces the self-executing protections of the First Amendment.  In Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, the court directed a trial court to quash a subpoena to discover the identity of an anonymous Internet poster.  To protect First Amendment expression, Krinsky required the discovery proponent to make a prima facie showing the message board statement was libelous….The constitutional malice standard …protects freedom of expression by requiring plaintiffs who bring defamation actions against public figures to plead and prove falsehood, and to further establish actual malice by clear and convincing evidence….Trial judges should refrain from ordering “unnecessary, expensive and burdensome” discovery proceedings “if it appears from the SLAPP motion there are significant issues as to falsity or publication–issues which the plaintiff should be able to establish without discovery….”

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The third allegedly false statement arises from the article’s reference to claims by former staffers that the newspaper “slashed” their employee benefits and overtime pay….Ampersand’s own brief concedes the newspaper’s 401(k) plan “was indeed eliminated….”We do not see how the article’s “slashed” statement warrants discovery against Paterno under the anti-SLAPP’s statute’s good cause requirement. The article clearly explains that these claims about “slashed” benefits represent the views of the newspaper’s former employees. As our Supreme Court held in the Synanon case, journalists are within their constitutionally protected rights to write an article describing the perspective of only one side of a controversy. Equally important, Paterno’s decision to publish former employees’ opinions may not be tested for actual malice because the opinions are not provably false.  Opinions that present only an individual’s personal conclusions and do not imply a provably false assertion of fact are nonactionable; indeed, such opinions are the lifeblood of public discussion promoted by the First Amendment, under which speakers remain free to offer competing opinions based upon their independent evaluations of the facts. 

Read the entire ruling here. Meanwhile, a film has been made and screened about the News-Press controversy.