Nadel v. Regents of University of California

Opinion

I. Introduction

In this case we hold that the standard of malice set forth in New York Times Co. v. Sullivan (1964) 376 U.S. 254 [ 11 L.Ed.2d 686 , 84 S.Ct. 710 , 95

David Nadel and Carol Ruth Denney appeal from a defense judgment in their defamation action against The Regents of the University of California and four university employees, arising from the employees’ statements concerning purportedly violent and destructive conduct by Nadel and Denney in opposing the construction of volleyball courts at People’s Park in Berkeley. The court ruled that Nadel and Denney were public figures and failed to present evidence of malice. We affirm.

A. History of People’s Park

People’s Park, comprising 2.8 acres of open space, has been a subject of great controversy for more than 30 years. The University of California (University) acquired the property in the early 1960’s, intending to use it for student housing, but this plan went awry in the face of widespread opposition, which led to full-scale street battles between protestors and police in 1969. By the 1980’s, the park had become a refuge for the homeless.

From 1987 through 1991, the University and the City of Berkeley devised a plan for joint management of the park: a portion of the property would be leased to the city for development and maintenance as a city park, and the remainder would be developed and maintained by the University as an outdoor recreational facility. The first stage of the plan called for the University to construct two sand pit volleyball courts in a corner of the park. Construction began on July 31, 1991.

B. Opposition to the Volleyball Courts

A group of protestors, the People’s Park Defense Union (hereafter Union), opposed tiie construction of the volleyball courts, and in a series of fliers warned of violent consequences. One flier declared, “If It Is Class War They Want It Is Class War They Will Get,” as well as “They Try It—We Riot!” and “We must impress upon these ruling class, selfish, and mean spirited pricks that their BMWs and Mercedes [szc] will not be safe on the streets of Berkeley nor will construction sites for condos and UC or yuppie developments. They may be capable of suppressing mass actions, but will not be able to cope with a guerrilla campaign of attrition and retribution.” Another flier announced “a summer-long campaign of direct action

As construction of the courts progressed to completion and public use commenced, opposition by the Union escalated, sometimes with violent results. There were incidents of vandalism and damage to the courts, confrontations between protestors and court users, and—as promised—rioting.

Nadel and Denney were members of the Union and were active and vocal opponents of the volleyball courts. Nadel spoke out against park development at city council meetings and at public demonstrations, helped organize public events in the park, wrote a letter to the editor of a local newspaper and an “open letter” to the University and the city addressing the development issue, and spoke to print media reporters who included his comments in articles about the People’s Park controversy. Denney also spoke out against park development at city council meetings and made antidevelopment speeches at political and cultural events. Additionally, she participated in a press conference regarding an incident at a demonstration in which she was arrested.

C. The Purported Defamation

On January 10, 1992, the University sued the Union, Nadel, Denney and two other activists for damages and injunctive relief, and obtained a temporary restraining order (TRO) enjoining the defendants from committing acts of violence and vandalism against University employees and property. During the next several months, four University employees—the individual defendants in the present defamation action—issued press releases and made statements to the press and the public regarding the University’s lawsuit and the TRO, in which Nadel and Denney were characterized as perpetrators of violence and destruction of property.

On the day the University filed its lawsuit, Jesus Mena, a public information officer, issued a press release explaining that the lawsuit was “aimed at deterring the campaign of destruction and violence against University of California at Berkeley facilities, students, and employees—as well as park and community users—by the People’s Park Defense Union and several of its principal members.” The press release referred to “numerous specific acts of violence committed by these parties” as well as “repeated threats of violence.”

Mena’s press release was accompanied by a written statement by Vice-Chancellor Daniel Boggan, Jr., which included the following assertions:

An article in the Daily Californian dated January 27, 1992, quoted Milton Fujii, the University’s community affairs director, as stating, “These are folks who have shown a repeated pattern of violent or destructive actions, (and who are) most responsible for the damage and violent acts.”

An article in the East Bay Express dated March 13, 1992, quoted University attorney Christine Helwick as stating, “We are not after anyone except those who have a history of violent conduct.” A subsequent article in the San Francisco Weekly quoted Helwick as stating, “There has been a deliberate, violent campaign to hinder the university’s ability to transition this property into a park.”

On March 25,1992, Vice-Chancellor Boggan issued a press release on the costs incurred by the University in the development of People’s Park, in which he stated that “a few individuals have committed themselves to obstructing, through sometimes violent and destructive tactics, every attempt by the University and the City to restore a healthy environment at the park. . . . HQ Although small in number, those who have continually shown wanton disregard for other people’s rights and well-being pose a serious threat to public safety that cannot be ignored.” The press release concluded with an affirmation of the University’s commitment to pursue “litigation to deter perpetrators of violent and destructive acts.” On April 8, 1992, this press release was quoted in the Berkeleyan.

Finally, in a letter dated July 9, 1992, replying to a citizen’s letter concerning the University’s lawsuit, Vice-Chancellor Boggan said, “These individuals stated that their goal was to sabotage University facilities at People’s Park and to undermine the agreement between the University and the City .... Unable to alter the consensus through debate and reasoned discourse, they resorted to the use of fear and violence to impose their will on the community.”

Each of these cases involved news media defendants. The Supreme Court has never said whether the New York Times rule applies in litigation by a public official or public figure against an individual defendant who is not a member of the news media. In fact, the court has expressly refrained from deciding that issue. (Hutchinson v. Proxmire (1979) 443 U.S. 111 , 133-134, fn. 16 [ 61 L.Ed.2d 411 , 430, 99 S.Ct. 2675 ].)

Numerous state courts have held, as a general proposition, that the New York Times rule does indeed apply to nonmedia defendants, usually on the theory that there is no basis for affording greater protection to the media than to ordinary citizens. (E.g., Anderson v. Low Rent Housing Com’n, etc. (Iowa 1981) 304 N.W.2d 239 , 247; Vandentoorn v. Bonner (1983) 129 Mich.App. 198 [ 342 N.W.2d 297 , 301-302]; Britton v. Koep (Minn. 1991) 470 N.W.2d 518 , 521; Casso v. Brand (Tex. 1989) 776 S.W.2d 551 , 554; see Annot., Defamation: Application of New York Times and related standards to nonmedia defendants (1985) 38 A.L.R.4th 1114 .) This includes California. In Miller v. Nestande (1987) 192 Cal.App.3d 191 , 200 [ 237 Cal.Rptr. 359 , 62 A.L.R.4th 301 ], the court concluded: “Whether criticism of public officials is published by the media or disseminated by individuals, we hold it is protected by the constitutional standard expressed in New York Times." (Fn. omitted.) Tliis approach finds support from Justice William J. Brennan, Jr., who observed in 1985 that “. . . at least six Members of this Court . . . agree today that, in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities.” (Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749 , 783-784 [ 86 L.Ed.2d 593 , 618-619, 105 S.Ct. 2939 ] (dis. opn. of Brennan, J.).)

No court, however, has decided the specific question whether the New York Times standard applies to a defendant that is not only not a member of

With the proper focus on the rights of listeners to receive information rather than on the identity of the speaker, it would seem irrelevant, for purposes of First Amendment applicability, whether the speaker is media or not, and government or not. This point favors application of First Amendment protections, and hence the New York Times standard, to government defendants, just as it has been relied upon to favor application of the standard to nongovernment nonmedia defendants. (E.g., Miller v. Nestande, supra, 192 Cal.App.3d at p. 198.)

Moreover, a persuasive case can be made that government has a legitimate role to play in the interchange of ideas. “Government has legitimate interests in informing, in educating, and in persuading. If government is to secure cooperation in implementing its programs, if it is to be able to maintain a dialogue with its citizens about their needs and the extent to which government can or should meet those needs, government must be able to communicate. An approach that would invalidate all controversial government speech would seriously impair the democratic process.” (Shiffrin, Government Speech (1980) 27 UCLA L.Rev. 565 , 606 [hereafter Shiffrin]; see also Tribe, American Constitutional Law (2d ed. 1988) p. 807 [government can “add its own voice to the many that it must tolerate, provided it does not drown out private communications”]; Miller v. California Com. on Status of Women (1984) 151 Cal.App.3d 693 , 701 [ 198 Cal.Rptr. 877 ] [“If the government cannot address controversial topics it cannot govern.”].)

Even the preeminent critic of unrestricted government speech, University of Texas Professor Mark G. Yudof (see post, at pp. 1264-1265), concedes that “. . . government is sometimes uniquely situated to gather and disseminate particular types of information. And in some governments may be

For example, in California, the Director of the Department of Consumer Affairs is statutorily required to disseminate to the public information concerning “[c]ommercial and trade practices which are detrimental to consumers” (Bus. & Prof. Code, § 335, subd. (b)) and concerning “[g]oods and services which are unsafe, unhealthful or inimical to the general welfare of consumers” (Bus. & Prof. Code, § 335, subd. (c)). In certain situations, the Department of Consumer Affairs might be uniquely situated to acquire such information, yet in carrying out the informing function—e.g., apprising the news media of detrimental trade practices by specific individuals—might invite a defamation lawsuit absent First Amendment protection. Withholding the New York Times standard—i.e., compelling the agency to guarantee the truth of factual assertions—could inhibit the agency’s performance of its informing function, to the ultimate detriment of consumers.

A secondary rationale of the New York Times decision was that because statements by public officials are generally protected by conditional immunity, i.e., absent malice, “[i]t would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.” (New York Times Co. v. Sullivan, supra, 376 U.S. at pp. 282-283 [11 L.Ed.2d at p. 708].) The court characterized its newly created standard as “appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen.” (Id. at p. 282 [11 L.Ed.2d at p. 707], original italics.) This constitutional tit for tat is absent where, as is evidently the case here, the government defendant is not protected by statutory privileges and immunities. Thus, it makes sense to extend the New York Times standard to government defendants in such situations, in order to maintain the balance sought by the Supreme Court in creating that standard.

b. Protection of vulnerable citizens from defamation

On the other hand, in deciding when to apply the New York Times standard, the United States Supreme Court has focused on the relative vulnerability of the plaintiff to injury from defamation. The court has explained that public officials and public figures are not especially vulnerable to defamation by the news media, and thus are less in need of protection (i.e., the New York Times standard applies), because they “usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than

If a plaintiff’s relative vulnerability is a proper focus of First Amendment analysis, it works against application of the New York Times standard to government defendants. This is because government—federal, state, and perhaps to a lesser extent local—possesses a unique advantage over the individual citizen in a war of words. “One need only notice the ready access of government officials to the mass media, the franking privilege, the constant stream of legislative and executive reports and publications, and the massive system of direct grants and indirect subsidies to the communications process (including federal financing of elections) to recognize that speech financed or controlled by government plays an enormous role in the marketplace of ideas.” (Shiffrin, supra, at p. 569, fns. omitted.) Professor Yudof warns, “Expression by government is critical to democratic processes, but the power of governments to communicate is also the power to destroy the underpinnings of government by consent. The power to teach, inform, and lead is also the power to indoctrinate, distort judgment, and perpetuate the current regime.” (Yudof, supra, at p. 42.) To the latter list can be added the power to defame.

The extent of this concern is debatable in light of general post-Watergate skepticism about anything the government has to say. One commentator argues, “Because an enormous quantity of antigovernment communications is available, and because almost no segment of the media seems unwilling to criticize the government when the occasion arises, it is unlikely that government speech has any special persuasive powers by virtue of its governmental origins. On the contrary, antigovernment biases may be so great, particularly with reference to the veracity of political leaders, that much government speech may encounter a public strongly predisposed to disbelief.” (Schauer, Is Government Speech a Problem? (1983) 35 Stan.L.Rev. 373 , 381.) And a similar claim of plaintiff vulnerability could be made as to any “big media” defendant. (See Tribe, American Constitutional Law, supra, (2d ed. 1988) p. 809, fn. 16.)

But while public suspicion of government has certainly increased in the past few decades, we believe that government speech, imbued as it is with

Moreover, if citizens are indeed more vulnerable to government defamation because of the unique power and authority of the state, there may be a special danger that they will refrain from exercising their First Amendment right to criticize government, for fear of retaliatory defamation—with the result that the interchange of ideas is inhibited. This danger, however, is far greater where government is conferred with absolute privilege (see Barr v. Matteo (1959) 360 U.S. 564 , 584-585 [ 3 L.Ed.2d 1434 , 1448-1449, 79 S.Ct. 1335 ] (dis. opn. of Warren, C. J.)) than where, as here, we consider conferring what is in effect a conditional privilege dependent on the absence of constitutional malice. Government will be less likely to retaliate if malicious defamation is actionable than if no defamation is actionable.

c. Impropriety of government invoking First Amendment

There is a third concern here, not implicated in New York Times and its progeny—the notion asserted by Nadel and Denney that the First Amendment does not protect government from its citizens, but only citizens from government.

Simple as this notion appears, it has considerable merit, as well as persuasive defenders. Professor Yudof, a forceful advocate for limiting the extension of First Amendment protections to government speech, has argued, “The First Amendment has been viewed historically as involving limitations on government, not as a source of government rights. Constitutional rights like those embodied in the Bill of Rights have not been extended to government bodies, but only to individuals and groups within the private sector. ... It would be standing the world on its head to think that the extension of First Amendment rights to private sector organizations requires a constitutionalization of government expression in order to counter the distortions brought about by such private institutions.” (Yudof, supra, at pp. 44-45, fns. omitted.) Similarly, Justice Potter Stewart has commented, “The First Amendment protects the press from governmental interference; it confers no analogous protection on the Government.” (Columbia Broadcasting v. Democratic Comm. (1973) 412 U.S. 94 , 139 [ 36 L.Ed.2d 772 , 804-805, 93 S.Ct. 2080 ], original italics (conc. opn. of Stewart, J.).)

The overarching constitutional focus on protecting citizens from abuses of government power, rather than protecting government from its citizens, is a substantial counterbalance against the argument that the First Amendment purpose of assuring unfettered interchange of ideas favors application of First Amendment protections, and hence the New York Times standard, to government speech. In Professor Yudof’s words, “The ‘right to know’ formulation simply obfuscates the problem of how and why governments should have rights against the community under a First Amendment designed to limit government powers.” (Yudof, supra, at p. 47.)

3. Striking a balance

Is there a way out of this constitutional conundrum? Can we strike a balance that accommodates all three of these competing concerns? We believe so.

We begin with the proposition that any potential liability of government for publishing a defamatory statement is itself a check on government abuse of its power to defame. Professor Yudof has himself characterized “laws . . . holding government or its officers liable for defamation” as one source of protection “from overzealousness in government speech.” (Yudof, supra, at p. 188.) Thus, even if the New York Times standard is applied to government speech, governments still face the threat of liability (assuming no privilege or immunity) for defamatory speech that is constitutionally malicious. This threat, though limited in practical application, provides at least a baseline level of protection to a vulnerable citizenry from abuse of government power.

Next, if government has a legitimate role to play in the interchange of ideas—as we conclude it does—then government should have some measure of protection in performing that role, at least as to matters of public interest. Otherwise, if government is compelled to guarantee the truth of its factual

The court also held Hutchinson was not a public figure under the New York Times standard of constitutional malice. (443 U.S. at pp. 133-136 [61 L.Ed.2d at pp. 430-432].) The court said its conclusion that Hutchinson was not a public figure “makes it unnecessary” to decide “whether the New York Times standard can apply to an individual defendant rather than a media defendant.” (Id. at pp. 133-134, fn. 16 [61 L.Ed.2d at p. 430].) Nevertheless, the Court’s careful consideration whether Hutchinson was in fact a public figure suggests that issue was pivotal, and a different result might well have obtained (i.e., no liability for defamation absent malice) had Hutchinson been a public figure.

Professor Yudof believes the decision in Hutchinson “goes a long way toward extending New York Times v. Sullivan to libel and slander by public officials. Thus, certain types of objectionable speech by public officials may lead to damage recoveries by those injured, thereby serving the important function of limiting what government officers may say—particularly as they rely on the prestige of their official positions. On the other hand, ‘vigorous debate on public issues’ is not diminished by the drastic alternative of enjoining government and its officers from speaking out. The accommodation of the needs to promote and to circumscribe government expression reached in Hutchinson is both wise and workable.” (Yudof, supra, at p. 286, fn. omitted.)

In light of the Supreme Court’s express disclaimer of a decision whether New York Times applies to nonmedia defendants, we hesitate to ascribe as much significance to Hutchinson as does Professor Yudof. Nevertheless, we agree that application of the New York Times standard to government speech accommodates the competing needs both to promote and to circumscribe government expression, and is “wise and workable.” (Yudof, supra, at p. 286.)

4. Conclusion

We are acutely mindful of the danger that government may abuse its power to speak. Events of the past few decades have demonstrated that government is quite capable of misleading the public and defaming its citizens. But we also perceive that government has a legitimate role to play in the interchange of ideas. In determining the extent to which government

Denney seems to have been somewhat less prominent in the People’s Park controversy, but she nevertheless thrust herself to its forefront. Like Nadel, she spoke publicly at city council meetings and at political and cultural events. She also invited publicity by participating in a press conference regarding an incident at a demonstration in which she was arrested. The court properly determined that both plaintiffs were limited-purpose public figures.

C. Absence of Constitutional Malice

Likewise, the court correctly ruled that Nadel and Denney failed to produce evidence of constitutional malice.

There was no evidence the defendants knew their statements were false. The four individual defendants each asserted in declarations, without contradiction, that they believed at all times that the statements were true.

Nor was there evidence of reckless disregard of the truth—i.e., that the defendants “in fact entertained serious doubts as to the truth” of their statements. (St. Amant v. Thompson (1968) 390 U.S. 727 , 731 [ 20 L.Ed.2d 262 , 267, 88 S.Ct. 1323 ].) To the contrary, the evidence demonstrated reliance on information from reputable sources, and no reason to doubt the accuracy of that information, which relieves a publisher of any obligation to investigate personally. (Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 259; Church of Scientology Intern. v. Daniels (4th Cir. 1993) 992 F.2d 1329 , 1334.)

The University, in support of its application for a TRO, presented declarations by University employees describing several acts of vandalism and battery by Nadel and Denney, including the following: On August 9, 1991, Denney threw thorn-stemmed roses into the volleyball court sand pit, and tried to kick a volleyball player but missed and kicked a University employee instead. On the weekend of August 10-11, 1991, Nadel and some others ripped down the volleyball nets, causing the nets to graze the face of a University employee. On September 28, 1991, Nadel, Denney and other protestors moved a portable toilet from park premises into a street. And on January 4, 1992, Nadel pushed a University employee who was removing a leaflet Nadel had posted on a lamppost.