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Court of Appeal, First District, Division 3, California.

David MITCHELL and Cathy Mitchell, Petitioners, v. SUPERIOR COURT of the State of California, For the COUNTY OF MARIN, Respondent. The SYNANON CHURCH and Charles E. Dederich, Real Parties in Interest.


Decided: October 27, 1983

Paul Alexander, Robert E. Borton, Pamela A. Mull, Regina A. Stagg, Heller, Ehrman, White & McAuliffe, San Francisco, for petitioners. Philip C. Bourdette, David R. Benjamin, Bourdette, Benjamin & Weill, Badger, for real parties in interest.

This petition challenges a ruling requiring newspersons to divulge confidential sources used to gather information about The Synanon Church (or “Synanon”) and its founder Charles E. Dederich.   Petitioners are David and Cathy Mitchell, former publishers of the Point Reyes Light newspaper.   They are codefendants with Reader's Digest magazine and David MacDonald in a libel suit based upon a 1981 Reader's Digest article, written by MacDonald, about “The Little Paper That Dared.”  The confidential sources sought are not the sources for the Reader's Digest article, but for the various articles and editorials written by the Mitchells for the Point Reyes Light.   We conclude that Synanon and Mr. Dederich have not shown that the identity of those sources goes to the “heart” of the libel action and that the trial court erred in ordering disclosure.

In their complaint, The Synanon Church and Charles E. Dederich allege that they have been libeled and subjected to emotional distress and invasion of privacy by an article published in the July 1981 issue of Reader's Digest.   The complaint alleges that David MacDonald is the author of the article and that the article identified petitioners and Richard Ofshe as sources for the statements made therein.   The five-page article, entitled “The Little Paper that Dared,” sketched the activities leading to award of the Pulitzer Prize for “Meritorious Public Service” to the Point Reyes Light and to citation of petitioners and Richard Ofshe for their “pioneering expose” of Synanon.

In alleging libel, the complaint focuses upon two portions of the article and explains the meaning they transmitted to the readers:  “A.   Synanon was founded in 1958 by Charles Dederich, a reformed alcoholic, to rehabilitate drug addicts.   Though his spectacular claims of success were never proved, Dederich and Synanon attracted wide publicity and enough cash donations to start a string of addiction centers.  (Meaning to readers that plaintiffs have not been and are not successful in rehabilitating drug addicts and other character-disordered persons and that plaintiffs' representations of success were fraudulently made to enrich themselves.)  [¶] B.   Since 1968, minimal drug rehabilitation work had been attempted;  funds, however, were still solicited on that basis.  (Meaning to readers that plaintiffs have not been and are not successful in rehabilitating drug addicts and other character-disordered persons and that plaintiffs' representations of success were fraudulently made to enrich themselves.   And also meaning that Synanon has abandoned its purposes and discontinued efforts in reeducation of character-disordered persons since 1968.)”   The complaint alleges that the defendants “conspired and acted in concert with each other to write, edit and publish to and among each other and to the readers of the article the false, malicious and defamatory words and language contained thereon.”

After filing the complaint, Synanon and Dederich served on petitioners two requests for production of documents, the first listing 27 broad categories of documents and the second specifying over 100 different documents.   Petitioners' responses raised various objections, including the general objection that the requests sought information protected from disclosure by the First Amendment to the United States Constitution.   Real parties Synanon and Dederich moved to compel production.   On November 16, 1982, after hearing, the court ordered petitioner to produce various documents and to identify other documents.

Thereafter petitioners, uncertain whether the court had ruled on the constitutional claim, withheld documents tending to reveal confidential sources and moved the court to clarify its production order.   At a second hearing the court clarified its ruling, finding that a reporter's privilege of the kind mentioned in certain cases as deriving from the First Amendment to the United States Constitution did “not exist in California.”   This petition followed.

 Petitioners contend that the trial court made an error of law when it determined that a newsperson's privilege under the United States or California Constitution did not exist in California.   We agree with petitioners.

Since 1935, California has provided some statutory protection against compulsory disclosure of the sources used by newspersons.  (Witkin, Cal.Evidence (1966) § 890, p. 826.)   In its present form, the statute provides that certain newspersons, including newspaper and magazine reporters and publishers, “cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose ․ the source of any information procured” while acting as a newsperson.  (Evid.Code, § 1070.)   A nearly identical provision has recently been inserted in the California Constitution (art. I, § 2).1  Unfortunately for petitioners, neither of these provisions creates a newsperson's privilege to refuse to disclose sources in a civil libel action.   Both merely provide immunity from contempt;  they do not prevent a court from imposing discovery sanctions against a newsperson who is a party to a civil proceeding.  (KSDO v. Superior Court (1982) 136 Cal.App.3d 375, 383–384, 186 Cal.Rptr. 211;  Witkin, supra, § 891, p. 827.)   However, a privilege of sorts may be derived from the United States Constitution.

It has been said that “[u]ntil June 29, 1972, there was a general feeling among journalists that they had a constitutionally protected right to refuse to disclose the source of a news story or information not intended for publication.”  (Comment, Journalists in the Courts:  Toward Effective Shield Legislation, VIII, U.S.F.L.Rev. 664, 665).   On June 29, 1972, the United States Supreme Court handed down its decision in Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, dispelling that general feeling and leading to uncertainty about whether even a limited form of constitutional protection continued to exist.

Branzburg and its companion cases (Caldwell v. United States and Pappas v. Massachusetts ) all involved reporters called upon to testify before criminal grand juries.   A divided court ruled that the three reporters were required to disclose their sources for sensitive information concerning crime.   Most courts analyzing the Branzburg decision have concluded that while it established that there was no absolute privilege under the First Amendment to refuse to disclose confidential sources to a grand jury, it indicated that a balancing test would be used to determine applicability of the privilege.  (Zerilli v. Smith (D.C.Cir.1981) 656 F.2d 705, 711–714, and cases cited therein;  KSDO v. Superior Court, supra, 136 Cal.App.3d 375, 384–386, 186 Cal.Rptr. 211.   But see Ammerman v. Hubbard Broadcasting, Inc. (Court of Appeal, 1977) 91 N.M. 250, 572 P.2d 1258;  Caldero v. Tribune Publishing Co. (1977) 98 Idaho 288, 562 P.2d 791.)

 In applying the balancing test, a court is to take into account four factors:  (1) the nature of the proceedings—whether civil or criminal;  (2) whether the newsperson is a party, as in a libel action;  (3) whether the information could be obtained from alternative sources;  and (4) whether the sources of their information go to the heart of the lawsuit.  (See Zerilli v. Smith, supra, 656 F.2d 705, 712–714.)   Where, as here, the action is a civil libel action against the newsperson and the information is not available from alternative sources, the focus of the inquiry is upon whether the information goes to the heart of the claim.  (See KSDO v. Superior Court, supra, 136 Cal.App.3d 375, 385–386, 186 Cal.Rptr. 211.)   As explained in KSDO (supra, at p. 386, 186 Cal.Rptr. 211), “[t]he truth or falsity of the material published is the essential issue in a libel case and therefore production of the reporter's notes for identification of his source can be essential to the plaintiff's successful prosecution.   The reliability of the source or the accuracy of the notes is clearly called into focus.   Where the plaintiff is a public figure, the need is especially great for the plaintiff there has to prove actual malice ․ [the fact that the newsperson is a defendant in a civil libel action] would generally tip the scales in favor of disclosure of the material in question.”

After explaining these considerations, the KSDO court nonetheless denied disclosure, finding that plaintiffs had failed to show that the information was unavailable from any other source or that the materials went to the heart of the claim.   Real parties here have also failed to prove that the information they seek goes to the heart of their lawsuit.

Real parties contend that the information they seek is central to their claim because it will provide them with critical evidence concerning malice.   Specifically, they contend that they will learn “[t]he extent to which the petitioners were told, and then ignored, facts contrary to their defamations” and “[t]he extent to which petitioners sought only to find derogatory information against real parties․”  They suggest the possibility that they will learn that petitioners had no sources or that the sources were unreliable.

If the lawsuit against petitioners were based upon libelous writings in the Point Reyes Light or in petitioners' book about their coverage of Synanon, there would be little question that the identity of petitioners' sources and the information received from them would go to the heart of the libel action.   Here, however, the lawsuit is one step removed.   It rests not upon libelous statements written by petitioners, but upon an allegedly libelous report about petitioners' writings.   Petitioners are defendants not as authors or publishers of the libelous statement, but as conspirators with the author and publisher.   While the sources may be at the heart of some other lawsuit, they appear to be located only at the extremities of the present lawsuit.

At the heart of the present lawsuit is the conduct of Reader's Digest and David MacDonald in researching and publishing the article about the Mitchells and Synanon.   Is the Reader's Digest article false in any respect?   Has it damaged the reputation of Synanon or Mr. Dederich?   Was it published with actual malice?

The Mitchells could be found liable for the Reader's Digest article only if they played a responsible part in the publication of the challenged statements.  (Jones v. Calder (1983) 138 Cal.App.3d 128, 134, 187 Cal.Rptr. 825;  McGuire v. Brightman (1978) 79 Cal.App.3d 776, 789, 145 Cal.Rptr. 256.)   The mere allegation of a conspiracy does not establish that a conspiracy existed or that the Mitchells exercised any control over the article or its content.   While the evidence presented to the trial court shows that the Mitchells and Dr. Ofshe were asked or permitted to review the article and make comments before publication, it does not suggest that the Mitchells had any form of veto power over the statements made.   Responsibility for the content of the article apparently rested with Reader's Digest and David MacDonald.   Under the evidence before the trial court, the Mitchells were no more than sources for the article who also reviewed and commented upon it.2

In a declaration submitted to the trial court, real parties asserted that they possessed sufficient evidence of the Mitchells' participation in preparing, writing, and editing the subject article to justify disclosure of the sources.   However, the evidence to which they referred established only that the Mitchells were listed as sources of the information for the article, that they communicated with David MacDonald and his editor, that they provided documents to MacDonald, and that they reviewed the text of the article, making comments on various statements made in it.   Real parties presented no evidence to substantiate their claim that “David Mitchell and Cathy Mitchell materially and substantially contributed to the publication of the article in a manner constituting an extreme departure from the journalistic standards ordinarily adhered to by the responsible press.” 3

The trial court never considered the strength of real parties' showing that the Mitchell's exercised control over the content of the article because under the trial court's view of the law there was no available protection for a newsperson's sources.   Because of the legal error, the court's ruling must be annulled.   To assist the trial court upon reconsideration if the discovery request is renewed, we explain our view that because of First Amendment considerations real parties cannot force disclosure of the Mitchells' sources without a credible showing that the Mitchells either conspired with Reader's Digest to publish maliciously false statements about real parties or exercised some form of control over the content of the article.   By control over content, we mean more than the mere potential any source possesses for convincing an author or publisher to use his or her information.   By conspiracy to defame, we mean an agreement to publish maliciously false statements;  if only the source knows the information is false and only the source acts with malice, no such conspiracy exists.

Let a peremptory writ of prohibition issue, restraining the trial court from enforcing its discovery order insofar as it requires petitioners to reveal their confidential news sources.


1.   The courts, in Farr v. Superior Court (1971) 22 Cal.App.3d 60, 99 Cal.Rptr. 342, and Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 124 Cal.Rptr. 427, held that the statutory “privilege” was subordinate to the criminal defendant's constitutional right to a fair trial.   The constitutional amendment was an apparent attempt to enhance the “privilege.”  (See Note, Reel to Reel:  The Hirsch Case and First Amendment Protection for Film-makers' Confidential Sources of Information, 5 Pepperdine L.Rev. 351, 382, for discussion of the significance of that move.)

2.   We observe that the complaint alleges that the defendants published false words “among each other,” which could lead to the argument that even if the Mitchells did not exert control over the article, they defamed real parties in their communications with Reader's Digest.  (Cf., Stoneking v. Briggs (1967) 254 Cal.App.2d 563, 576–577, 62 Cal.Rptr. 249.)   However, because the substance of the communications has not been identified, this lawsuit cannot be considered a slander or libel action based upon those communications.  (See 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 599, p. 2238.)

3.   A declaration already in the trial court's file in support of Reader's Digest's then-pending motion for summary judgment showed that each Mitchell's relationship with MacDonald and Reader's Digest was essentially that of a source to author and publisher.   The idea for the article was conceived by MacDonald.   After performing some research, he submitted a story outline to Reader's Digest.   Only after the magazine approved did he contact the Mitchells and begin to work with them to obtain information for the story.

WHITE, Presiding Justice.

SCOTT and BARRY–DEAL, JJ., concur. Hearing granted;  BIRD, C.J., did not participate.

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