LIGGETT v. GREGERSON (1989)

OPINION

INTRODUCTION

In this proceeding we are called upon to decide whether information from a television cameraman's happenstance observation of a public accident is protected from disclosure by the newsperson's shield law (Cal. Const., art. I, § 2 and Evid.Code, § 1070) and privilege (Mitchell v. Superior Court (1984) 37 Cal.3d 268, 208 Cal.Rptr. 152, 690 P.2d 625) in a resulting civil action to which he and his employer are not parties.   We conclude such information is beyond the scope of the shield and privilege.   The superior court is directed to vacate its order quashing the cameraman's deposition subpoena.

FACTS AND PROCEEDINGS BELOW

On August 28, 1986, at 5:30 a.m. a load of packaged meat from a Facciola Meat Company truck spilled onto the northbound lanes of Highway 99 in Bakersfield.   Michael Gregerson, a cameraman employed by KERO–TV, was dispatched within a half-hour to film the scene of the accident.   Gregerson observed the clean-up efforts and all of the activities undertaken by the California Highway Patrol (CHP) and Department of Transportation (Caltrans) to control traffic and clean up the spill.

One hour after the accident, Gregerson was filming an interview with a CHP officer at the scene when John Liggett's automobile struck accident debris remaining on the roadway, skidded out of control and flipped over.   Liggett was ejected from the car and seriously injured.   Liggett filed a personal injury suit naming Facciola Meat Company, its owner, and the State of California as defendants.   The state's liability is predicated on alleged negligence of Caltrans and the CHP in removing debris and controlling traffic after the first accident.

KERO–TV voluntarily provided Liggett with a copy of the film it broadcast the evening of the accident.   Liggett subpoenaed Gregerson to give oral testimony at a deposition.   Gregerson and KERO–TV filed a motion to quash the subpoena, asserting an absolute newsperson's privilege.

Liggett challenged the existence of an absolute privilege and asserted the information sought was that of a percipient witness to a public event which was beyond the scope of the shield law and privilege.   Alternatively, he maintained that any protection afforded by the shield law and privilege was waived ¹ by prior disclosure.   In support of his waiver theory, Liggett filed the declaration of his private investigator, Alan Michaels.

Michaels's declaration contained the following undisputed statements:  Michaels was hired to investigate Liggett's accident and he interviewed Gregerson.   Gregerson told Michaels that he was at the scene to film the earlier meat truck accident.   Gregerson described his observations at the time of his arrival and during his entire stay there.   Gregerson described the position of vehicles, the location and activities of personnel, and his opinion regarding the condition of the road.   Gregerson explained to Michaels his own activities immediately preceding Liggett's accident.   Gregerson described the sounds that he heard which drew his attention to Liggett's accident.   Gregerson described “the activity during the accident and subsequent to it, ․”  Gregerson also told Michaels how emergency equipment was used after it was dispatched to Liggett's accident.

The superior court conducted a hearing and thereafter issued its ruling by minute order granting the motion to quash the deposition subpoena.   The court ruled that Gregerson had an absolute privilege from being compelled to disclose his observations of the public accident under the newsperson's shield law contained in article I, section 2 of the California Constitution and Evidence Code section 1070.   The court relied on New York Times Co. v. Superior Court (1988) 202 Cal.App.3d 503, 248 Cal.Rptr. 426 and the dissent in Delaney v. Superior Court (1988) 202 Cal.App.3d 1019, 1030–1032, 249 Cal.Rptr. 60.   The California Supreme Court granted petitions to review both cases on October 27, 1988.   Unless otherwise ordered by the Supreme Court, no opinion superseded by a grant of review can be cited for its precedential value.  (Cal.Rules of Court, rule 976(d) and rule 977(a).)

Liggett filed a petition for a writ of mandate with this court to compel the superior court to vacate its order quashing Gregerson's deposition subpoena.   We issued an order directing respondent to show cause why the requested relief should not be granted.

 Before addressing the substantive issues raised by the parties, we respond to real parties in interest's procedural assertion that review of discovery rulings through the use of extraordinary writs is disfavored.   This assertion is generally true.  (Sav-on Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5, 123 Cal.Rptr. 283, 538 P.2d 739.)   Reviewing routine discovery orders through the writ procedure creates the risk of delaying trials and vexing litigants and trial courts with multiple proceedings.  (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379;  Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 236, 111 Cal.Rptr. 539.)

 However, an exception to the general rule exists when issues of first impression are raised that are of general importance to trial courts and to the profession, and where general guidelines can be used in future cases.   (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.)   This is such a case.

DISCUSSION

DOES THE SCOPE OF THE NEWSPERSON'S SHIELD LAW AND PRIVILEGE ENCOMPASS A TELEVISION CAMERAMAN'S HAPPENSTANCE OBSERVATIONS OF A PUBLIC ACCIDENT?A. The First Amendment of the United States Constitution.

 By 1931, the principle was firmly established that the First Amendment is a fundamental right applicable to the states through the Fourteenth Amendment's due process clause.  (Near v. Minnesota (1931) 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357.) ²  The United States Supreme Court first confronted the issue of whether a reporter had a privilege for confidential sources in Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626.

The Branzburg case was a consolidation of three different cases in which reporters (Branzburg, Pappas and Caldwell) were called to testify before grand juries investigating criminal conduct.  (408 U.S. at pp. 667–678, 92 S.Ct. at pp. 2649–2655.)

Justice White authored the plurality-majority decision in which three other justices concurred.   Justice White acknowledged that news gathering qualified for some First Amendment protection.  (408 U.S. at p. 681, 92 S.Ct. at p. 2656.)   On the other hand, Justice White found that the First Amendment does not guarantee the press a constitutional right of special access to information not generally available to the public.  (408 U.S. at p. 684–685, 92 S.Ct. at p. 2658.)

Justice White found the hindrance of testifying before grand juries too insubstantial and speculative to overcome the paramount public interest in prosecuting crime.  (408 U.S. at p. 695, 92 S.Ct. at p. 2663.)   Although Justice White further found that the Constitution does not allow grand juries to harass the press, he reasoned that judges supervising grand juries would be sufficiently sensitive to the First Amendment to minimize the danger of abuse.  (408 U.S. at pp. 707–708, 92 S.Ct. at pp. 2669–2670.)

In his dissenting opinion, Justice Douglas would have found an absolute immunity absent the reporter's personal involvement in a crime.  (408 U.S. at p. 712, 92 S.Ct. at p. 2686.)

Justice Stewart, writing for himself and two other justices, would have found a qualified privilege, which was all that each reporter originally asserted before the high court.   Justice Stewart would compel a reporter to testify before a grand jury only after the government first demonstrated:  (1) that there was probable cause that the reporter had information clearly relevant to a specific probable violation of law;  (2) that the information could not be obtained through alternative means less obtrusive of First Amendment rights;  and (3) that there was a compelling and overriding interest in the information.  (408 U.S. at p. 743, 92 S.Ct. at p. 2681.)

Thus, four justices believed that there was no reporter's privilege, three believed in a qualified privilege, and one believed in an absolute privilege.   Justice Powell authored the pivotal opinion concurring with Justice White.   Justice Powell maintained that a newsperson who believes that a grand jury investigation is not conducted in good faith could file a motion to quash the grand jury's subpoena.   Justice Powell did not believe that the First Amendment prophylactic rule proposed by Justice Stewart and the reporters would fairly balance society's interest in detecting and prosecuting crime.   He was confident that current procedures were adequate to protect the press.  (408 U.S. at pp. 709–710, 92 S.Ct. at pp. 2670–2671.)

Justice Powell then implied that there may be some form of privilege to be considered on a case-by-case basis:

“The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.   The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”  (Id. at p. 710, 92 S.Ct. at p. 2671, fn. omitted.)

In his dissenting opinion, Justice Stewart characterized Justice Powell's concurring opinion as enigmatic.  (408 U.S. at p. 725, 92 S.Ct. at p. 2671.)   In a later address before the Yale Law School, Justice Stewart suggested that the Branzburg court rejected reporters' claims of constitutional privilege not to disclose the identity of confidential sources to a grand jury by a five-to-four vote “․ or, considering Mr. Justice Powell's concurring opinion, perhaps by a vote of four and a half to four and a half.”  (Stewart, Or of the Press (1975) 26 Hastings L.J. 631, 635.)

Concurring in Zurcher v. Stanford Daily (1978) 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525, Justice Powell illuminated his cryptic Branzburg concurrence as follows:

“The concurring opinion in Branzburg v. Hayes, 408 U.S. 665, 709–710 [, 92 S.Ct. 2646, 2670–2671, 33 L.Ed.2d 626] (1972) (POWELL, J.), does not support the view that the Fourth Amendment contains an implied exception for the press, through the operation of the First Amendment.   That opinion noted only that in considering a motion to quash a subpoena directed to a newsman, the court should balance the competing values of a free press and the societal interest in detecting and prosecuting crime.   The concurrence expressed no doubt as to the applicability of the subpoena procedure to members of the press.   Rather than advocating the creation of a special procedural exception for the press, it approved recognition of First Amendment concerns within the applicable procedure.   The concurring opinion may, however, properly be read as supporting the view expressed in the text above, and in the Court's opinion, that under the warrant requirement of the Fourth Amendment, the magistrate should consider the values of a free press as well as the societal interest in enforcing the criminal laws.”  (Id. 436 U.S. at pp. 570–571, fn. 3, 98 S.Ct. at 1984, fn. 3.)

Zurcher held that the First Amendment did not require police officers seeking evidence of criminal conduct to obtain a subpoena duces tecum after a noticed hearing instead of a search warrant.  (436 U.S. at pp. 560–563, 98 S.Ct. at pp. 1978–1980.)

In Herbert v. Lando (1979) 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115, the court held that the journalist's thoughts about information he gathers in his conversations with editorial colleagues is not immune from discovery in libel actions brought by public figures.   Reasoning that the actual malice standard of proof for public figures set forth in New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 requires focus on the defendant's state of mind, the court in Lando found that even a qualified privilege for editorial processes would intolerably interfere with the public figure's ability to prosecute a lawsuit.  (441 U.S. at pp. 170–172, 99 S.Ct. at pp. 1645–1646.)

The existence of a newsperson's privilege under the First Amendment is, at best, problematic.   It is fair to say that Justice Powell and four other justices were sensitive to the special standing of the press in our society.   Justice Stewart has stated that the primary purpose of the constitutional guarantee of a free press was to create a fourth institution outside the government as an additional check to the three official branches of government.  (Stewart, Or of the Press, supra, 26 Hastings L.J. at p. 634.)

Even if Justice Powell's concurrence in Branzburg can be interpreted as recognizing a First Amendment newsperson's privilege for confidential sources, there are no special First Amendment procedural safeguards beyond traditional judicial proceedings for protecting the privilege.   One prominent constitutional scholar represents that Branzburg, Zurcher and Lando effectively reject any concept of a First Amendment reporter's privilege for confidential sources.  (Tribe, American Constitutional Law (2d ed. 1988) § 12–22, p. 976.)   We agree with Professor Tribe's assessment and conclude that the First Amendment does not shield Gregerson from disclosing information based on a happenstance observation of an accident occurring in public.

Analysis of this issue does not end, however, with the First Amendment.   In Branzburg, Justice White invited the Congress and the state Legislatures to create statutory reporter's privileges.  (408 U.S. at p. 706, 92 S.Ct. at p. 2669.)

Justice White's invitation has been taken seriously.   Twenty-six states have enacted shield laws providing reporters with either an absolute or a qualified privilege from divulging information received in confidence.   The courts of 10 other states have recognized a reporter's privilege derived from either the common law or the state Constitution.   Although the Congress has not enacted a federal shield law, it has passed legislation protecting against newsroom searches.   Department of Justice regulations also acknowledge a qualified reporter's privilege as a matter of prosecutorial policy.  (Tribe, American Constitutional Law, supra, § 12–22, pp. 974–976.)

B. California's Shield Law and Privilege.

 Although California has had a statutory shield law for 54 years, there were a paucity of reported cases interpreting it for the first 35 years.   To clarify development of the newsperson's shield law, our discussion is divided into statutory and constitutional analyses.

(1) Statutory Immunity From Contempt.

Effective September 15, 1935, California's first shield statute was incorporated into Code of Civil Procedure section 1881.   It provided:

“6. A publisher, editor, reporter, or other person connected with or employed upon a newspaper can not be adjudged in contempt by a court, the Legislature, or any administrative body, for refusing to disclose the source of any information procured for publication and published in a newspaper.”   (Stats.1935, ch. 532, § 1, p. 1610.)

Although Code of Civil Procedure section 1881 was amended and revised, the shield law remained unaltered until the early 1960's.  (Stats.1939, ch. 129, § 5, p. 1248;  Stats.1957, ch. 1961, § 1, p. 3505.)   In 1961, the Legislature amended section 1881 to expand the shield to protect radio and television news reporters and employees from contempt proceedings for refusing to disclose their sources of information.  (Stats.1961, ch. 629, § 1, p. 1798.)   The shield statute was finally codified in 1965 into the modern Evidence Code as section 1070.  (Stats.1965, ch. 299, § 2, p. 1335.)

The shield statute underwent further amendments in 1971 and 1972.   (Stats.1971, ch. 1717, § 1, p. 3658;  Stats.1972, ch. 1431, § 1, p. 3126.)   In 1974, California responded to Justice White's invitation in Branzburg by amending Evidence Code section 1070 to its present form.

“(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, 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, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

“(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

“(c) As used in this section, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.”  (Stats.1974, ch. 1323, § 2, pp. 2877–2878;  emphasis added.)

An examination of the 1974 amendment's legislative history is critical in determining whether the information sought from Gregerson is within the scope of the statutory shield.

The 1974 amendment (Sen. Bill No. 1858) was authored by Senator Al Song, who served as chairperson of the Senate Committee on the Judiciary.   The committee's analysis of the amendment provides, in pertinent part:

“Purpose [¶] Protect those in the communications industry from being required by law to reveal unpublished information which was obtained in gathering information for the public, in order to keep open the sources of that information.”  (Emphasis added.)  “COMMENT [¶] ․ [¶] 2. The problem that gives rise to this legislation is that, in the course of gathering information for dissemination to the public, reporters (and any of the other persons listed in Section 1070 of the Evidence Code) often are given information by individuals purely as background information to aid the reporter's understanding of the subject.   In addition, investigative reporters who conduct detailed research and investigations into a subject generally use only a fraction of what they learn in an actual publication.   It is this background information and the sources of it which are presently unprotected.  [¶] This bill seeks to protect this ‘background’ or unpublished information obtained or prepared in gathering, receiving or processing information for communication to the public.”  (Original italics.)

“A fundamental rule of statutory construction is to ascertain the intent of the Legislature, based on an examination of the legislative history and the statutory context of the enactment under scrutiny so as to effectuate the purpose of the law.  [Citations.]”  Chong v. Fremont Indemnity Co. (1988) 202 Cal.App.3d 1097, 1101, 249 Cal.Rptr. 264.   We have found little other useful information in our survey of the legislative history, and the information provided by the parties is not any more illuminating.³  We conclude from our examination of the legislative history of Evidence Code section 1070 that the underlying purpose of the 1974 amendment and its use of “unpublished information” was to strengthen protection of confidential sources and information from such sources.

Notwithstanding the shield contained in Evidence Code section 1070, appellate decisions held that a trial court under certain circumstances had the inherent authority through its contempt power to compel a reporter to disclose confidential source information.  (Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 124 Cal.Rptr. 427;  Farr v. Superior Court (1971) 22 Cal.App.3d 60, 99 Cal.Rptr. 342.)

In Rosato, reporters for The Fresno Bee obtained and published copies of a grand jury indictment of a Fresno city councilman, a Fresno city planning commissioner and a land developer that had been sealed by a superior court protective order.   For their failure to answer all questions put to them concerning the source of their information, four newsmen were cited for contempt of court for each question they refused to answer.  (51 Cal.App.3d at pp. 199–205, 124 Cal.Rptr. 427.)

This court held that the shield statute did not immunize reporters from contempt imposed for refusing to answer questions aimed at identifying attorneys who may have violated the trial court's protective order.  (51 Cal.App.3d at pp. 220–222, 124 Cal.Rptr. 427.)

(2) Constitutional Immunity From Contempt.

In 1980, voters passed Proposition 5 which incorporated Evidence Code section 1070 into article I, section 2, subdivision (b) of the California Constitution, which states:

“(b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

“Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

“As used in this subdivision, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.”

Proposition 5 was passed by a 73.3 percent majority.  (Kevane, The Newsgatherer's Shield—Why Waste Space in the California Constitution?  (1985) 15 Sw.U.L.Rev. 527, fn. 1.)   Ballot arguments in voter pamphlets are an aid to construing constitutional amendments adopted pursuant to the popular vote.   (White v. Davis (1975) 13 Cal.3d 757, 775, fn. 11, 120 Cal.Rptr. 94, 533 P.2d 222.)

The ballot argument in favor of Proposition 5 (no argument was submitted against it) was predicated on the public's right to information which is enhanced by protecting the confidentiality of a reporter's news sources.   The entire ballot argument provided:

“The free flow of information to the public is one of the fundamental cornerstones assuring freedom in America.   Guarantees must be provided so that information to the people is not inhibited.   However, that flow is currently being threatened by actions of some members of the California Judiciary.   They have created exceptions to the current Newsman's Shield Law, which protects the confidentiality of reporters' news sources.   And the use of confidential sources is critical to the gathering of news.   Unfortunately, if this right is not protected, the real losers will be all Californians who rely on the unrestrained dissemination of information by the news media.

“This amendment merely places into the state's Constitution protection already afforded journalists by statute.   That law, enacted in 1935, in clear and straightforward language, provides that reporters cannot be held in contempt of court for refusing to reveal confidential sources of information.   At least six reporters in California in recent years have spent time in jail rather than disclose their sources to a judge.   By giving existing law constitutional status, judges will have to give the protection greater weight before attempting to compel reporters to breach their pledges of confidentiality.

“A reporter's job, of course, is not to withhold information, but to convey it to the public.   In most cases, a reporter is able to reveal corruption and malfeasance within government only with the help of an honest employee.   If such an individual feels that a reporter's pledge of confidentiality may be broken under the threat of jail, that person simply will not come forward with his or her information.

“If our democratic form of government—of the people, by the people, for the people—is to survive, citizens must be informed.   A free press protects our basic liberties by serving as the watchdogs of our nation.   Citizens may agree or disagree with reports in the media, but they have been informed, and the final choice is made by the individual.

“To jail a journalist because he protected his source is an assault not only on the press but on all Californians as well.”  (Italics omitted and supplied.)

The Legislative Analyst's summary provided, in pertinent part:

“Background:

“Since 1935, laws enacted by the California Legislature have protected the confidential information sources of persons employed by or connected with the news media.   The law provides that such persons may not be held in contempt by a judicial, legislative, administrative body or other body having the power to issue subpoenas for refusing to (1) disclose the source of any information obtained by them for publication, or (2) reveal any unpublished information obtained in the preparation of a news story.

“In recent years, California courts have held these laws conflict with a court's authority under the California Constitution to protect its own processes and its duty arising under the Federal Constitution to conduct a fair trial.

“In addition, the United States Supreme Court held in 1972 that the Federal Constitution's guarantee of freedom of the press does not give a newsperson the right to refuse to appear before a grand jury and testify about relevant information he or she has obtained, even though, in so doing, confidential sources may be divulged.   The court recognized, however, that there was merit in allowing legislatures to set their own standards with respect to the relations between law enforcement officials and the press in their own states.

“Proposal:

“This measure would place in the California Constitution provisions of existing law enacted by the Legislature to protect news sources, thereby granting a state constitutional protection for these rights.”  (Emphasis added.)

The purpose of adding the shield law to the Constitution was ostensibly to trump the reasoning of Rosato and Farr and to further insulate the shield law from judicial tampering.  (Kevane, Newsgatherer's Shield—Why Waste Space in the California Constitution?, supra, 15 Sw.U.L.Rev. 527, 545–548, 572–573.)   This interpretation is in accord with the ballot argument supporting Proposition 5 in the voter's pamphlet.

The first reported case to confront the shield law in its constitutional form was KSDO v. Superior Court (1982) 136 Cal.App.3d 375, 186 Cal.Rptr. 211.   The KSDO case was a civil defamation suit initiated by members of the Riverside Police Department in response to a news report that they were involved in drug smuggling.   During a deposition of the KSDO reporter who investigated the story, sources of information were disclosed by the reporter.   The plaintiffs brought a discovery motion to compel production of the reporter's notes of his conversations with particular sources.   The defendants asserted a privilege pursuant to the shield law in both its constitutional and statutory forms.  (136 Cal.App.3d at pp. 377–379, 186 Cal.Rptr. 211.)

The KSDO court found that the shield law provided an immunity from contempt, not a privilege against disclosure of the requested information especially where the defendants had not been threatened with contempt.  (136 Cal.App.3d at pp. 383–384, 186 Cal.Rptr. 211.)   The KSDO court further found that in a libel suit, the scale was balanced toward disclosure where the truth or falsity of the material published is the essential issue in the libel case and fairness may require production of the reporter's notes or production of source material.  (Id. at pp. 385–386, 186 Cal.Rptr. 211.)

The KSDO court, however, found that there had been no showing by the plaintiffs that the information they sought was unavailable from any other source or that the materials were directed to the heart of the petition's claim.   Because the reporter had revealed the identity of his sources, the KSDO court found that the plaintiffs were free to test source reliability independent of the reporter's notes.   It then held that the reporter had a qualified First Amendment privilege and issued a writ of mandate directing the trial court to annul its order requiring defendants to produce the reporter's notes.  (136 Cal.App.3d at p. 386, 186 Cal.Rptr. 211.)

In Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 201 Cal.Rptr. 207, Playboy magazine had published an article concerning a lawsuit brought by the Cheech and Chong comedy team against their business managers and accountants.   Playboy Enterprises, Inc. was not a party to the lawsuit.   The defendants to the lawsuit served Playboy with a subpoena duces tecum for notes, tapes and records of the interview conducted of the plaintiffs.   The trial court ordered discovery.  (154 Cal.App.3d at pp. 17–19, 201 Cal.Rptr. 207.)

The Court of Appeal in Playboy found that the subpoenaed materials clearly fell within the scope of both article I, section 2 of the California Constitution and Evidence Code section 1070.  (154 Cal.App.3d at pp. 20–24, 201 Cal.Rptr. 207.)  Playboy then analyzed the issue of whether shield law protection must yield to the competing interests of civil litigants seeking discovery from a nonparty.  (Id. at p. 24, 201 Cal.Rptr. 207.)

Playboy concluded that civil litigants do not have a constitutional right to unrestricted discovery of protected information, finding that the sole codification of a civil litigant's right to discovery came from the Code of Civil Procedure.  Playboy found, however, that there was a general, uncodified state interest in facilitating truth-finding and in the just resolution of lawsuits, citing Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657–658, 125 Cal.Rptr. 553, 542 P.2d 977.  (154 Cal.App.3d at p. 25, 201 Cal.Rptr. 207.)

Playboy criticized the KSDO decision for announcing a test for balancing the newsperson's right for protection under the shield law with the civil litigant's right to discovery.  (154 Cal.App.3d at p. 27, 201 Cal.Rptr. 207.)  Playboy found that the general common law concept of ascertainment of truth in civil litigation did not overcome the codification of a specific, facially unqualified state constitutional protection.  Playboy then found that the state constitution was the paramount law of the state when it speaks plainly on a matter as it does with the shield law.  (Id. at p. 28, 201 Cal.Rptr. 207;  see also People v. Parks (1881) 58 Cal. 624, 635;  Ex Parte Braun (1903) 141 Cal. 204, 211, 74 P. 780;  Dye v. Council of the City of Compton (1947) 80 Cal.App.2d 486, 490, 182 P.2d 623.)  Playboy granted the writ of mandate directing the trial court to vacate its discovery order.  (154 Cal.App.3d at p. 29, 201 Cal.Rptr. 207.)

(3) Constitutional Qualified Privilege.

Against this background, the California Supreme Court issued its unanimous decision in Mitchell v. Superior Court (1984) 37 Cal.3d 268, 208 Cal.Rptr. 152, 690 P.2d 625.   Charles Dederich and The Synanon Church brought a defamation action against the Mitchells who had written articles and a book claiming that Synanon was a fraud.   Synanon sought all documents available to the Mitchells prior to the publication of an article in Reader's Digest to prove that the Mitchells selectively relied on some documentary evidence and ignored other evidence more favorable to Synanon.   The superior court ordered the Mitchells to identify documents and to produce all documents described under specific terms of the first request to produce.  (Id. at pp. 272–273, 208 Cal.Rptr. 152, 690 P.2d 625.)

The Mitchell court noted that the shield afforded newspersons under article I, section 2, subdivision (b) of the California Constitution and Evidence Code section 1070 is simply immunity from contempt and that a newsperson who is a party to litigation is subject to a variety of other sanctions for disobeying an order to disclose evidence, including entry of adverse judgment.   After noting that a statutory or common law newspersons' privilege did not exist in California, the Supreme Court thereupon created a qualified newsperson's privilege “based on the broad protections for freedom of the press enshrined in the United States Constitution and the correlative provision (art. I, § 2, subd. (a)) [⁴ ] of the California Constitution.  [Fn. omitted.]”  (37 Cal.3d at p. 274, 208 Cal.Rptr. 152, 690 P.2d 625.)

“We conclude that in a civil action a reporter, editor, or publisher has a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources.   The scope of that privilege in each particular case will depend upon the consideration and weighing of a number of interrelated factors.”  (37 Cal.3d at p. 279, 208 Cal.Rptr. 152, 690 P.2d 625.)

The policy reasons underlying the Mitchell court's decision creating a qualified newspersons' privilege (as opposed to an absolute privilege), to be applied by balancing the competing interests on a case-by-case basis, was clearly set forth.

“We cannot ignore or subordinate the First Amendment values furthered by the protection of confidential sources and information;  at the same time, we must recognize the parallel importance of the policy favoring full disclosure of relevant evidence.   When called upon to weigh the fundamental values arguing both for and against compelled disclosure, the overwhelming majority of courts have concluded that the question of a reporter's privilege in civil cases must be decided on a case-by-case basis, with the trial court examining and balancing the asserted interests in light of the facts of the case before it.   Thus, the courts conclude, there is neither an absolute duty to disclose nor an absolute privilege to withhold, but instead a qualified privilege against compelled disclosure which depends on the facts of each particular case.   [Citations.]”  (37 Cal.3d at p. 276, 208 Cal.Rptr. 152, 690 P.2d 625.)

The Supreme Court held that the scope of the qualified privilege to not disclose confidential sources and unpublished information from such sources will depend upon the consideration and weighing of factors such as, (1) the nature of the litigation and whether the reporter is a party;  (2) the relevance of the information sought to plaintiff's cause of action;  (3) the plaintiff's efforts to exhaust alternative sources of obtaining the needed information;  and (4) the importance of protecting confidentiality in the case at hand.  (37 Cal.3d at pp. 279–283, 208 Cal.Rptr. 152, 690 P.2d 625.)

After considering and balancing the various factors, the court then issued a peremptory writ of prohibition restraining the superior court from enforcing its original discovery order.   In an interesting footnote, the court noted that:

“This decision is without prejudice to the right of real parties in interest to file a new motion to compel production of documents which reveal confidential sources or information furnished by such sources, based upon a showing sufficient to overcome the qualified privilege described in this opinion.”  (37 Cal.3d at p. 284, fn. 11, 208 Cal.Rptr. 152, 690 P.2d 625.)

Real parties in interest would have us extend the scope of the newsperson's qualified privilege created by Mitchell to an absolute privilege encompassing all information observed by a newsperson without regard to whether it is related to confidential sources or information from such sources.   We decline the invitation to do so.

Mitchell's qualified privilege is properly grounded on the public's need to be informed by a media with the freedom to gather and communicate news.   Compelling a newsperson to disclose the identity of a confidential source or unpublished information from such a source would seriously undermine and interfere with the news gathering function.   This underlying reason for creating the shield law and privilege simply does not exist in the instant case where the information sought was observed by happenstance in public, is not from a confidential source, and is not even the work product of the cameraman.

We conclude that Gregerson's observations are beyond the scope of the qualified constitutional privilege created by Mitchell.

(4) Constitutional Limitation Regarding Privileges and Immunities.

While Gregerson's compelled deposition testimony may involve some minor inconvenience and expense to real parties in interest, it pales by comparison to the detriment Liggett and other parties to litigation would suffer if essential percipient witnesses to public events were privileged not to provide evidence simply because of their professions.  “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”  (Cal. Const., art. I, § 7, subd. (b).)

This provision of the Constitution was derived from article I, section 21 of the California Constitution.  (8 Witkin, Summary of Cal.Law (9th ed. 1988) Constitutional Law, § 603, p. 57.)   In analyzing this provision, California courts have drawn analogy and guidance from the Fourteenth Amendment of the United States Constitution.  (Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 305, 221 Cal.Rptr. 746.)

This principle of equal protection does not absolutely preclude the state from drawing distinctions between different classes of groups or individuals.   It requires that people similarly situated receive like treatment.   The classification must be reasonable and not arbitrary.   (Brown v. Merlo (1973) 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.)   The classification must rationally justify diversity in the legislation.  (Darcy v. Mayor, etc., of San Jose (1894) 104 Cal. 642, 645–646, 38 P. 500;  McGlothen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1025, 140 Cal.Rptr. 168.)

There is a rational justification to protect newspersons' confidential sources and information from such sources under the shield law and privilege.   That justification is the public's right to news and information which is promoted by the trust and confidence newspersons have with their sources.   That justification does not apply to the general public.   Classifying the shield law and privilege for the benefit of newspersons is not arbitrary if their scope is limited to the protection of confidential sources and information from such sources.

The shield law and the newsperson's privilege were not intended to protect newspersons from the obligations all citizens bear to comply with lawful process where observations were made of public events by mere happenstance, as occurred here.   To extend the shield law and the newsperson's privilege to the extent advocated by real parties in interest would create an absolute privilege and immunity without the justifications necessary.

A judicially mandated rule creating for newspersons an absolute privilege and immunity from testifying to happenstance observations of public events would be an arbitrary and irrational classification in violation of article I, section 7, subdivision (b) of the California Constitution.

DISPOSITION

Petitioner is entitled to appropriate relief.  (Code Civ.Proc., § 1085;  Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 261–266, 83 Cal.Rptr. 237.)   A peremptory writ of mandate is proper and should issue.   (Code Civ.Proc., § 1088;  Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165;  Palma v. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–182, 203 Cal.Rptr. 626, 681 P.2d 893.)

Let a peremptory writ of mandate issue directing the Kern County Superior Court to vacate its order of October 27, 1988, granting real parties in interest's motion to quash the deposition subpoena served on Michael Gregerson, and enter a new and different order denying said motion.

Petitioner is awarded costs on appeal from real parties in interest.

FOOTNOTES

1.   Having concluded that the information sought is outside the scope of the shield and privilege, we do not address the waiver issue.

2.   The United States Supreme Court first recognized in dictum that the First Amendment applied to the states through the Fourteenth Amendment due process clause six years earlier in Gitlow v. New York (1925) 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138.

3.   The analysis of the Assembly Committee on the Judiciary is more supportive of real parties in interest's position, but raises concerns regarding the amendment's constitutionality.

4.   This subdivision of the California Constitution provides:“(a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.   A law may not restrain or abridge liberty of speech or press.”

BAXTER, Associate Justice.

BEST, Acting P.J., and STONE, J., concur.