FORSHER v. BUGLIOSI (1979)

In an action for libel and invasion of privacy against respondents who wrote, published, distributed, and sold a book in which appellant was mentioned, appellant appeals from a judgment of dismissal after the sustaining of a demurrer to appellant's first amended complaint, without leave to amend.

Appellant James Forsher is a 22-year-old community mental health worker residing in Oakland, California.¹ Respondent Bugliosi is a member of the State Bar of California. At the time of the Manson trials, he was a deputy district attorney in the Los Angeles District Attorney's Office, and was the prosecutor in the trials of the Tate-LaBianca murder defendants. Respondent Gentry is a professional writer. Respondents W. W. Norton & Co., Inc., and Bantam Books, Inc., are corporations primarily engaged in editing, distributing, publishing, and selling books.

Within a year immediately preceding the filing of the plaintiff's complaint, the defendants caused to be published and distributed and sold to the general public the book Helter Skelter. Certain portions of Helter Skelter Concerned appellant's connection with attorney Ronald Hughes. Hughes represented Leslie Van Houton, one of the defendants in the Manson murder trial, who disappeared during the course of the trial and was subsequently found dead. Appellant has alleged that the passages that mention appellant directly are, considered in the context of the entire book, libelous. Appellant also alleged an invasion of privacy based solely on the publication of his true name and identity in connection with Helter Skelter's Description of the circumstances and events surrounding the disappearance and subsequent discovery of the death of Hughes.

1. The Libel

In California under Civil Code section 45a,² special damages must be pleaded in a libel action unless the statements asserted as the basis of the cause of action are libelous on their face. In the present case, appellant failed to plead special damages. The question on appeal is whether the complaint stated a cause of action for libel on its face.

Respondents contend that appellant has had to use innuendo in pleading his cause of action for libel, and that therefore there is no cause of action for libel on its face. However, the explanations appellant included in his complaint are inserted for two purposes, neither of which constitutes innuendo: first, to explain the context of the passages which name appellant, and second, to point out the defamatory implication of the passages. The statements complained of were made in the second half of a book, in excess of 600 pages, after the major theme of the book, police incompetence, had been thoroughly developed. The explanations would not be necessary for one who had read the entire book.

In this case, the passages which refer to appellant may be libelous because they insinuate that appellant may have been involved in the alleged murder of Hughes. A defendant in a libel suit is liable for what is insinuated as well as for what is stated explicitly. (Mullins v. Thieriot (1971) 19 Cal.App.3d 302, 304, 97 Cal.Rptr. 27; Kapellas v. Kofman (1969) 1 Cal.3d 20, 33, 81 Cal.Rptr. 360, 459 P.2d 912.) A statement in the form of an implication may be libel on its face even though it may also be susceptible of an innocent interpretation. (MacLeod v. Tribune Publishing Co. (1959), 52 Cal.2d 536, 343 P.2d 36.) And although appellant admits that no single statement in Helter Skelter Can be held to be libelous by itself, “false inferences or implications raised by the arrangement and phrasing of apparently non-libelous statements can be as injurious as explicit epithets.” (Kapellas v. Kofman, Supra, 1 Cal.3d 20, 33, 81 Cal.Rptr. 360, 367-368, 159 P.2d 912, 919-920.) An explanation of the theme of the book and its characters is quite proper under the circumstances, for “words which alone are innocent may in their context clearly be capable of a defamatory meaning and may be so understood. The context of a defamatory imputation includes all parts of the communication that are ordinarily heard or read with it.” (Res., 2d Torts, s 563, com. d, p. 163.) In the case of a book, the context must be the book in its entirety. (See Eldredge, The Law of Defamation, ch. 2, s 9, p. 48; Res., Op.cit. supra.)

Where the plaintiff's explanation is confined solely to pointing out the defamatory implication of a passage, without reference to facts or circumstances Extrinsic to the communication and without attempting to construe words in other than their ordinary sense, it does not follow that he has failed to state a cause of action for libel on its face because the complained of language is also susceptible of a non-defamatory construction. If the defamatory meaning could reasonably be seen and understood by a reader of the entire communication of which the language forms a part, then pointing out the defamatory meaning does not destroy the plaintiff's claim of libel on its face: the explanation is essentially surplusage. If, on the other hand, the interpretation of the communication is so farfetched that the court concludes that no reader could reasonably see that meaning or, if the reader must have knowledge of facts or circumstances Outside the publication in order to draw a defamatory inference, then the plaintiff has stated no cause of action for libel on its face, and sustaining the demurrer without leave to amend would be proper. (Mellen v. Times-Mirror Co. (1914) 167 Cal. 587, 593, 140 P. 277; Cameron v. Wernick (1967) 251 Cal.App.2d 890, 893, 60 Cal.Rptr. 102; Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 46 Cal.Rptr. 135.)

Since, in our view, the communication could reasonably be seen to be defamatory, the court erred in sustaining the demurrer.

2. The Invasion of the Right of Privacy

The appeal also raises the question of whether the complaint states a cause of action for invasion of privacy. Appellant does not attempt to present a claim of “false light” invasion of privacy. Appellant concedes that the publication of the facts surrounding the disappearance and subsequently-discovered death of Hughes was newsworthy and, therefore, constitutionally protected. His claim is based solely on the publication of his true name and identity in connection with these facts. Respondents argue that the publication of the name is constitutionally privileged under Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328. Appellant relies upon Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34.

In Briscoe plaintiff, a rehabilitated felon, sued when, 11 years after he had hijacked a truck, the defendant Reader's Digest published an article on truck hijacking; the article contained a sentence which mentioned plaintiff's name and detailed the facts of his crime. Plaintiff alleged publication of the facts of the crime and his identity as perpetrator caused his new family and friends to become aware of his unsavory past and, consequently, to scorn and abandon him, exposing him to contempt and ridicule. On appeal from judgment of dismissal after defendant's demurrer had been sustained, the Supreme Court held plaintiff had stated a cause of action for invasion of privacy. The court drew a distinction between publication of facts about recent crimes and those concerning crimes long past. Because of the important social interests served by publication of recent events, truthful reports of recent crimes and the names of suspects or offenders were held to be generally protected by the First Amendment. In the case of long past crimes, however, a distinction was drawn between the facts of the crime and the identity of the actor. Facts of long past crimes generally retain their newsworthy (and hence protected) character, the court held for largely the same reasons that publications of current crimes and suspects' identities are deemed newsworthy. In contrast, however, “identification of the Actor in reports of long past crimes usually serves little independent public purpose. Once legal proceedings have terminated, and a suspect or offender has been released, identification of the individual will not usually aid the administration of justice. Identification will no longer serve to bring forth witnesses or obtain succor for victims. Unless the individual has reattracted the public eye to himself in some independent fashion, the only public ‘interest’ that would usually be served is that of curiosity.” (4 Cal.3d at p. 537, 93 Cal.Rptr. at p. 872, 483 P.2d at p. 40.)

The court in Cox, in addressing itself to the conflict between the right of free press and the right of privacy, applied different grounds in its balancing of these conflicting rights. That was an action for invasion of privacy based on the defendant's publication of the name of a deceased rape victim who was plaintiff's daughter. A Georgia statute prohibited the publication of the name or identity of a rape victim, although the name could be obtained from the court records. The Georgia Supreme Court had found a cause of action, based in part on the balancing test of Briscoe. The Supreme Court reversed, holding the Georgia statute in conflict with the freedom of the press guaranteed by the First Amendment. The court noted that “(g)reat responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, . . .” (420 U.S. at pp. 491-492, 95 S.Ct. at p. 1044.) The basis for the court's holding was: “Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.” (420 U.S. at p. 495, 95 S.Ct. at p. 1046.)

The court in Cox limited its finding on the narrow question of the publication of information obtained from “judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.” (420 U.S. at p. 491, 95 S.Ct. at p. 1044.)

And in Sheppard v. Maxwell (1966) 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, the court emphasized the important role of the press in aggressively investigating all aspects of the judicial process: “A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” (384 U.S. at p. 350, 86 S.Ct. at p. 1515.) It is respondents' contention that Cox has impliedly overruled Briscoe.

The court in Briscoe based the existence of a First Amendment right on whether the published report concerned a recently committed crime or one committed long ago. The more recent the crime, the more likely the privilege to publish the identity of the actors. The court in Cox based the existence of the privilege on whether there existed public documents which identified the actors. The court in Briscoe was balancing the interests of the freedom of free press and the right to privacy. The court in Cox was balancing the same interests. Briscoe and Cox are not necessarily in conflict. Rather, they may be conceived as creating a continuum, and depending upon where in the continuum the facts fall, either the public interest First Amendment or the right of privacy will prevail.

Consider the following situations: (1) a contemporaneous report of a crime where the identity of the actors is placed on the public record; (2) a report of a crime of long ago where the identity of the actors was placed on the public record; (3) a contemporaneous report of a crime where the identity of the actors was not placed on the public record; and (4) a report of a crime of long ago where the identity of the actors was not placed on the public record.

(1)

The first situation is similar to the facts of Cox. The report that was published concerned a contemporaneous crime³ where the identity of the victim was disclosed in the indictment on the public record in that case. It is during the investigation, prosecution, and incarceration of individuals that miscarriages of justice can occur. The preventive effects of the press are the strongest during these phases of the criminal justice system. Cox, by its holding, decided that this type of report is clearly privileged. Briscoe, in dictum, agreed: “Particularly deserving of First Amendment protection are reports of ‘hot news,’ items of possible immediate public concern or interest. The need for constitutional protection is much greater under these circumstances, where deadlines must be met and quick decisions made, than in cases where more considered editorial judgments are possible. (Citation.)” (Fn. omitted.) (4 Cal.3d at p. 535, 93 Cal.Rptr. at p. 870, 483 P.2d at p. 38.) Clearly, reports under these circumstances are privileged.

(2)

The second situation is similar to the facts of Briscoe. The identity of the plaintiff was in the public records concerning his trial, but the crime had occurred 11 years before. (See Conklin v. Sloss (1978) 86 Cal.App.3d 241, 150 Cal.Rptr. 121 (where report concerned crime which occurred 20 years before publication).) The court in Cox gives us no guidance in this situation: the publication in that case was about a contemporaneous crime, and the court made no comments regarding the effects of the passage of long periods of time. Briscoe, however, does concern this type of situation and does give us guidance. “(J)ust as the risk of exposure is a concomitant of urban life, so too is the expectation of anonymity regained. It would be a crass legal fiction to assert that a matter once public never becomes private again.” (Fn. omitted.) (4 Cal.3d at pp. 539-540, 93 Cal.Rptr. at p. 873, 483 P.2d at p. 41.) After noting initially that contemporaneous reports of crime are privileged communications, the court in Briscoe stated that there was “no doubt that reports of the Facts of past crimes are newsworthy” (emphasis added), but added that “identification of the Actor in reports of long past crimes usually serves little independent public purpose.” (4 Cal.3d at p. 537, 93 Cal.Rptr. at p. 871-872, 483 P.2d at p. 39-40.) Although Briscoe admitted that some individuals, because of the uniqueness of the event, may never return to anonymity, the court declared that, in addition to a private person's right to privacy, there is a right to return to anonymity after that person had once been exposed to the public eye and then has succeeded in returning to private life. As was held in Briscoe, it is a question for the jury to decide whether or not an individual has regained his anonymity.

The present case falls into category (3) or (4) since they deal with situations in which the identity of the actor has not been placed in public documents. Appellant was never charged with any crime arising out of the Tate-LaBianca killings. The only source of public information that respondents had at their disposal for information was the local news reports that identified appellant.⁴ The identity of the plaintiff in Briscoe in an earlier magazine article did not bar recovery for invasion of privacy. (4 Cal.3d at p. 533, fn. 1, 93 Cal.Rptr. 866, 483 P.2d 34.)

(3)

Cox holds that contemporaneous reports of information in public records deserve the greatest First Amendment protection. Conversely, it would seem to follow that reports of crimes of long ago where the actors' identities were not in the public record deserve the least protection. The benefits that accrue under Cox, i. e., bringing forth witnesses, encouraging friends and relatives to come to the aid of the victim, and guarding against the miscarriage of justice, diminish as time passes, whether the reports are based on public documents or not. Certainly, Briscoe is in accord.

(4)

Although more privacy protection should be given to information from private sources as against information gleaned from a public record when a report is of a contemporaneous crime, the factors in favor of privacy protection are outweighed by the public benefits that may be derived by publication, i. e., to encourage unknown witnesses to come forward with useful testimony, encourage friends and relatives to come to the aid of the victim, and guard against the miscarriage of justice. Although neither case discusses the situation of a report based upon private information, the rationale in both Cox and Briscoe suggests that reports of recent crimes should be privileged even though the information published was not derived from a public record. Therefore, if the present case is considered contemporaneous, whether or not the information was on the public record or not, the publication of appellant's identity is privileged.

In determining whether the publication was “contemporaneous” with the event, at least two factors would be considered where the publication occurs some length of time after the event. First, some crimes by their nature may always be “contemporaneous” in the sense that they are always in the public mind; examples, sadly, come easily to mind, the assassination of President Kennedy, Martin Luther King, and perhaps even the case at bench. (See Briscoe v. Reader's Digest Association, Inc., Supra, 4 Cal.3d at p. 538, 93 Cal.Rptr. 866, 483 P.2d 34.) Second, the extent of the role played in the event reported by the person claiming the invasion of his right of privacy is significant. Thus, the identity of the political assassin may always be in the public domain, whereas another person who played some peripheral role or who was involved only tangentially in the same event may be entitled to sink back into obscurity and anonymity with the passage of time. There are other factors as well that may be relevant in determining that fulcrum point in the balance between the free press public's right to know and the individual's right of privacy. (Id., at p. 541, 93 Cal.Rptr. 866, 486 P.2d 34; Kapellas v. Kofman, Supra, 1 Cal.3d at p. 36, 81 Cal.Rptr. 360, 459 P.2d 912.) But we need say no more on this point.

This case comes before us on a general demurrer sustained without leave to amend. It appears clear to us that a cause of action for invasion of privacy was stated.

In reversing the judgment of the court below, we observe that all that we hold is that causes of action for libel and invasion of privacy were stated, nothing more.

The judgment is reversed; the trial court is directed to enter its order overruling the general demurrer.

“Holmes pushed the matting into a more central position. Then stretching himself upon his face leaning his chin upon his hands, he made a careful study of the trampled mud in front of him. ‘Hullo$’ said he suddenly. ‘What's this?’ It was a wax vesta, half burned, which was so coated with mud that it looked at first like a little chip of wood. (P) ‘I cannot think how I came to overlook it,’ said the inspector with an expression of annoyance. (P) ‘It was invisible, buried in the mud. I only saw it because I was looking for it.’ ”

Forsher's libel, like the wax vesta of Sherlock Holmes, is invisible to anyone not looking for it and there is no one but Forsher, and those Forsher seeks to illumine, who can see it. Even with Forsher's help, I am unable to find it. Either the illumination is too dim or I am.

That Forsher is offended by his brief appearance in Helter Skelter is obvious but it is the purpose of the law of libel to compensate for the unjustly damaged character, not to vindicate affronted feelings. A libel visible only to Forsher and those he instructs is no libel at all.

There is another element of libel missing from Forsher's complaint. I refer to the requirement that the offensive statements be untrue. Forsher's complaint does contain some general allegations that Helter Skelter contains false “statements” about him but it is very unspecific except when it refers to false “implications” which are revealed by listing “omitted facts,” i. e., facts not contained in the book. In his brief Forsher concedes that “There is not a single statement in Helter Skelter which, standing alone, is both false and defamatory” and when asked at oral argument to point to one false statement about Forsher in the book, Forsher's counsel conceded his inability to do so.

Respondent Bugliosi, Helter Skelter's co-author prosecuted Charles Manson, Susan Atkins, Patricia Krenwinkel, Leslie Van Houten and Charles Watson for their roles in the hideous murders of Sharon Tate, Abigail Folger, Voytek Frykowski, Jay Sebring and Leno and Rosemary LaBianca. Helter Skelter is an account of those killings, the criminal trials which followed and other aberrant behavior of Manson's “family.”

Forsher appears in that portion of the book dealing with the mysterious disappearance during the Manson trial of Ronald Hughes, attorney for Leslie Van Houten. Hughes had gone to Sespe Hot Springs over a weekend and did not return. I quote the offending passage: “The next day we learned that Hughes had gone to Sespe on Friday with two teen-agers, James Forsher and Lauren Elder, in Miss Elder's Volkswagen. The pair who were questioned, but not held said that when it began raining, they had decided to return to L.A., but Hughes had decided to stay over until Sunday. When the two tried to leave, however, their auto became mired down, and they were forced to abandon it and hike out. (P) Three other youths had seen Hughes on the morning of the following day, Saturday the twenty-eighth. He was alone at the time and on high ground, well away from the flood area. Chatting with them briefly, he appeared neither ill nor in any danger. Polygraphed, the three were found to have no additional knowledge and they were not held. Since Forsher and Elder had last seen Hughes a day earlier, they apparently were not polygraphed and their story was taken at face value. . . . (P) The most persistent rumor was that Hughes had been murdered by the Family. There was, at this time, no evidence of this. But there was more than ample cause for speculation. . . . (P) Speculation, nothing more. Except for one odd, perhaps unrelated, incident. On December 2, four days after Hughes was last seen alive, fugitives Bruce Davis and Nancy Pitman, aka Brenda McCann, voluntarily surrendered to the police. Two of the Family's most hard-core members, Pitman had been missing for several weeks after failing to appear for sentencing on a forgery charge, while Davis who had been involved in both the Hinman and Shea murders, who had picked up the gun with which Zero had ‘committed suicide’ but had somehow left no prints, and who was the chief suspect in the slaying of two young Scientology students had evaded capture for over seven months. (P) Maybe it was just the proximity in time that linked the two events in my mind: Hughes disappearance; Davis' and Pitman's surprise surrender. But I couldn't shake the feeling that in some way the two incidents might be related.”

Later in the book, the discovery of the bodies of James and Lauren Willett is discussed as well as the pleas of guilty to their murders entered by Michael Monfort and William Houcher. In the course of that discussion the association of Monfort with “family” members Priscilla Cooper, Nancy Pitman and Lynette “Squeaky” Fromme is mentioned. Fromme was also charged with the Lauren Willett murder but, according to the book, “the charges against her were dropped and she was freed, to again assume leadership of the Manson family.” The authors then speculate on the motives of the murders: “It may be that both James and Lauren Willett were killed because they knew too much about still another murder. (P) James and Lauren. Something about those first names seemed familiar. Then it connected. On November 27, 1970, a James Forsher and a Lauren Elder drove defense attorney Ronald Hughes to Sespe Hot Springs. After Hughes disappearance, the couple were questioned but not polygraphed, the police being satisfied that when they left the flooded area Hughes was still alive. (P) At first I thought ‘Elder’ might be Lauren Willett's maiden name, but it wasn't. Nor, in checking the police reports and newspaper articles, was I able to find any description of Forsher and Elder. All I did find were their ages, both given as seventeen, and an address, from which I subsequently learned they had long since moved. All other efforts to track them down were unsuccessful. (P) It appears unlikely that James Forsher and James Willett were the same person: Willett would have been twenty-four in 1970, not seventeen. But Lauren is a decidedly uncommon name. And, nineteen in 1972, she would have been seventeen in 1970.”

There it is. The entire “libel.” The majority says this is enough to state a cause of action because “In this case, the passages which refer to appellant may be libelous because they insinuate that appellant may have been involved in the alleged murder of Hughes.” I do not see how such an inference can possibly be drawn. The passages do say that Forsher was involved with Hughes but that is concededly true. Forsher did go to Sespe Hot Springs with Hughes and Lauren Elder. Forsher and Elder decided to leave because of the heavy rains but Hughes decided to stay. And, as the book truthfully states, Hughes was seen the next day “neither ill nor in any danger.” Relating that fact negated any conceivable implication that Forsher harmed Hughes. The most objectionable line appears to be the following: “Since Forsher and Elder had last seen Hughes a day earlier, they apparently were not polygraphed and their story was taken at face value.” But that statement is also true and does not, on any fair reading, suggest that the pair did injury to Hughes. At the most it conveys the authors' opinion that the two might have been more carefully questioned about the circumstances surrounding their separation from Hughes. That prosecutors often wish that the police had followed every conceivable lead more thoroughly, even the unpromising, likely came as no surprise to the readers of Helter Skelter. If they did not know that already, the book provided them with a valuable insight. That one wishes the police had questioned Hughes' companions more thoroughly in no way suggests that one suspects that they were responsible for his disappearance. Particularly is that so in the context of the passage concerning Hughes' disappearance for the authors do speculate about who they think might have been responsible but their speculation does not include Forsher. They tell us unambiguously that they suspected Bruce Davis and Nancy Pitman.

The only other place in the book in which Forsher appears is the passage I have quoted where the authors first wonder whether James Willett and James Forsher might be the same person and then dismiss the thought. It should be emphasized at this point that James Willett was a victim of the Manson family, not a member. Even if the authors' conclusion that Forsher and Willett were not likely the same person was insufficient to clear Forsher's name of the “taint” of having been linked in the authors' thoughts, it must be remembered that the book is describing the facts after Willett's Death. No one who knows Forsher could confuse him with Willett since Forsher is alive, a condition precedent to a cause of action in libel.

The majority avoids the problems presented by the truthfulness of the text by suggesting that the libel occurs because of the “context” of the words used. It would be helpful if they could be a bit more specific. Forsher has been no more specific saying only that “In the context of a book which purports to tell the complete story of the ‘retaliation murder’ of Hughes by the Manson family and to provide the ‘answers,’ the statements concerning plaintiff's role have the effect of constructing a circumstantial case of plaintiff's involvement in the murder.” That merely restates the point argumentatively and tells us nothing about “context.” Aware of that weakness in his case, Forsher pleads an innuendo of “omitted facts” that supposedly reveal the sinister implications of the offensive passage. As the majority correctly notes, this is an action for libel on its face and therefore we may not look to the innuendo.¹ But if the majority is indeed ignoring the innuendo, what is this brooding and mysterious “context” to which they refer?

The majority seems satisfied to permit Forsher's complaint to stand even though he has shown no damage and can point to no falsehood because “all that we hold” is that a cause of action has been stated and “nothing more.” Such a liberal view toward pleading would be admirable were this not a First Amendment case. But it is a book with which we are concerned and “What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards . . . may be markedly more inhibiting than the fear of prosecution under a criminal statute.” (New York Times Co. v. Sullivan (1963) 376 U.S. 254, 277, 84 S.Ct. 710, 724, 11 L.Ed.2d 686, and see Judge Zirpoli's opinion in Sierra Club v. Butz (N.D.Calif.1972) 349 F.Supp. 934, 936-937.)

Perhaps the majority does not view this civil complaint as they would a criminal statute because of a feeling that Helter Skelter is a “sensational” book dealing with crime instead of the more elevated and noble concerns of humans. If so, they make a fundamental error. Fictional works about crime by, for example, Conan Doyle and Edgar Allen Poe, communicate with us on a very profound level. Biographies of monstrous criminals, such as Bullock's Hitler or Deutscher's Stalin, tell us things about the human condition that we ignore at our peril. That Helter Skelter may appear lower in our personal hierarchies than the works of Doyle or Deutscher is beside the point. It is not our duty to make gradations according to taste but to be mindful that “it is nevertheless often true that one man's vulgarity is another's lyric (and that). . . . it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” (Cohen v. California (1971) 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284.) That is why the Supreme Court, when striking down as inconsistent with the First Amendment a statute prohibiting the publishing of material “principally made up of criminal news, police reports, or accounts of criminal deeds . . . of bloodshed, lust or crime,” held that “The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.” (Winters v. New York (1948) 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840.)²

The majority also holds that Forsher has stated a cause of action for invasion of privacy. Since Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 543, 93 Cal.Rptr. 866, 483 P.2d 34 expressly holds that such a cause of action cannot be maintained where it is claimed that false statements are at issue, the majority's reliance on that precedent is curious. Forsher here concedes that all the statements about him are true, but his complaint nowhere alleges that the statements are true; it says, in general and unspecific terms, that they are false. And Forsher does not allege, as Briscoe requires, that the publication revealed facts so offensive as to shock the community's notion of decency.³ Nor does Forsher allege that the revelation of shocking material about his past has resulted in any ostracism, isolation or alienation from his family. (Id. at p. 529, 93 Cal.Rptr. 866, 483 P.2d 34.)⁴ Moreover, it can hardly be maintained that Helter Skelter told a “cold” story. If books are to receive the same constitutional protection as newspapers, this book which was published in November 1974, was about as contemporaneous as a deliberative book could be. When it is remembered that “Squeaky” Fromme did not level her faulty weapon at President Ford until 1975 and the reversal of Van Houten's conviction because of Hughes' absence did not occur until August 1976 (see People v. Manson, et al. (1976) 61 Cal.App.3d 102, 132 Cal.Rptr. 265) it is not surprising that Forsher did not have the temerity to allege that this was a cold story. Finally, Forsher does not deny that his association with Hughes is part of the public record and I do not see how we can ignore the following language from Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 496, 95 S.Ct. 1029, 1046-1047, 43 L.Ed.2d 328: “We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public.”

There is, to my mind, also a great danger in permitting a party to plead that a publication both libels him and invades his privacy. What will be the instructions to the jury? “If you find the statements false, plaintiff recovers; and if you find the statements true, plaintiff recovers?” Since the usual liberality accorded pleadings is inverted in First Amendment cases (New York Times v. Sullivan, supra ) it may well be that permitting the contradictory theories of libel and privacy in one action is constitutionally unacceptable. I suspend judgment on that question because I think it the better course to await a case in which a plaintiff has stated a cause of action in either libel or privacy. That is not this case.

I dissent.

FOOTNOTES

1.  Because judgment was entered pursuant to an order sustaining a general demurrer without leave to amend, factual allegations of the complaint are taken as true for purposes of this appeal.

2.  Civil Code section 45a provides in pertinent part: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo Or other extrinsic fact, is said to be a libel on its face.” (Emphasis added.)

3.  The report was a television broadcast made on the Same day five defendants entered a plea of guilty and a trial date set for a sixth defendant and was then repeated the following day.

4.  It would seem clear that a newspaper is not a public record within the contemplation of Cox.

1.  We may not look to the innuendo because no special damages have been pleaded. There is not much to the innuendo anyway. The “omitted facts” would be omitted by any editor dealing with a person, like Forsher, who did not rise to the status of a minor character. Here is the innuendo in its entirety: “a) Shortly after James Forsher and Lauren Elder were forced to abandon her Volkswagen and hike out of Sespe Hot Springs, they were picked up by two independent witnesses and driven to Los Angeles: (P) b) That these two independent witnesses were later questioned by police and verified the fact that they picked up James Forsher and Lauren Elder and the time at which they were picked up; (P) c) That each of these two independent witnesses was polygraphed by the police and was shown to have been telling the truth; (P) d) That the time at which these two independent witnesses attested to having picked up James Forsher and Lauren Elder was prior to the time three other independent witnesses, who were later polygraphed and shown to be telling the truth, reported that they talked to Ronald Hughes; (P) e) That the rainstorm which occurred during the weekend of Hughes' disappearance was the biggest of that year in Southern California; (P) f) That several people had previously died in flash floods occurring in the area where Hughes disappeared; (P) g) That subsequent to Hughes' disappearance James Forsher and Lauren Elder were questioned by the police very thoroughly for long periods of time on more than one occasion and details of their stories were carefully checked by police; (P) h) That James Forsher and Lauren Elder were neighbors of Ronald Hughes who drive him up to Sespe Hot Springs at his urging; (P) i) That James Forsher and Lauren Elder had no connection whatsoever with Charles Manson, the Tate-LaBianca killers or the Manson ‘Family.’ ”

2.  I do not mean to intimate that Helter Skelter is vulgar; the point is that my perception is irrelevant. What we learn by studying the criminally deranged I cannot say but when they appear we often wonder why we had no warning. Sometimes the answer is that people were intimidated by fear of suit. That was so in the case of the ghoulish Jim Jones who led large numbers of people from this city to their deaths in Guyana. Before Jones left for Guyana, a relative of a Peoples Temple member wrote a letter to the Bay Guardian protesting the favorable coverage of Jones, the answer was a call from a Peoples Temple lawyer: “If you ever do this again, we'll see you in court.” An unfavorable story on Jones was written for but rejected by the San Francisco Chronicle. That article did ultimately appear in New West but not until that magazine had been subjected to a good deal of pressure against running it including pressure from, of all people, the director of the American Civil Liberties Union of Northern California. (Johnson, “Heart of Darkness,” New York Review of Books, April 19, 1979, p. 6.)

3.  “Thus a truthful publication is constitutionally protected if (1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community's notions of decency.” (Briscoe v. Reader's Digest Association, supra, 4 Cal.3d at 541, 93 Cal.Rptr. at 874-875, 483 P.2d at 42-43.) The complaint reads: “At all times relevant herein the aforesaid publication of Plaintiff's identity in connection with the events surrounding the disappearance of Ronald Hughes was of little or no informational or social value. At no time relevant herein was Plaintiff's identity newsworthy; at no time relevant herein was there any substantial reason or justification for focusing public attention on Plaintiff as an individual or any legitimate public interest in ascertaining Plaintiff's identity.” All that Forsher alleges is that he would rather not appear in the book.

4.  Forsher alleges no damage, except personal umbrage: “The aforesaid publication of Plaintiff's identity in connection with the events surrounding the disappearance of Ronald Hughes has been and is highly offensive and injurious to Plaintiff and constitutes an unprivileged and unlawful invasion of Plaintiff's privacy, all to Plaintiff's damage in the sum of $2,500,000.00.”

FEINBERG, Associate Justice.

WHITE, P. J., concurs.