California libel retraction statute extended to cover online publications

|The Volokh Conspiracy |

A nice change, to which this blog slightly contributed. Here's the background:

Plaintiffs who win libel cases can generally recover various kinds of damages—"special damages," which are provable economic losses stemming from the libel, "general damages," which are presumed damages for loss of reputation, as well as emotional distress damages, and "punitive damages," which are meant to punish the libeler for particularly reprehensible libels. (This doesn't quite track the First Amendment proven compensatory damages / presumed damages / punitive damages line, because emotional distress damages are generally seen as proven compensatory damages for First Amendment purposes, but as "general damages" for the purposes of many states' libel law.) Often it's the general damages and punitive damages that are particularly ruinous for publishers.

But in the law in many states, general and punitive damages—anything beyond the provable economic losses that qualify as special damages—are unavailable, at least as to certain defendants, unless (1) plaintiff has promptly demanded a retraction, and (2) the defendant has refused to promptly publish a retraction. If the defendant promptly publishes a retraction, it is only on the hook for libel damages.

Ah, but which defendants get the benefit of these statutes? Many states limit this to particular kinds of publishers. Indeed, until Monday, the California libel retraction statute (Cal. Civ. Code § 48a), which dates back to 1931, applied only to "newspapers" and "radio broadcasters"; another statute made clear that "radio broadcasters" included TV broadcasters, but nothing covered other publications, such as magazines or Web sites. Indeed, last year, a California Court of Appeal decision (Thieriot v. The Wrapnews Inc.) held that Web sites don't qualify:

By its plain language, section 48a applies only when the defamatory material is published in a "newspaper" or a "radio broadcast." Defendants ask us to interpret "newspaper" to include online publications such as TheWrap. We cannot do so. "[A] reviewing court's 'fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' The analysis starts by examining the actual words of the statute, giving them their usual, ordinary meaning."

At the time the statute was enacted in 1931, or amended in 1945, a "newspaper" was understood to mean a publication that was printed on inexpensive paper, often daily. Had the Legislature intended the statute to apply to defamatory material published on an online website, it could have amended the statute to say so, or add a statute to include such websites within the definition of "newspaper," as it did when it enacted Civil Code section 48.5 in 1949 to expand the term "radio broadcast" to include both visual and sound radio broadcasting. Since the Legislature has not expanded the meaning of newspaper to include online publications, we must conclude that section 48a does not apply here, and Thieriot therefore is not limited to special damages.

Now to the news: I'm pleased to say that Monday, a new version of § 48a—introduced by assembly member Donald Wagner—was signed into law, and that version covers Web publications. The new version replaces "newspaper" with "daily or weekly news publication," which "means a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week."

To be sure, the statute still distinguishes among media; monthly magazines, for instance, aren't covered. But while the First Amendment generally protects publications without regard to how often they are published, libel retraction statutes provide extra statutory protection beyond what the First Amendment offers. And such extra statutory protection can be offered to some media (e.g., ones that the legislature thinks are especially subject to deadline pressure, or ones that the legislature thinks are especially valuable because they report on "matters of public concern") but not others.

Exactly when such distinction among media becomes impermissible is unclear—for instance, I suspect that offering such special protection only to magazines that don't express racist or unpatriotic or anti-environmentalist viewpoints would be unconstitutional, though the Supreme Court hasn't passed judgment on that. But classification based on frequency of publication, or even based on whether the magazine publishes content on matters of public concern, is likely permissible, again when it comes to these extra statutory protections that go beyond the First Amendment minimum that all defendants must enjoy.

In any event, this is a substantial victory for online speech in California, and I hope it leads to similar moves in other states (though some states already have statutes that are broad enough to cover all "publications" or "periodicals," whether print or online).

Since Wagner had been in touch with me about this, I took the liberty of asking him to write up something about his bill, and here's what he kindly passed along (some paragraph breaks added):

In … the spring of 2014 I read on the Volokh Conspiracy of the then-recent Thieriot decision. Under the law at the time, Civil Code section 48a, the "Retraction Statute," limited a defamation plaintiff's recovery to special damages in an action for "libel in a newspaper, or of a slander by radio broadcast," unless the plaintiff demanded a retraction and was refused by the defendant.

The Thieriot court declined the opportunity—a proper and admirable example of judicial restraint in my opinion—to read online publications into the explicit statutory scheme and to thereby extend the Retraction Statute to online publications. According to the court, the Legislature is well aware of the existence of online publications and can, if it so desires, extend the protections legislatively.

As a legislator, I desired to extend that protection. Because of the sound public policy behind the Retraction Statute, I believed that a substantial majority of my colleagues would agree. As a later committee analysis of the eventual bill would explain:

California's retraction statute reflects, at least in part, the value traditionally placed on freedom of the press in a democracy and the unique role that newspapers (and later radio and television) have played in the dissemination of news on matters of public concern. In upholding the retraction statute against a constitutional due process challenge, the California Supreme Court held that "the Legislature may reasonably conclude that public interest in the dissemination of news outweighs potential injury to a plaintiff from the publication of a libel, and [the Legislature] may properly encourage and protect news dissemination by relieving newspapers and radio stations from all but special damages resulting from defamation, upon the publication of a retraction." (Werner v. Southern California Associated Newspapers (1950) 35 Cal. 2d 121, 128.) More recent cases have opined that the statute was intended to protect, in particular, enterprises engaged "in the immediate dissemination of news [because such enterprises] cannot always check their sources for accuracy and their stories for inadvertent publication errors."

My first step in drafting the legislation which ultimately became Assembly Bill (AB) 998 was to contact you for your input. You responded right away and we had a substantive exchange which, as you know, found its way into the bill. After getting your thoughts, I began working with the Legislative Counsel's office to draft the specific language.

Although I am the "author" of the bill, the fact is that the Legislative Counsel's office, staffed with more than 100 attorneys, is responsible for the actual writing of all legislation. (As one of the surprisingly few lawyers in the Legislature, I perhaps take more of a hand in drafting my bills than do many of my colleagues; but the overwhelming bulk of the actual drafting is done by the very talented, experienced, and non-partisan attorneys working in the Legislative Counsel's office.)

We quickly ran into two problems. First, we were "late" in the legislative year. The session begins in January, but, by the end of February, all bills for the year must already be introduced. We were beyond the deadline.

Fortunately, there was a way around the problem. Every year dozens of "spot bills" are introduced in time to meet the legislative deadline and then they sit, not moving through the process, but are available in the event needed for a late arising issue. In short, the "spot bill" makes non-substantive changes to a non-controversial part of a code and merely holds a place in line. When needed, for example with my Thieriot fix that had missed the original deadline, the "spot bill" is stripped of its non-substantive language, the new, substantive language is amended into the bill, and the deadline problem disappears. This process was used with AB 998 to avoid the filing deadline.

For what it's worth, this is different from the justly maligned "gut and amend" process that also exists and is frequently abused. With "gut and amends," a bill has its language completely stripped and new language inserted, as with "spot bills." But in the "gut and amend" case, the old bill has already gone through the legislative process, including most importantly, had its committee hearing or hearings where it could be debated openly with proponents and opponents testifying and questions asked and answered.

When the new language is inserted, the bills then often go straight to an up or down vote without the new language—and the policy behind the new language—being debated. It is, frankly, a sneaky way to circumvent the process, deny opponents of a bill their opportunity to be heard, and ram a bad idea into law. In my five years in the Legislature, I have seen numerous bills die in committee, only to suddenly show up again for passage, usually late in the evening on one of the last nights before we adjourn. This is not what I did with AB 998. Use of a "spot bill" only avoided the filing deadline. It did not get around the appropriate committee process.

Which brings me to the second problem, the committee to which the bill was assigned did not have time to analyze and hear it.

AB 998 was referred to the Judiciary Committee for hearing once it was put into print. I have served as vice-chairman of that committee for my entire time in the Legislature and have a very good working relationship with the committee staff responsible for analyzing every bill that comes before the committee. Because of the committee's very broad jurisdiction, it has one of the heavier bill loads of any policy committee.

Thus, I was disappointed but not surprised when the chief committee consultant came to me and "explained" that there was no time, as late as we were in the session, to work up the bill, schedule a hearing, and work through the process. While I doubted that, frankly, there was nothing procedurally to do about it other than obtain the committee consultant's assurances that there were no substantive problems with the bill—i.e., that the committee majority was not using the timing issue to derail a bill that it did not like on policy grounds—and shelve it for the year. Upon receiving that assurance, trusting the consultant because of our history together in the committee, and really having no other choice, I allowed the bill to die.

With the start of the legislative session in January, 2015, I came back again with AB 998. The filing deadline was met, it was referred again to the Judiciary Committee, and I began moving it through the legislative process. As mentioned, I have a good and professional relationship with the committee staff (which is controlled by the other party) and used that relationship to work closely with staff in its review of AB 998.

The bill fortunately generated very little opposition. On April 4, I presented it personally to the Judiciary Committee for debate. In support, the California Newspaper Publishers Association sent witnesses to testify. . . . In any event, a couple of minor drafting issues were identified and, with a promise of fixing those issues, the committee unanimously approved the bill. . . . [A]mendments were made to the bill that satisfied the committee. On May 28, I presented the new version of AB 998 on the floor of the Assembly and, with no "No" votes, it was approved and sent to the Senate.

In the Senate, the process was essentially the same. On July 14, the Publishers Association and I . . . appeared before the Senate Judiciary Committee to present the bill. The committee asked for another amendment, this one broadening the Retraction Statute protections to "weekly" newspapers, which I was happy to provide.

With that, only one Senator (curiously, a Republican, John Moorlach, who is not a lawyer despite being assigned to the Judiciary Committee and gave absolutely no reason for his position), failed to support the bill and it easily passed out of committee. Legislative counsel then gave us the necessary amendment language and the full Senate approved AB 998 on March 31.

Because of the Senate amendment, the Assembly had to approve the new version of the bill. I presented it on the Assembly floor on September 1. AB 998 again passed, also again without a single "No" vote. This final legislative action sent the bill to the governor's desk. On September 28, Governor Brown signed AB 998 into law. It takes effect January 1, 2016.