Justice for Wendy McCaw’s Victims

A gathering of Southern California newspaper publishers and their peers. See Wendy, Sam and Dean?

The odious Wendy McCaw and her evil efforts to silence critics of her reign of oppression at the Santa Barbara News-Press took a beating in an appellate court Friday.

Or, in legal parlance, the justices handed her ass to her. If only she and equally toxic Sam Zell could open up some high-end taco stands with tablecloths and fancy wine with deposed Fabian Núñez and leave journalism and public service to people who know better.

The case stems from the hard-hitting story that Susan Paterno wrote for the American Journalism Review in 2006, under the headline, “Santa Barbara Smackdown.” As Justice J. Aronson put it, “The article offered a ‘behind-the-scenes look’ at the ‘turmoil’ engulfing the News-Press, including the dismissal or resignation of more than half of its 50-member newsroom, leaving others to work in a ‘climate of fear and paranoia ripped from the pages of Kafka’s ‘The Trial,’ . . . . The article described McCaw’s efforts to “silence” criticism by filing or threatening to file libel lawsuits.”

Paterno, who is head of the journalism department at Chapman University in Orange County, fought back by filing an anti-SLAPP lawsuit. SLAPP actions (the catchy phrase stands for strategic lawsuit against public participation) are often filed by journalists who have fallen prey to legal actions filed by obnoxious, unethical people. Rarely must a journalist resort to filing one against a newspaper publisher.

A sweet side effect: McCaw is on the hook to pay the tab for legal fees run up by Paterno and AJR. Belligerence and arrogance carry a price. The ruling disemboweled the libel suit of anything remotely actionable, so the case likely will be tossed on the trash heap of SoCal’s recent troubled history. Check out the Santa Barbara Independent’s account of the ruling here.

The 18-page opinion, issued by three-judge panel of the 4th Appellate District of the state appeals court in Orange County, contains a few gems for journalists who embrace the mission to seek the truth and expose bad behavior wherever they find it. Consider this wisdom:

There is no constitutional mandate requiring the press to adopt a “he said, she said” style of reporting. Indeed, the actual malice standard is not measured by what an objectively reasonable reporter would have written. “Fair and objective reporting may be a worthy ideal, but there is also room, within the protection of the First Amendment, for writing which seeks to expose wrongdoing and arouse righteous anger; clearly such writing is typically less than objective in its presentation.” (Reader’s Digest, supra, 37 Cal.3d at p. 259.)

The appellate seemed incredulous that McCaw and the company that owns the Santa Barbara News-Press, Ampersand, would file the lawsuit in the first place. After all, don’t they get a pretty good price on ink and couldn’t they have settled their scores by publishing stories on their own?

If Paterno’s statements require further explanation, Ampersand, McCaw, its lawyers, public relations experts, and crisis managers, are free to provide them. Ampersand, as the publisher of Santa Barbara’s largest circulation daily newspaper, has ample “‘access to channels of effective communication.’” (Christian Research, supra, 148 Cal.App.4th at p. 92.) “The marketplace of ideas, not the tort system, is the means by which our society evaluates those opinions.” (Grillo v. Smith (1983) 144 Cal.App.3d 868, 872.)

Oh, here the justices remind us of just how ridiculous it is of McCaw to file the suit and try to undermine a key protection for journalists everywhere.

It is ironic that Ampersand, itself a newspaper publisher, seeks to weaken legal protections that are intended to secure the role of the press in a free society. Newspapers and publishers, who regularly face libel litigation, were intended to be one of the “‘prime beneficiaries’” of the anti-SLAPP legislation. (Lafayette Morehouse, supra, 37 Cal.App.4th at p. 863.)

Of the 32 statements that McCaw alleged were libelous in Paterno’s story, the lower court found only three held any possible merit. The appellate court found none warranted further inquiry. Two of them dealt with management’s ordering then-editor Jerry Roberts to kill a story about editorial page editor Travis Armstrong’s drunken driving sentence.

From the ruling:

The trial court permitted discovery into whether Paterno harbored actual malice when her article stated that (1) former News-Press editor Jerry Roberts “was ordered to kill a story about the editorial page editor’s drunk-driving sentence” and (2) when reporter Dawn Hobbs returned from court with a report on Armstrong’s drunk driving sentence, “[O]rders ‘from on high’ forced Roberts to kill Hobbs’ story, says then Deputy Managing Editor Murphy . . . .” Ampersand never contested the literal truth of these statements. McCaw herself wrote a letter to the Society of Professional Journalists stating that management decided to “kill” the story about the drunk driving sentence imposed on Travis Armstrong, the newspaper’s editorial page editor. Ampersand nevertheless argues, and the trial court apparently agreed, that Paterno’s article could be deemed false because she “omitted material facts available to her . . . .” Ampersand contends Paterno’s statements about killing a story, while true, are actionable because the “‘gist and sting’” of the article “was that the story was killed because the publishers were directing the news content to protect favored employees, such as Armstrong. This is not true.” Ampersand specifically takes Paterno to task for failing to mention that the newspaper had previously published an article concerning Armstrong’s arrest for drunk driving on May 7, 2006. In a declaration filed in Ampersand’s anti-SLAPP opposition, Armstrong described his complaints to senior management about the unfairness of this story given Roberts’s “open animosity” to him.
As Reader’s Digest holds, Paterno had no constitutional obligation to incorporate Ampersand’s press releases or its talking points into her magazine article.

Wendy, it sounds like it’s high time to write a fat check and join the rest of your ilk back in the barnyard.