Newspaper not required to disclose 'advertorial' authors

CALIFORNIA–In mid-January, the California Court of Appeal in Santa Ana overturned a trial court order demanding that a weekly newspaper in Downey reveal the identity of the authors of anonymous “advertorials” that criticized a local hospital, but declined to base its decision on the state reporter’s shield law.

A unanimous three-judge panel of the appellate court concluded that state and federal constitutional speech and privacy rights safeguarded the identity of the individual authors who anonymously expressed ideas about a controversy involving a local hospital. The panel also found that the newspaper could invoke such rights on behalf of those individuals in order to avoid forced disclosure of their identities.

The panel, however, ruled that the newspaper could not invoke the state reporter’s shield law — which protects journalists from contempt sanctions for refusing to disclose confidential or non- confidential information — because the law generally does not apply to paid advertisements.

After a trial court in Santa Ana ordered disclosure, the newspaper refused to reveal any information about the advertorial’s source and faced a contempt order. The appellate court in Santa Ana stayed the contempt order and ultimately quashed the subpoena issued by the hospital.

The panel based its decision not to enforce the subpoena on the free speech and privacy rights of the advertorial authors, rather than the reporter’s privilege under the state shield law. The panel described the shield law as “riddled with holes” because it only provided immunity against contempt, rather than a privilege against testifying.

Although the panel conceded that the shield law might cover paid advertorials “under certain circumstances,” it found in this case that the newspaper failed to show it had a journalistic — rather than a commercial — purpose in publishing the advertorials at issue.

The authors of the advertorials, however, had engaged in “core political speech” that the panel protected by quashing the subpoena against the newspaper.

Downey Community Hospital subpoenaed the newspaper, The Eagle, for materials that would reveal the identity of the authors of paid editorial advertisements that criticized hospital management practices.

The hospital had brought a defamation suit against a doctor and a number of unidentified individuals as a result of a running controversy over allegations of self-dealing and other misconduct by hospital managers.

The subpoena issued against The Eagle sought the identity of the advertorial authors because the hospital believed those authors may have been responsible for materials subject to the defamation claim as well, and wanted to add them as defendants in that lawsuit. The Eagle was not named as a party to the underlying defamation claim.

The appellate panel found that disclosure of the identity of the advertorial authors most likely would not reveal the identity of the authors of the material subject to the hospital’s defamation claim, and therefore the uncertain utility of disclosure did “not warrant shutting off political discourse.” (Rancho Publications v. Orange County Superior Court; Media Counsel: Kelli Sager, Los Angeles)