Fair report privilege protects comments about school audit

A San Diego radio talk show commentator was shielded from libel claims brought by a former public high school principal after reporting on an audit into whether the principal used school resources to sell ads for a gay magazine, a California appellate court ruled last week.

A unanimous three-judge panel for the California Court of Appeal in San Diego rejected arguments from the former principal that the commentator’s report on the audit conducted by school officials did not qualify for a state law that protects journalists who report on government proceedings.

The former principal, Michael Rood, filed a defamation suit against the commentator, Steve Yuhas, in 2008 after Yuhas reported on the investigation during a show on radio station KOGO. Rood appealed the case after a trial court gutted his claims under California’s anti-SLAPP statute.

SLAPPs, or strategic lawsuits against public participation, are lawsuits brought in retaliation for someone exercising his or her freedom of speech. The plaintiff’s goal is not necessarily to win the lawsuit, but to intimidate and silence critics.

Yuhas reported on the investigation after interviewing school district officials, reviewing court records in a guardianship dispute between Rood and his former partner, and verifying that the audit occurred. After discussing the investigation, Yuhas commented that he did not believe a high school principal should be using school resources to sell ads for a publication that Yuhas believed was pornographic.

California has a statute that shields from liability journalists who make a “fair and true report” of judicial, legislative and other official proceedings.

Rood’s suit alleged that the audit conducted by the district was not an investigation or proceeding covered by law, making Yuhas liable for the report. The appellate court disagreed.

"The record adequately supports Yuhas’s claims that he was given facially reliable information, investigated, and learned of an official District proceeding that involved Rood, sufficient to assert these privileges" under California law, the court said.

Guylyn Cummins, a partner at the San Diego office of Sheppard, Mullin, Richter & Hampton LLP who represented Yuhas in the lawsuit, applauded the court’s decision.

“It demonstrates why privileges are important to journalists and why the anti-SLAPP statute is important to journalists,” she said.

The court also rejected claims by Rood that he was a private figure and that the investigation was not a matter of public concern. The court said Yuhas’ statements about the pornographic nature of the gay magazine were clearly opinion protected by the First Amendment.

The court also rejected Rood’s claim that Yuhas’ reporting was malicious.

“Yuhas apparently conducted a credible level of investigation and talked to more than obviously biased sources,” the court said.