Date: Wed, 30 Dec 98 22:09:45 -0000
Constitutional
Law
ADL Not Completely Protected By Reporter's 'Shield'
Law Some Of It's Alleged Targets Are Entitled To
Discover What The Group Found Out About Them
By Philip Carrizosa
Daily Journal Senior Writer
Reinvigorating a suit that accuses the Anti-
Defamation League of illegal spying, a state appeal court
ruled Monday that at least some of the alleged targets
are entitled to find out just what ADL learned about them
and what, if anything, may be been disclosed to the
governments of Israel and South Africa.
In a 3-0 decision, the 1st District Court of Appeal
said the ADL is not completely protected by the
reporters' shield law.
"ADL is protected under the First Amendment only to
the extent its activities or those of its agents
constitute journalism," wrote Presiding Justice Anthony
Kline. "Thus allegations that ADL and its agents
privately disclosed non public information about
[persons] to foreign governments or others not acting as
ADL journalists are outside the scope of the journalist's
privilege."
While the decision in Anti-Defamation League of
B'nai B'rith in Superior Court, A090694, does not the the
17 plaintiffs in the case everything they wanted, the
ruling might give them access to a great deal of new
information currently in the hands of the ADL and San
Francisco police.
Woodside attorney Paul McCloskey, the lawyer for the
plaintiffs and a former congressman, said he was
"delighted" with the ruling because it allows the
plaintiffs to proceed with discovery.
"This sweeping claim by the defendants that they
have complete immunity from discovery laws has been
completely smashed by the courts," McCloskey said.
Although it is not clear whether the plaintiffs will be
able to learn the ADL's sources, the informati on that
will now be disclosed is "critical" he said.
But an attorney for the ADL said the ruling will
actually help the league and may pave the way for
dismissal of the suit. Stephen W. Bonse of San
Francisco's Heller Ehrman, White & McAuliffe said he
believes the discovery ordered by the appeal court will
yield no additional significant informations. "I doubt
there is anything left to be disclosed," he said adding
that the ADL WILL "absolutely not" seek review from the
state Supreme Court.
The ruling came in a discovery dispute between the
ADL and a group of 17 individuals who claim that the
Jewish civil rights organization secretly gathered and
disclosed personal information about them because of
their opposition to the apartheid policy o f the former
government of South Africa or because of their criticism
of Israeli policies toward the Palestinians.
The information-gathering was revealed five years
ago when San Francisco police searched the ADL's offices
after learning that one of its own officers might have
been providing confidential government information to Roy
Bullock, the ADL's local "fact fin der."
Then-District Attorney Arlo Smith later sued the
ADL, but the case was settled after the ADL paid $75,000
and agreed to a permanent injunction against obtaining
information the group could not be disclosed to it.
In the meantime, the 17 plaintiffs proceeded with
their civil suit, alleging the ADL violated California's
Information Privacy Act, which allows exemplary damages
of at least $2,500, plus attorney fees and costs, for
disclosing personal information from government records.
In response to discovery requests, the ADL asserted
that it was a journalist and qualified for protection
under the qualified journalist's privilege set forth in
Mitchell v. Superior Court, 37 Cal3rd 268 (1984). Judge
Barbra Jones, now an appeal court ju stice, ruled that
ADL, which publishes magazines and newsletters, qualified
as a journalist.
After conducting further discovery, the plaintiffs
renewed their document requests, arguing they now
satisfied the criteria of Mitchell. This time, Judge Alex
Saldamando allowed discovery into all ADL files seized by
San Francisco police as well as many of ADL's internal
files on its information gathering activities.
At first, the appeal court denied the ADL's appeal
to block Saldamando's discovery order.
But the state Supreme Court ordered the appeal court
to hold arguments and reconsider it's decision.
In its 30-page opinion Monday, the appeal court
ruled that the ADL is immune as a journalist for
violating the Information Practices Act as to all but one
and possibly three of the plaintiffs. One who taught a
class on Palestinians at UC Berkeley, is cle arly a
private figure and possibly two others are as well, the
court said.
But most of the plaintiffs have been sufficiently
involved in Middle East or South African causes to be
considered public figures and thus subject to the
journalist's privilege, Kline said.
Nonetheless, the privilege protects the ADL only to
the extent that its activities were limited to
journalism, Kline said. If, as the plaintiffs contend,
the information was disseminated to foreign governments,
"the protections of the First Amendment wou ld not be
available, because private disclosures of such
information to foreign governments could not conceivably
constitute legitimate and constitutionally protected
journalistic activity,' Kline wrote.
"Accordingly, discovery tailored to reveal whether
such private disclosures were made should be permitted"
concluded Kline, who was joined by justices Paul Haerle
and James Lambden.
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