The California Supreme Court dodged a chance to rule on the existence of the neutral reportage privilege in that state. In affirming the court of appeal, the California Supreme Court held only that state law does not recognize a neutral reportage privilege for republication of a libel concerning a private figure plaintiff. Khawar v. Globe Int'l, Inc., 1998 Cal. LEXIS 6880 (1998). (The court of appeal decision was summarized in The First Amendment and the Media - 1998 at page 89, so only a brief recitation of the facts is necessary here.)

   The case revolves around an article by the Globe newspaper discussing a book entitled The Senator Must Die. In the book, author Robert Morrow alleged that Sen. Robert F. Kennedy's 1968 assassination did not come at the hands of convicted assassin Sirhan B. Sirhan; rather, Morrow alleged that the Iranian shah's secret police, working with the Mafia, carried out the assassination. Morrow identified the killer as a young Pakistani named Ali Ahmand.

   The Globe carried the article in its April 4, 1989 issue giving an abbreviated, uncritical summary of the Morrow book. The Globe article included a photograph from the book showing a group of three men standing near Sen. Kennedy; the Globe enlarged the picture and added an arrow pointing to one of the men, identifying him as Ali Ahmand. In fact, that man was Khalid Khawar. The article's publication caused Khawar to fear for the safety of himself and his family. He received death threats and his house was vandalized on several occasions.

Lower Court Rulings

   Khawar sued Morrow, Roundtable Publishing Co. (the publisher of The Senator Must Die), and the Globe. After Morrow defaulted and Roundtable settled its case, the Globe continued to defend in court. A trial court jury returned a special verdict in favor of Khawar, stating that: (1) the Globe article contained statements about Khawar that were false and defamatory; (2) the Globe published the article negligently and with malice or oppression; (3) Khawar was a private figure; and (4) the Globe article was a neutral and accurate report of the book. The parties previously had agreed that the final two special verdicts would be advisory in nature. The jury awarded Khawar $100,000 for injury to his reputation, $400,000 for emotional distress, $175,000 in presumed damages, and $500,000 in punitive damages.

   The trial court reviewed the advisory verdicts and held that: (1) the Globe article was not an accurate and neutral report of the statements and charges made in the book; and (2) Khawar was a private figure (agreeing with the jury's decision). It granted judgment on the special verdicts for Khawar and against the Globe in the amount of $1,175,000.

   The court of appeal affirmed. i, 51 Cal. App. 4th 14 (Cal. App. Dist. 2 1997). It found that: (1) Khawar was a private figure; (2) California has not adopted a neutral reportage privilege for private figure cases; (3) in light of these conclusions it was unnecessary to decide whether California has adopted a neutral reportage privilege for public figures or whether the Globe article was a neutral and accurate report of the Morrow book; and (4) the evidence supported the trial court's findings of negligence and malice.

California Supreme Court

   The Globe appealed to the California Supreme Court. In a decision released on Nov. 2, 1998, the California High Court upheld the court of appeal. Khawar v. Globe Int'l, Inc., 1998 Cal. LEXIS 6880 (1998). The California Supreme Court held that Khawar was a private figure and that the neutral reportage privilege does not exist in cases where republication is the basis for libel involving a private figure plaintiff.

   The California Supreme Court first addressed the issue of whether Khawar was a public figure or private figure. It reviewed the major jurisprudence in this area before coming to its conclusion that Khawar was a private figure. The California Supreme Court emphasized Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), in which the U.S. Supreme Court explained that it had imposed the actual malice requirement on defamation actions by public figures because such persons 'usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy' and 'because they have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.' Khawar, 1998 Cal. LEXIS 6880 at 7 (citing Gertz, 418 U.S. at 344-45). The California Supreme Court noted that there are two types of public figures: those who occupy positions of such persuasive power and influence that they are public figures for all purposes, and those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.

   The California Supreme Court held that Khawar did not fit either definition of a public figure. He certainly did not possess such power and influence that he was a public figure for all purposes. Nor had he injected himself into the controversy surrounding the Kennedy assassination so as to become an involuntary public figure. The court disagreed that publication of the Morrow book drew Khawar into the forefront of the public controversies surrounding this assassination:

Assuming a person may ever be accurately characterized as an involuntary public figure, this characterization is proper only when that person, although not having voluntarily engaged in the public's attention in an attempt to influence the outcome of a particular controversy, nonetheless has acquired such public prominence in relation to the controversy as to permit media access sufficient to effectively counter media-published defamatory statements. Khawar, 1998 Cal. LEXIS 6880 at 10.

   The court also disagreed that Khawar had thrust himself into the controversy by standing next to Sen. Kennedy on that fateful night in 1968. The court held that Khawar's conduct occurred before any relevant controversy arose. This action was trivial at best. It was not undertaken as an 'attempt to influence the resolution of the issues involved.' Id. at 13 (citing Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157, 168 (1979)).

Neutral Reportage Privilege

   The court moved to the neutral reportage privilege, holding that it does not apply in cases where republication gives rise to a libel suit by a private figure plaintiff. The neutral reportage privilege is an exception to the common law rule that one who republishes a defamatory statement is deemed to have adopted it. It has been defined as follows by one federal court of appeals: "[W]hen a responsible, prominent organization ... makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity." Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002 (1977).

   The privilege does not exist in all jurisdictions. The U.S. Supreme Court has never held that the First Amendment mandates a neutral reportage privilege. It has been rejected entirely by a number of state and federal appellate courts. See Dickey v. CBS, Inc., 583 F.2d 1221, 1225-26 (3d Cir. 1978); McCall v. Courier-Journal and Louisville Times, 623 S.W.2d 882 (Ky. 1981); Postill v. Booth Newspapers, Inc., 325 N.W.2d 511 (Mich. App. 1982); Hogan v. Herald Co., 446 N.Y.S.2d 836, 842 (N.Y. App. Div. 1982).

   The California Supreme Court had not ruled on the existence of the privilege in that state and declined to do so in Khawar. Because it had already held Khawar to be a private figure, the court decided that a ruling on the existence of the privilege was best left for another day.

   The court ruled that the privilege does not exist in cases involving private figures. It noted that, among the courts that recognize privilege, almost all limit its existence to cases involving public figures. The court was persuaded by the arguments of commentators that republication of accusations made against private figures are never protected by the neutral reportage privilege because recognition of an absolute privilege would be inconsistent with the U.S. Supreme Court's insistence on the need for balancing the First Amendment interest in promoting the broad dissemination of information relating to public controversies against the reputation of private figures.

   The California Supreme Court found limited value in the republication of accusations against private figures. It stated:

[O]nly rarely will the report of false and defamatory accusations against a person who is neither a public official nor a public figure provide information of value in the resolution of a controversy over a matter of public concern. On the other hand, the report of such accusations can have a devastating effect on the reputation of the accused individual, who has not voluntarily elected to encounter an increased risk of defamation and who may lack sufficient media access to counter the accusations. Khawar, 1998 Cal. LEXIS 6880 at 21.

   Although many feared the court of appeal decision would require independent research for controversial book reviews, it does not appear that the California Supreme Court's decision will change the status quo in that field. The court specifically stated that its decision "does not consider whether republication of a defamatory statement in the context of a book review would require a different analysis of result." Id. at 15 n.1. It noted that the Globe presented an egregious set of circumstances where the Globe made claims that required independent research. Specifically, more than 20 years had passed since the assassination, another man had been arrested and convicted of the crime, and the FBI itself had never considered Khawar a suspect in the crime.

   The court also ruled on three minor issues. It held that the trial court had sufficient evidence to support the jury's finding of actual malice, allowing for the awarding of punitive damages; it affirmed the court of appeal's ruling that the evidence was sufficient to support the jury's finding of negligence; and it held that the trial court correctly injected an "original libel" theory into the claims made at trial.

   The Globe has filed a petition for rehearing with the California Supreme Court. It has also indicated that it will file a petition for writ of certiorari with the U.S. Supreme Court if the hearing request is denied.